IP Rights For AI Generated Inventions: Legal Issues And Prospects.
By Jimoh AbdulGaniy Adisa
The task of dissecting the genesis of property rights borders on the domain of evidence-based sciences, such as Psychology, Sociology, and Economics. However, Peter Drahos explained that Intellectual property can be viewed in two ways viz; analytical property, and connection between people, and object .Hence, this article shall be justifying the given topic
The term Artificial Intelligence is notably, to have emerged and first used in the 20th century, at the Dartmouth conference of 1956, during the time when breakthrough in science and technology are the orders of the day. Since then, the quests of innovators and researchers were reinforced, and they had published over 1.6 million AI-related scientific publications and they equally filed patent application for newly 340,000 for AI-related inventions.
What are Intellectual Property Rights?
The World Intellectual Property Organization(IPO) out rightly given it thus ‘Intellectual property rights are regarded as the product of the mind, inventions, literary and artistic works, any symbols,names,images and designs used in commerce.’-namely patents, copyrights, trademarks and registered designed rights.
Intellectual Property(IP) is meant to safeguard the establishment of the human intellect, and equally gives human the right to prevent the misuse of the created products.Hence,the aim of this article is to delineate various achievements of AI,significance, prospects,and legal perspectives under IP Law, conferment, recommendations, and conclusion.
ARTIFICIAL INTELLIGENCE (AI)
AI portrays Intellectual capacity exhibited by devices contrary to the living things .Etymologically, AI came into effect in the 1950s with its terms—Artificial Intelligence— during the period of Dartmouth Summer Research Project that centers on AI in the year 1956.This term was first derived by an American Computer and Cognitive Scientist—John McCarthy—as ‘the science and engineering of making intelligent machines.’ Hence, AI is a term which is akin to computational intelligence.
INTELLECTUAL PROPERTY LAW(IPL)
IP Law could be described as a particular legal ambit which includes intangible creation of the human intellect. The modern concept of IP was developed in England, in the 17th & 18th centuries, whereas its terms start to be in deployment in the 19th century. Albeit, it was in the late 20th century that IP became common in most nation’s legal system. By extension of these points, there are numerous type of IP, but common type in Nigeria and other countries are patents, copyrights, trademarks, Industrial design, and trade secrets. Therefore, brief explanation shall be given on them in the subsequent paragraphs.
Patent—It is a type of IP that allot its owner, the legal right to exclude others from making, or using invention for a given period of time.
Copyrights—It confers the owners with the exclusive right to display, distribute, copy, and perform creative work for a restricted time.
Trade Secret: This is given to a particular owner of trade secret, a right to restrict others from disclosing it.
Trade Mark: It constitutes some recognizable design, sign, or expression that identifies product from a particular product and differentiate it from others.
Industrial Design: It is a particular design ascribed to products so as to enhance their attractiveness by their appearances.
AI’s ACHIEVEMENT AND POSSIBLITY
It is a common thing that, patents and copyright tend to be the aspect of IP Law that had gained recognition in modifying AI innovation. More justification shall be done to the aforementioned duo in the subsequent paragraphs.
First, AI has been very helpful in photograph editing, poem writing, graphic design, and ability to come up with new inventions, when given the appropriate date and computer code. In the transportation domain, AI has been very useful in self driving cars(auto pilot),and a host of others.
In furtherance of this, research has it that, in 2016,an AI program wrote a novel that almost secure a national prize as the novel is title daya computer the writes a novel’ emerged 1st runner-up at the 3rd Nikkei Hushi Shinichi Literary award occasion that took place in Japan. In that same year, researchers in Netherlands were reported to have revealed a new artworkcalled ‘The Next Rembrandt’ created by a computer, and the aforementioned artwork was created by AI, using facial recognition algorithm which scanned data from paintings by the famous Datch artist—Rembrandt.
In the year 2017, Google began financial sponsoring of AI program for writing local news, and later on, the Press Association (PA) a multimedia news agency in UK ,and Ireland was reported to have won £706,000(€621,000) AI (Robots)writing local news.
SHORTCOMINGS OF AI UNDER EXISTENT IP LAWS.
An acclivitous shortcomings on AI in the lens of IP laws in Nigeria, or most jurisdictions borders on the ownership of AI invented works. The shortcomings had continued to be begging for an answer to a raised question thus: Between the AI and its inventor, who should apply and conferred with the ownership or inventor ship (patent) rights over the AI invention works? a vivid answer to this question has been given by the dint of section 2 of the Nigerian Patent and Design Act, which provides that,’ the right to a patent, in respect of an invention shall be granted to statutory inventor.’ In a similar fashion, section 2 of the Nigerian Copyright Act ascribes copyright on ‘qualified persons is, either. A That natural person or an artificial person More so, it is also their contentions that, even if AI is to be given the grant of IP, it is not yet time, because AI has not reached the level of development to be considered so. Justification to their assertions in this aspect is that, the means of transportation—automated vehicle— are prone to accidents due to errors and technological defect. Last but not least, AI is an unknown person in the legal ambit.
Consequent upon the injustice meted on AI , it has spurred some determined AI advocates to ensure that AI is conferred with some segment of IP rights over its creation. Amongst these protagonist include SIMON COLTON, the inventor of an AI called ‘The painting Fool’ who had debated that AI should be granted inventors hip rights over its works.’
Moreover, there is a yelling on the needs of revisiting the global IP Law regime, all in a bid to accord IP rights to it rightful owner. Pursuant to this yelling, in 2015, EU organized a committee on the issues connected to the development of AI and robotic, so the committee made certain proposed civil rules to guarantee the legal status of robot which are bestowed with the ranks of electronic person .Finally, they deduced that, this does not mean that everything AI invents can be traced back to a human being.
DEVELOPMENTS OF IP LAW ON ARTIFICIAL INTELLIGENCE.
The patent application in respect of DABUS brought before the patent offices of seventeen (17) jurisdictions was rejected, based on the ground that, only human and legal creatures can be counted as Inventors. Nonetheless, the patent applications brought before Australia and South African offices were permitted and brief analysis shall be made on them in subsequent paragraphs.
THE CONFERMENT OF PATENT APPLICATION IN AUSTRALIA
The application brought before the Commissioner of Patent (ACP) was declined and this propelled to appeal the decision of commissioner as manifested in the case of THALER v. COMMISSIONER OF PATENT.
The sine qua non of conferring a patent application in Australia , is lucid in SECTION 15 of the Australian Patent Act,1990 (the APA) , makes a provision on ‘who may be granted patent.’ The section provides that a patent for an invention may be granted to a person, who is the inventor .On the other hand, section 3.2c(2) of the Australian parents Regulation 1991(APR) makes provision regarding ‘specifications—formalities, thus ‘the applicant must provide the name of the inventor of the invention to which the application relates.’
THE CONFERMENT OF PATENT APPLICATION IN SOUTH AFRICA
In the year 2021, July 28, the South African patent office conferred patent to DABUS, and recognized it as an inventor under the patent Law. It is further argued that, the conferment in SA is due to the state of patent law as captured below: Patent application filed in the jurisdictions are not inspected for patentability, and SA does not need an inventor to disclose any prior art unlike other jurisdictions. In a similar fashion, it is argued that before AI could be granted with inventor ship under IP Laws, the definition of ‘persons’ under IP Laws needs to be revised so as to include non-humans .Advocates of this view were motivated by court’s decision to have given some human position to non-human such as rivers; a perfect precedent of this was in 2017,via the decision of an Indian court, when it gives human position to a river and its tributary. Nevertheless, this same position was also reiterated in New Zealand.
RECOMMENDATIONS CUM CONCLUSION.
It is indeed high time, where specific consideration will be made to AI authorship. This is because, its emergence is an indelible one, and more advancement will set in, in due time. Hence, it is mandatory upon the lawmakers (legislatures) to ascribe some forms of IP rights to AI, or at least AI should be granted artificial legal personality under the law, based on the arguments canvassed by AI advocates that ‘If non-human entities such as companies, rivers, and museum are given legal right, then why expunging it from AI.
In conclusion, the advent of AI is irreversible and indelible, and it had gotten to recognition’s level as an entity with its own rights, particularly within the IP Law. It is good to make hay, while the sun shines.
1.Intellectual Property and Artificial Intelligence:Emerging Prospects and challenges
2. https://www.wipoint/tech trends/en artificial- intelligence/story.html/.
ABOUT THE AUTHOR
Jimoh AbdulGaniy Adisa,is an LL.B 300 Student at Faculty of Law, Bayero University, Kano, a writer, educator,and a legal researcher.He is the Deputy Director of Research and Litigation (Islamic Law) Equity Chamber, and a Law Clinician.In a similar fashion, the Current Assistant Secretary General of National Association of Kwara State Law Student,BUK Chapter.He can be reached via the following social media handles:WhatsApp :08090666588G-mail: firstname.lastname@example.orgLinkedin:Www.linkedin.com/mwlite/in/jimoh-abdulganiy-adisa-100121212
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
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