In the first half of the 20th century, science fiction familiarized the world with the concept of artificially intelligent robots. It began with the “heartless” Tin man from the Wizard of Oz and continued with the humanoid robot that impersonated Maria in Metropolis. By the 1950s, we had a generation of scientists, mathematicians, and philosophers with the concept of artificial intelligence (AI) culturally assimilated in their minds. One of such person was Alan Turing, a young British polymath who explored the mathematical possibility of artificial intelligence. Turing suggested that humans use available information as well as reason in order to solve problems and make decisions, so why can’t machines do the same thing?[1].
True to Alan Turing’s statement, significant advancements have been made in the use of Artificial Intelligence to drive business and technology. It is used in a variety of businesses and has an effect on practically all facets of creativity. Artificial Intelligence development is being fuelled by the availability of abundant training data and improvements in highly affordable computing power. The application of artificial intelligence has advanced, and it has been suggested that, depending on the degree of human interference, AI products are either created or assisted works/inventions. A common example of an AI-generated invention or work is the DABUS machine learning system, which developed a food container based on factual geometry, the invention in question entails interlocking food containers that are simple for robots to grasp and stack. However, in AI-assisted inventions/works, AI is used as a tool in assisting with the creation of inventions/works, for instance, manufacturing machines/robot and self-driving cars.
There is a general consensus today that only natural persons or legal entities like corporations are eligible to be granted Intellectual Property (IP) rights like patents, trademarks, and copyrights. This is founded on the notion that intellectual property rights exist to encourage and reward human ingenuity and invention. The pertinent questions are, if a sophisticated system of artificial intelligence develops a new software application, can it be recognized as its inventor?, with AI being increasingly used for developing applications without human intervention, can an AI be granted patent for an invention? And does AI qualify for copyright ownership?,
For the most part, AI-generated inventions are unregulated. In most jurisdictions, patent applications must identify a natural person inventor.[2] The purpose of this provision is to uphold and respect the rights of human innovators. But patents are not always owned by inventors; in reality, most patents are owned by companies and the ownership rights may be transferred from an individual to a business through a contractual assignment or another legal process. For instance, if an innovation is made within the course of work in Nigeria, ownership automatically transfers to the employer.[3] In addition, patent protection is not applicable to all inventions, there are inventions not qualified for legal protection. The requirements for an invention to be eligible for patent registration are outlined in the Patent Act in various jurisdictions. In Nigeria, an invention is patentable
(a) if it is new, results from inventive activity and is capable of industrial application; or
(b) if it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application.[4]
According to the aforementioned section, an invention must be new, the result of inventive activity, and capable of industrial application in order to qualify for patent protection; alternatively, it must be an “improvement” on an already-existing invention that is new, the result of inventive activity, and capable of industrial application. In some nations, such as the United States there is also the requirement that any invented process, machine, product, or composition of matter be new and useful[5].
The patent law for every country runs with strict guidelines that state that inventor can only be termed for an individual and to file a patent that inventor needs to be employed by the parent company, which does not work with machines. According to authorities, AI can only act as a medium for humans to create inventions, rather than the inventor itself. This postulation was given credence to by Honourable Justice Beach in the case of Thaler v. Commissioner of Patent (2021) FCA 879 wherein he held as follows:
‘’ Only a human or other legal person can be an owner, controller or patentee. That of course includes an inventor who is a human. But it is a fallacy to argue from this that an inventor can only be a human. An inventor may be an artificial intelligence system, but in such a circumstance could not be the owner, controller or patentee of the patentable invention.’’
Considering the recent case where the United States Patent and Trademarks Office denied giving a patent right to an AI machine named DABUS (device for the autonomous bootstrapping of unified sentience). The claim was filed by Stephen L. Thaler, a Missouri-based AI expert; however, the machine has been totally responsible for the invention with the help of a series of neural networks. Due to strict patent laws in the United State, the UK and European Patent offices, the machine was denied patent right. The Companies and Intellectual Property Commission of South Africa took a different position when DABUS (device for the autonomous bootstrapping of unified sentience) applied for patent of its invention in South Africa. The Companies and Intellectual Property Commission granted patent to DABUS amid criticism from various intellectual property experts. The South African Patent law and Patent procedure consist of a formal examination step which requires a check box sort of evaluation. All a Patentee is required to do is ensure that all relevant forms are filled and duly complied with. This procedure is contrary to the procedure of most countries that involves substantive search and proper examination system whereby the invention will be examined to determine whether or not such invention qualifies for patent.
Granting a patent to a machine may appear to be a simple process, but it is fraught with complications. Most countries have strong patent laws that say that an inventor can only be referred to as an individual and that in order to register a patent, the inventor must be employed by the parent company, which does not work with machines. Also, being an owner of an invention or an application comes with the responsibility of signing contracts, taking responsibility for the invention, technology transfer, dissemination of knowledge, filing lawsuits and even to permit licenses, which can only be done by humans, and thus can only be called as an owner.
For the protection of AI artistic works, since there is no one artist of a single AI art piece, AI art is created by algorithms, computers, and cross-wired information gathered over time. By that logic, an AI art piece cannot be copyrighted by typical copyrighting standard practices. However, in the United States, copyright authorship can only be granted to works that were created by a human and that are sufficiently original, as well as a short list of other requirements. Although, AI-produced art is not authored by humans directly nor made of original materials. Most countries worldwide follow similar practices, making AI-generated artwork unable to be copyrighted. In early 2023, Getty Images opened a lawsuit against an AI generator that was suspected of using unlicensed Getty Images photos to create AI images. So while the resulting images hold no copyright, the photos used to create them had copyright licenses that weren’t adhered to. A typical example of some AI art work should be granted copyright but were not include; Monkey Selfie Copyright dispute,[6] the AI generated images pf pope Francis.[7] we recommend that different AI generators should have different rules for their use, and since AI art generation is such a new field, you should attain to read the terms and conditions before using or distributing any artwork you create through AI.
One of the critical reasons for advancing artificial intelligence is to create the ability for machines to operate without human intervention. Therefore, when the machine manages to develop an invention without any sort of involvement from humans, it should be acknowledged of its contributions. Besides, according to law, if the machine cannot be termed as the owner of an invention and humans are not taking the responsibility of the invention, the invention might not be patentable. This, in turn, could hamper the authenticity of the invention without any legal protections, and also the commercialization of the invention, which might create resistance among businesses to invest more in such AI inventions. The World Intellectual Property Organization (WIPO) has started a consultation on this issue and is due to continue the discussion at a session later in the year, with the outcome expected to influence future IP policy.” However, allowing nominations from machines and computers for ownership will not only encourage humans behind the brainchild but will also promote more innovations for society. Also, it is not legal to state that a human is liable for things going wrong with AI-generated inventions; not only this violates human rights but also depreciates the value of human capability.
Considering there has been a rapid advancement in AI-related work, businesses have started relying on this advanced technology to solve complex business problems as well as to create new applications without human aid. Therefore, it has become imperative for patent authorities to rethink their traditional laws and create new framework guidelines that would involve machines, computers as well as non-natural persons as inventors. In fact, in recent news, it has been announced that The WIPO is working towards re-strategizing their IP policies on artificial intelligence. The institution has released a revised draft that noted the increasing role of AI in the invention process and decided to conduct a virtual session for discussing the revised questions on whether or not to grant ownership to AI machines. However, until the issue of AI patents/copyright gets resolved, this advanced technology can only be termed as the machine or service that aids humans to invent ideas. And, with that, businesses should ensure that humans are well involved in the process of creating the invention, along with AI, for them to apply for patents/copyright.[8]
THE WAY FORWARD
The complex relationship between AI and Intellectual property necessitates a thoughtful re-evaluation of existing legal frameworks. Policymakers, legal experts, and AI research community must engage in a collaborative effort to address the challenges posed by AI-generated Inventions.
Some potential approaches include:
- Revisiting Patent Laws: Policymakers could consider amending patent laws to explicitly recognise AI systems as inventorship and the criteria for granting patents.
- New Legal Frameworks: Introducing new legal categories for AI-generated inventions, distinguishing them from human-generated ones, could offer a solution that addresses both inventorship and ownership concerns.
- Joint ownership: Regulatory Authorities can consider the option of joint ownership to the AI human creator and the AI. We also propose that an AI should be considered as an artificial person for the purpose of the joint ownership.
- Because AI art generation is such a new topic, to avoid intellectual property infringements, persons should read the terms and conditions before using or distributing any artwork created using AI.
[1] The history of artificial intelligence, August 28, 2017 http://www.harvard.edu//historyofartificialintelligence//
[2] Section 2 Nigeria Patent and Design Act, Patent Act 35 U.S. Code, Section 27 South Africa Patent Act
[3] Section 2(4) Nigeria Patent and Design Act
[4] Section 1 Nigeria Patent and Design Act
[5] Patent Act 35 U.S. Code
[6] Monkey selfie copyright dispute – Wikipedia
[7] Why Pope Francis Is the Star of AI-Generated Photos – The New York Times (nytimes.com)
[8] Can Artificial Intelligence Be Granted Patent For Inventions? (analyticsindiamag.com)
