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Artificial Intelligence and IPR: Obstacles and Viable Solutions​

By: Sakshi Sharma, Advocate


Artificial Intelligence is a fascinating field that brings together professionals from several fields to develop computers and software that have human-like abilities. Smart technology may, in reality, imitate some human behaviors such as learning, creating, inventing, connecting with others, and having a conversation. Because the true author and inventor is no longer a human, but a machine, Artificial Intelligence (AI) is challenging copyright and patent law. The issue examines whether and to what degree creative and inventive outputs generated autonomously by AI are suitable for protection under traditional Intellectual Property (IP) rights. It’s expanding at an exponential rate all across the world. This explosion raises the issue of AI (IP) rights management. There have been talks and moderations in it, but no decision has been reached on the subject. The subject of whether or not artificial intelligence’s work should be given special status continues to be debated. When it comes to the regulation of IPR in artificial intelligence, there are few oddities. There are problems about patent and copyright ownership, as well as significant worries about infringement difficulties and fines. With the advancement of technology, even with international agreements and conventions in place, there is no clarity on the law. This study aims to provide insight into the growing scope of IPR laws and artificial intelligence, as well as the inherent issues that a global perspective on the subject presents.

What is Artificial Intelligence? – A Common Legal Definition

Computers have advanced to the point where they can make judgments on their own when combined with human intelligence. Artificial intelligence is the term used to describe a computer system’s ability to make judgments on its own. Mr. John McCarthy, a computer scientist, coined the term “artificial intelligence” during a conference in 1956. It was the idea of a computer processing and acting on data in such a way that the result is similar to how an intelligent person would respond to similar input, according to him. Artificial intelligence, to put it simply, is the ability of a machine or a computer program to think and learn. In its ability to learn from experience, artificial intelligence mimics human intelligence. It can recognize patterns and, based on its own deep machine learning experience, distinguish objects, people, complex human data, and circumstances. Human capabilities are imbued in software algorithms and computer hardware by Artificial Intelligence. Artificial Intelligence in a legal-technical term refers to a combination of software and data.

Evolution of A.I. in IPR

Artificial Intelligence has been around for over a century. Antiquity’s Greek mythology was the first to address the subject of robots and artificial humans. Since then, there have been numerous significant breakthroughs in the field of AI, including the enhancement and development of Alan Turning’s Turning Tests, which test insight, and ELIZA, a distinctive language used in PC preparation. In terms of AI, the last three decades have been crucial.

In the case of Naruto v. Slater, often known as “The Monkey Selfie Case,” a San Francisco court refused copyright petitions for a selfie-taking macaque monkey and also represented the stand against AI. The modern sciences have important information, but it does not qualify as a creation by traditional definitions. This all adds up to the reality that AI is booming around the world, along with economic progress, and the need to develop and examine its fundamental structure, which includes ownership, licensing, abstracts, and so on, is more crucial today than ever. Humans are only considered creators and so IPR holders and infringers under current law. It has also prompted a slew of new responsibilities in relation to AI-generated work.

A.I. and IPR – Indian Scenario

India’s development strategy includes a significant degree of technical advances, including AI. The country has experienced rapid technological change, ranging from online shopping to the use of online car services. In a developing country like India, the problems are much more serious because the basic infrastructure needs to be updated. In India, there are well-established patent and copyright laws. There is, however, no formal act or law that regulates AI. Existing rules do not address AI and are based on traditional intellectual property kinds such as books, creative writing, and discoveries. The ambit of AI is far more complex and needs to be dealt in a particular fashion, different from the previous regime. Computer programs, business techniques, and mathematical formulae are not deemed patentable inventions under the Patents Act of 1970.

Related Sections in Patents Act, 1970 & the Copyright Act

The phrases ‘patentee’ in Section 2 (p) and ‘person interested’ in Section 2 (t) of the aforementioned Act present a barrier to AI being included in its scope. The Act expressly excludes any other person who is interested in being human as a patentee. Under the Copyright Act, there are two major theories which define the uniqueness of the work under this Act- Sweat of the Brow Doctrine and Modicum of Creativity. Because the philosophy allows for a minimum level of originality, AI’s original work can be included. However, under section 2 (d) of the Act, copyright rights are granted to the “creator” of the work.

Can Artificial Intelligence be considered a Legal Entity?​

The first problem in building an Intellectual Property Right Regime for Artificial Intelligence is determining whether Artificial Intelligence can be given a legal body. It has the legal authority to (1) enter into agreements or contracts, (2) accept duties, (3) incur and pay debts, (4) sue and be sued in its own right, and (5) be held responsible for illegal activity. Only individuals who are legally recognised as natural or artificial persons are granted rights under the law.

 Though recent trends suggest that machines can be granted legal personhood. In 2017, an Artificial Intelligent Robot named Sophia was granted the world’s first robot citizenship in Saudi Arabia, a country that has been repeatedly chastised for obvious violations of human rights. Sophia is now a full citizen of the United States. Only a person can sue or be sued, according to Common Law, and this surely applies to Intellectual Property Rights. As a result, when considering legal rights to artificial intelligence, the subject of personhood for non-human beings becomes a major topic. The term “Juristic Person” implies that an entity is recognized as a person under law while it is not otherwise. In other words, it is an artificially made person, not a natural person, who is to be recognized in law as such.

The notion of legal personality can be applied to a non-human entity in a variety of ways and in accordance with the law as needed. Even if it is evident that a religious idol will be unable to carry out responsibilities such as litigation or enter into contractual obligations such as signing a contract, it may be awarded such status. Religious Idols have been awarded legal and juristic identity status by the Supreme Court of India in a number of cases, allowing them to retain property and pay taxes through their representatives. Artificial Intelligence can be used in a similar way.

Artificial Intelligence and Trademarks​

Trademark law aims to eliminate any consumer uncertainty over a brand’s logo, appearance, packaging, or any other markings that identify a specific brand or firm. It’s difficult to determine how AI can infringe on a trademark, and difficulties such as patent and copyright issues may develop. There have been occasions when trademark infringement has been raised in relation to AI. This issue is likely to worsen as artificial intelligence (AI) is increasingly used in retail and commercial structures, as well as security and payment mechanisms. There are no specific laws in any country in this regard, and it is urgent that regulations be enacted to avoid more misunderstanding in the coming years.

What if AI is the owner of an intellectual property?​

When an AI is the owner of an idea or a creation’s intellectual property rights, problems about infringement arise. To begin with, if AI is given the same status as an individual when it comes to developing or inventing a work, it should be forced to enter the sphere of infringement and enforcement as well. An AI program should be able to sue for infringement and engage into legal contracts on its own, which does not appear to be practical or appropriate. This demonstrates that AI is not a legal entity. Second, when an AI infringes on a third-right, party’s the issue of accountability arises.

Cases relating to A.I. under IP Laws​

The question in Burrow Gilles Lithographic Co. v. Sarony was whether an image could be accorded copyright protection because there was a conflict between creative and mechanical work. The court determined that copyright protection can be granted to a product that is the result of a machine that is, in turn, the result of human creation. It further limited their protection by noting that mechanical labour is not considered creative. As a result, granting copyright for works created by AI systems would be difficult if a strict approach like this were applied to them.

The court distinguished between human and artificial works in another similar decision, Bleistein v. Donaldson Lithographing Co. In order to make a copyrightable work, Justice Holmes emphasised the importance of human nature. The Court stated emphatically that nothing that was not created by man could be copyrighted.

In the matter of Louis Vuitton v. Google France, there was a dispute about keyword advertising and Google’s automated choices, which were believed to be infringing on the petitioner’s trademark. The court, however, decided that there is no infringement unless the party involved actively participated in it.

In another international case of Andrien v. Southern Ocean County Chamber of Commerce, the court concluded that in order for a work of authorship to exist, it must be written by a legally recognised author. In most cases, the author is the person who comes up with the copyrightable phrase and fixes it, or causes it to be fixed, in a tangible form. The Copyright Act limits the author to living human beings for all purposes. This may be seen in the several parts that explain the author’s kin, lifetime, and death.


Here, the analysis that could be made is that the difficulties surrounding AI and IPR are currently being addressed through the interpretation of the courts. However, there is a requirement for well-structured, well-analysed, and well-defined laws and regulations. Existing IPR rules should be amended to address the issue of AI as well. There may be more value for future inventions if AI is used. India has been looking for opportunities to do so. AI will become an inextricable part of human existence, with all of its benefits and drawbacks. It has the potential to change the way the current legal framework views technology. As a result, the question of who should have ownership of this intellectual property becomes crucial.


Artificial Intelligence (AI) has been ingrained in our daily lives. Data may be updated or collected in a far more efficient and time-efficient manner using AI. With the introduction of new technical instruments, utilisation has increased dramatically. As a result, it becomes critical to enact appropriate legislation. Because AI is a rapidly evolving technology, it is critical to evaluate and analyse the concerns and challenges that may arise. IPR is already a growing field. Many aspects are being incorporated under the purview of the technological approach. One of these, artificial intelligence (AI), should be investigated. The current state of AI and IPR is difficult. Artificial Intelligence is still in its infancy, and its potential for development is enormous. But one thing is certain: the Copyright Act, in its current form, is incapable of dealing with artificial intelligence-generated content. There are numerous issues that arise as a result of Artificial Intelligence-created works. Thus, it appears that the current Intellectual Property Law can be retained, but a new interpretation can be provided that encourages growth in this emerging technology while maintaining the principle that for an intellectual work to exist, the closest human agency must be found, or the law could be amended to include artificial as an author, such as a corporation, in order to put ownership rights in place.