IP Legal Landscape for AI

Artificial Intelligence (AI) as technology has spawned the landscape of Intellectual Property (IP) Law. While AI is not just about automation it is about intelligent automation. The concept of Machine Intelligence has started to evolve while AI is making use of Machine Learning and Deep Learning Techniques. In the context of IPR, there happen to be many inventions wherein human being was an Inventor. However, in the context of AI, there seems to be a bit more different since IP in the context of AI also brings to light Machine as an Inventor. While AI primarily relies on trained Data Sets that were incorporated into the Algorithms and subject to Machine Learning and Deep Learning Techniques the AI Algorithms are turning to be more intelligent.  

Creation and Ownership

AI in the context of IPR assumes greater significance since a lot of Intellectual Property has created and generated not just out of the output of such AI Algorithm but the training Data Sets are also amenable to Intellectual Property. 

One of the important aspects in the context of AI and IP is that of Ownership and Creation. Given the nature of AI, it is possible that AI Algorithms may be able to come up with different outputs which may be a creation of the AI Algorithm using techniques like Machine Learning and Deep Learning. In this kind of scenario, the Ownership of such output generated by the AI Algorithm assumes greater significance. 

Can AI Systems be considered as creators of any Intellectual Property? 

However, to answer this question it becomes important to consider the legal status of AI. In case no legal recognition is accorded to AI, then the attribution of Ownership to AI Algorithm shall be challenging.  

In case no recognition is accorded to AI then such creation may be attributed to the creator of AI Application and the same may be an entity or an individual. However, can a Human Being i.e., the creator of an AI Algorithm be attributed with Ownership for a creation created by an AI Algorithm independently using Machine Learning and Deep Learning techniques? In this context, Copyright and Patent Law assume greater significance since such creations are protected under these laws.  

Further, in case an AI Algorithm is coded by “A” Company and the same is sold to “B” Company and “B” Company provides training Data Sets and the AI Algorithm using Machine Learning and Deep Learning techniques comes up with its own output, who can be attributed Ownership in this scenario? Is it the Coder who has coded the AI Algorithm or the Company that provided the trained Data Sets or the AI Algorithm itself, who can be attributed the Ownership with regard to the same?  

Given the general principle in IP, that the Creators and Developers become the First Owner of Intellectual Property, does the same be applicable in the context of AI?  

Can the AI Algorithm assume Ownership with regard to the output produced by it? However, can concepts like Work for Hire be applicable to AI Algorithms? However, if there is no legal status accorded to AI, then attributing the same to the Creator of the AI Algorithm be considered similar to Work for Hire?  

However, given the fact that the concept of Work for Hire is all about the Hiring Agency becoming the Owner of Intellectual Property, with regard to the Work performed by the person or entity hired by the Hiring Agency. Based on the above can it be considered that the Intellectual Property related to the output of the AI Algorithm be owned by the entity or individual creating the AI Algorithm.  

Deep Fake AI makes use of AI for the purpose of superimposing Audio, Video, Image on another image to create a look like and bogus content Images Video.  However, in this kind of scenario, Intellectual Property relating to such Audio, Video Images is made use of for creating such Imposters or Fake Images, Audio, Video.  

Can the output of such Deep Fake AI be subject to Intellectual Property? The answer to this question opens up challenges with regard to the Creator of the Original Work and the Creator of the Deep Fake Work. However, it is advisable to have an equitable approach in this regard.  

Another interesting scenario is, given the nature of AI, primary reliance on Data and Data Sets, however, in case such Data and Data Sets are subject to protection under Intellectual Property can the same collide with the Innovation in AI? It may be advisable to include some parameters under fair use specifically in the light of AI yet striking a balance between IP Protection and Innovation.  

Licensing

Can an AI Algorithm be provided with a License with regard to any Intellectual Property that is existing in the trained Data Sets possessed by the AI Algorithm? Further, the question that arises is in case the Owner of the AI Algorithm is provided with the License with regard to Intellectual Property with regard to the trained Data Sets, does that License also cover inclusion of the same in the AI Algorithm. However, in case there is no specific mention of the same, or the license terms are silent in this regard, then the same be considered as breach of Licence Terms. Yet another question that arises in the context of AI and IPR is, can the Intellectual Property arising out of the output of the AI Algorithm be subject to License? Can IP Licensing arrangements or agreements be executed with regard to the output of the AI Algorithms? Can the Owner of the AI Algorithms or the Creator of the AI Algorithms have the authority to enter into agreements in this regard? However, an affirmative answer to these questions primarily rely on the attribution of Ownership with regard to the Intellectual Property arising out of the output generated by the AI Algorithm.   

IP Rights

Given that Intellectual Property Rights are provided under the IP Legal Regime, can these rights be made applicable in the context of AI? However, in case the IP Ownership with regard to the output of the AI Algorithm is vested with the AI Algorithm itself, then it is a different approach altogether. Can an AI Algorithm itself be amenable to the IP Legal Regime? Can the AI Algorithm itself exercise the IP Rights made available under the IP Law?  

Suigeneris Rights are rights applicable for protection of Databases. Given the nature of AI, the AI Algorithms primarily rely on Data and trained Data Sets and in this context, are the Suigeneris Rights applicable for AI based inventions or Databases? However, if the output of the AI Algorithms is based on the trained Data Sets then it may be subject to Intellectual Property. However, can the output of such AI Algorithms be subject to Suigeneris Rights and Intellectual Property? However, this may lead to the overlapping of IP Rights. 

 Usually, IP Rights are granted to natural persons, in this context can the AI be treated as Natural Person?  

Infringement

In case the AI Algorithm makes use of Data, subject to Copyright without proper authorisation in the context of Machine Learning, does it constitute Copyright Infringement? Can an AI Algorithm be sued for any Intellectual Property   Infringement? In this context, the Legal Status of AI becomes imperative since unless there is Legal recognition accorded to AI Algorithms, it cannot be sued, nor it can sue. So, therefore, in this scenario, the Liability may be cast to the creator of the AI Algorithm in case no Legal recognition is accorded to AI. 

Yet another consideration for determining Infringement for IP is drawing an inference between Incidental Copy and Intentional Copy. Analysing the same under the regime of Strict Liability, irrespective of the intention in case a copy is made, Liability can be cast.  Another important aspect with regard to IP Infringement in regard to AI is can an AI Owner hold accountability for the IP Infringement of an AI Algorithm and such AI Owner hold responsibility for any copy be it Incidental or Intentional. 

How can damages be assessed or determined in case of IP Infringement of AI Algorithm? Can Mensrea and Actus Reus be attributable to AI Algorithms in case of IP Infringements? Does an AI System become amenable to a Court order for removable of Infringed material? However, such Infringed Material is used incidentally for creating an entirely new output, can the same be considered as Infringement? In case the Database possessed by an AI Algorithm is similar to any Database that is subject to Copyright Protection, does this amount to Infringement?  

It may be possible that the training Data and Data Sets possessed by the AI Algorithm may contain Trademarks and Wordmarks, these may be used for the purpose of identifying and realising a particular brand. Can the same constitute Trademark Infringement? In order to prove IP Infringement in the context of AI can the complainant be able to prove where such Infringement has taken place, and this becomes more challenging in the light of AI decision making since the decision-making process taking place in the Black Box shall be a challenge for identification. Another important question in determining in Liability in Infringement is to determine whether such Infringement was foreseeable when the AI Algorithm was created or programmed. It may also be possible that in case the AI Algorithm operates in its own neural network, it may generate new output which cannot be credited or foreseen by programmer or controller of the AI Algorithm.  

Further, in case of AI, Algorithm is used in protecting trade secrets and there is inadvertent disclosure of such trade secrets by an AI Algorithm, assessing and determining the scope of Liability and Infringement may be difficult. However, a 2 tier approach may be suggestive in this regard which may make the Owner or the Controller of the AI Algorithm liable and accountable in case the same has taken place with their knowledge and they were aware of the same and the other being to cast off liability and accountability with regard to the Controller or the Owner of the AI Algorithm keeping in view the fact that it was beyond their control and has taken place on the basis of Machine Intelligence.  

However, Contributory Infringement in the light of AI and IPR is ticklish as any Infringement by AI Algorithm may be contributable and attributable to the Controller or Owner of the AI Algorithm.   

However, in the case of vicarious liability, the relationship between AI Algorithm and the Owner or Controller of the AI Algorithm becomes important in establishing where the Infringement has taken place also needs to be considered. Further, did the Controller or Owner of the AI Algorithm have the control over such output, could the same be exercised to prevent the Infringement would also have to be looked into.  

Case Studies 

AI in Music 

In case an AI Algorithm comes up with its own music creation can the same be subject to Intellectual Property Protection? Generally, all musical recordings are subject to Copyright and are capable of Copyright Protection. However, these kinds of protection are normally available to Natural Persons, but can the AI be considered as a Natural Person? What is the Legal recognition to AI in this regard? Who owns the rights arising out of such musical recordings composed, created, and developed by an AI Algorithm? Is the Owner or Controller of AI Algorithm the Owner or Controller of the Intellectual Property arising out of such musical recording? Is there a Work for Hire kind of an arrangement between the AI Algorithm and the Owner or Developer or the Creator of the AI Algorithm? If so, in this kind of a scenario Legal Status has to be accorded to the AI Algorithm in order to establish that there was some kind of Legal Relationship between both these parties. Further, in a Composition, if the AI Algorithm Infringes on any other Intellectual Property who is Legally Accountable and held Responsible for such Infringements? Can an AI Algorithm be sued for IP Infringement or is it the Owner of the AI Algorithm would be accountable for such Infringements taken place through the AI Algorithms? 

However, in order to understand the Liability an also determine the Scope of Responsibility in this regard it becomes very important to identify whether such creation was based on trained Data being programmed into the AI Algorithm or was it the Machine’s intelligence that has created this particular musical composition? Do the rights under the Copyright Law be applicable for such musical recordings is another interesting element since in case the rights are made applicable then the kinds of rights including the Right to License, Right to Reproduce, Right to Broadcast, and Right to Perform, all these other Rights are associated with Copyright would also have to be examined in the light of AI. In addition to that in case, there is an Incidental Copy or there is an Intentional Copy how does this get to be proved in case such Musical Composition is composed or created or conceived by an AI Algorithm.  

AI as Content Creator  / Content Writer 

In case, AI Algorithm is used for Content Creation, then any Content that is created, conceived by an AI Algorithm also gets subject to Intellectual Property. The ownership of such Intellectual Property created by such AI Algorithm becomes significant. Who owns such Intellectual Property created by AI Algorithm? 

However, such content gets amenable under Copyright considering the same as literary work. Further, can AI Algorithms create, conceive content on its own without infringing upon the Intellectual Property belonging to others? 

AI primarily relies on trained data sets and machine intelligence is acquired through machine learning and deep learning techniques. In this scenario, establishing infringement in the light of content created by AI Algorithm may be a challenge. Further, it may be difficult to exactly determine where the infringement has actually occurred.  

Determination of the scope of accountability, liability, responsibility in this regard becomes essential in this regard. In case, new content or output is created by an AI Algorithm based on any copyrighted material, does the same amount to Copyright Infringement? 

Any content created, conceived by an AI Algorithm may also cause any kind of harm, be it psychological or criminal or actual or virtual to any individual or entity. Given such scenarios, assessing the scope of liability and determining responsibility is another challenge, as AI Algorithms primarily make use of large chunks of data and data sets. Sometimes, such content may be created, conceived by the machine itself subject to machine intelligence, then the accountability, responsibility will have to be analysed differently. 

Let us take the case of AI Algorithm being used by an E-Commerce Platform for the purpose of identification, analysis of different brands and for this purpose the brand names, logos are fed into the AI Algorithm at various layers. Given this scenario, does the same amount to trademark infringement. However, in case no permission is obtained from the respective IP owners in this regard also amounts to IP Infringement. Further, in case there is any men's rea, actus reus established in this scenario, the same may also amount to Passing Off and criminal charges may be filed in this regard.  

However, even if permission to use the same or license is provided, is it covering the scope of using the same in the context of machine learning is an important aspect to be considered. Specific permissions in this context may be necessary to immune from trademark infringement. 

Further, in case AI Algorithms are used for generating fake narratives by creating fake electronic records or forged electronic records and the same is prejudicial to the interests of the Intellectual Property Rights of the owner, then civil and criminal charges can be initiated in this regard.  

AI – Artistic Work 

In case of AI Algorithm is used for creating, conceiving artistic works including but not limited to drawings, paintings, designs, sketches etc., then such output created by AI Algorithm is also subject to Intellectual Property and can be protected under copyright as artistic works. However, in case AI Algorithms infringe upon any copyright while creating such output, then who is accountable and responsible for the same? 

Further, in case such artistic works are modifications, derivations of the artistic works protected under copyright, can the same constitute copyright infringement? 

There is also a chance that sometimes that such AI Algorithms may share such artistic works to different stakeholders, does it sharing also constitute infringement in case such artistic works consist of copyright material. 

Let us take an example of AI algorithm being used for creating new designs in the field of the fashion industry, can such designs created by AI Algorithms be registered as Designs under Design Laws. 

Is it possible that mere sharing of such designs to different stakeholders by AI Algorithm amount to public showcase and be denied registration under the Designs Law? 

Further, in case such AI Algorithms are used for creating counterfeit designs, then can the owner of AI Algorithm plead innocence that the same was created as a result of machine intelligence?