By: Vaishali Kohli
At first glance, we may find the idea of Artificial Intelligence and law very unlikely since both the fields are on the opposite sides of the poles but the actual truth is far from it; Artificial Intelligence is transforming the legal profession in many ways. On a basic level, the aim is to develop and find ways to reduce, manage and execute laborious tasks which would otherwise require human inputs. IBM Watson powered called ROSS is the world’s first AI lawyer who solves research questions by mining data and interpreting trends and patterns. If we talk about India, then most of the lawyers and the law firms are still little hesitant, but Cyril Amarchand Mangaldas in 2017 became the first Indian firm to deploy software that uses AI named Kira to identify, examine and separate the provisions and other data from legal documents with a high level of accuracy.
APPLICATIONS OF ARTIFICIAL INTELLIGENCE IN LEGAL SERVICES
There is no doubt that AI has started impacting the legal spheres. Some of the applications that Law firms have found with AI are as follows:
- Document discovery and review
Computes have the ability to use the Natural Language Programming (NLP) and other AI tools which allows the understanding of thousands of documents and go through case files and legal briefs in a snap. If this is applied widely, it is quite capable of bringing a revolution in the working of legal sectors. In fact, the famous investment Banking Firm JPMorgan announced COiN for Contract Intelligence in 2017, a program which saves up to 36,000 hours of lawyers time every year by interpreting commercial- loan agreements. A technology developed by Ross Intelligence helps lawyers to find cases and second material using NLP. Some of the firms have adopted AI software that helps to analyse all the documents and then flag the ones that are deemed as relevant.
- Predicting Legal outcomes
AI has some remarkable abilities like storing years’ worth of legal data which could actually help to tell the lawyers of their chances of winning relevant cases. It can able to handle a lot of tedious tasks because of which lawyers can spend more time on analysis, counselling and negotiations, even court visits. With the use of AI, legal counsels are able to answer questions relating to the future of the case because of the ability of AI of analysing data which helps to make predictions about the outcomes of the legal proceedings better than humans.
- Due Diligence
Due Diligence is a hectic work; the legal professionals are required to perform background checks and uncover information regarding their clients. These facts are then evaluated for better decision making to support the case. It is a tedious task, and because of its comprehensiveness, there is a chance of human error. AI makes the process more efficient and accurate by the elimination of manual errors and providing a better experience for their clients as well.
- Contract Review and Management
Law firms review contracts of their clients to identify the risks and issues to avoid any negative impact. AI can and is being used for this purpose which is quicker and with fewer human errors. For example – Kira Systems is a popular tool used by popular companies like Deloitte to review their contracts. iManage RAVN is another such tool, and it increases the effectiveness of an organisation which in turns increases the profitability.
- Intellectual property
AI has such tools which can help with various tasks of IP field like search and registration of a trademark, Patents, Copyright, etc.
- Electronic Billing
The AI software can actually help the lawyers and the law firms in preparing the invoices for their clients according to work done by them. It is an accurate billing which helps both the lawyers and the clients.
ARTIFICIAL INTELLIGENCE AND INTELLECTUAL PROPERTY RIGHTS
The use of AI will change the area of intellectual property rights like trademark and the patent law. These machines are growing creative, a result of which has resulted in a transformation in the invention process in ways not easily accommodated with the present system.
- COPYRIGHT AND ARTIFICIAL INTELLIGENCE
Copyright is a legal right which granted to the owner of an original work which in turn allows him/her, the exclusive rights for its use and distribution. Copyright protects the idea and nothing more, and generally, it includes fulfilment of two conditions, the first being that the works should be in tangible form and the second being that it should be original. Since the creation of literary works is one of the areas where AI is applicable, the study of copyright becomes relevant. The introduction of AI and its development have resulted in some challenges in the world of copyright. Looking at the results, we can all agree that the work which is created by AI is at par with that of human beings, sometimes even better. Department of Computer at Information Science at the University of Konstanz, Germany developed a prodigy robot called E- David. It can create original artwork by autonomously taking pictures with its camera using a complex visual algorithm resulting in the creation of original paintings from these pictures[1]. If a human being creates such an original artwork, it would be eligible for copyright protection. The Turing test is for the AI systems and Machines which determine whether the system or the machine is exhibiting intelligent behaviour equivalent or indistinguishable from that of human behaviour if the human evaluator is not able to distinguish whether the output is a machine or human-created, then the test is passed. In the recent years, there has been an increase in the number of AI systems passing the Turing test like the creation of Lamus software programmes which creates musical works that were performed at the London Symphony Orchestra[2]. Another famous instance is the poetry writing software, developed by Zackary Scholl in 2011 which produced a poem that got published in a literary journal and the editors could not distinguish that a computer programme had written it[3].
AI systems are evolving rapidly, blurring the lines between the original works and mere computer-generated works. AI is challenging the conventional copyright laws in India, and Internationally resulting in legal implications and ambiguities regarding ownership, authorship and accountability in AI-generated works. Section 13 of the Copyright Act, 1957 mentions that for the copyright to exist in the literary, dramatic, musical and artificial work, it should be original. Now the act does not define the word original but in Eastern book co. V D.B. Modak, the Supreme Court adopted ‘modicum of creativity’ as a standard for determining whether the work is authentic or not and therefore be eligible for copyright protection or not. The work should meet a minimum level of creativity and should not only be a mere output of skill and labour. Since the necessary level of creativity is not high, AI-generated work may meet this originality standard and be copyrightable. However, the second definition given by the act is deciding the author of the work. Section 2(d) of the act talks about the author of the literary, dramatic, musical or artistic work which is computer-generated to be a person who causes such work to be created. If we look at this definition, then we can see that AI-generated work can fall under the computer-generated work, but the author of such work will not be the AI system but rather the person who causes the work to be created. This definition implies that only natural persons can be protected as the author under the act. In fact, Practice and Procedural Manual of 2018[4] issues by the Copyright Office, states in the application for the registration of the literary works, only the details of natural persons should be provided, i.e. who has actually created the work. In Amarnath Sehgal v. Union of Delhi[5], the Delhi High Court recognised the author’s moral rights under the Section 57 of the Copyright Act,1957 which includes the right of paternity, the right to maintain purity/integrity and the right of retraction. It was held that these rights originate from the fact the author is uniquely invested in his/her work, and there is a privileged relationship that exists between both, therefore in cases of AI-generated works, such association is difficult to establish.
So AI might be deemed original in the current existing laws and technological landscape, they may not be attributed authorship thereof. There exists ambiguity regarding the identification of the person who caused the work to be created of the AI system. In India, under the copyright law, under certain situations, copyright may be granted to no- natural, legal and juristic persona like companies, organisation and the Government. If in future AI systems are declared as legal or juristic persons then they could be granted the copyright ownership in certain situations however this can result in issues relating to the transfer of the copyright, the commercial aspect and it may have consequences for a party seeking to monetise the works created through AI. The Indian Courts are yet to address some intricate issues surrounding the copyright and ownership of the AI-generated work which were raised when Sophia was granted citizenship in 2017 by Saudi Arabia[6]. AI systems have capabilities which are customary to human intelligence; Thus, challenging the existing notions which are pressuring the existing legal frameworks to evolve. It would be interesting to see how the law will develop and protect the AI developers and users and also the AI systems and their powerful juristic personality.
- PATENTS AND INTELLECTUAL PROPERTY RIGHTS
Artificial Intelligence has created a wave in the entire technology eco-system and has raised some fundamental questions and debates. One needs to understand that any invention related to AI is not a single invention but a combination of several of them. It can be a mathematical method or an algorithm or maybe both. There are no fixed criteria. The question which arises is whether these
combinations can be combined in one single claim and whether doing so, would reduce the scope of their protection. The foundation of AI lies in its algorithms and mathematical models. In India, we have an absolute ban on the patentability of algorithms and computer programmes unless they produce some technical contribution which will be challenging to establish in an AI-related invention. Section 3(k) of the Indian Patents Act, 1970 categorises mathematical and business methods, computer programmes and algorithms as non-patentable matter. European Union Intellectual Property Office (EUIPO) refused two patent applications in January this year that listed AI as its inventor on the application stating that the inventor has to be a human being and not the machine. The two applications were for the Food Container[7] and Devices and Methods for Attracting Enhanced Attention[8]. These applications were filled by ‘Artificial Inventor Project’ that also filed national phase applications under the PCT including the United Kingdom. The UK Patents Office rejected the application stating that no law allows the transfer of ownership from the invention to the owner in this case, as the inventor cannot hold the property.
Making machines and computers as inventors can be tricky and they have no rights, ethics and duties and is it possible to patent a technology which is dynamic and will change and evolve with changing times and attitude of humans? It seems tricky to patent every single change. There is another question which remains that who will ultimately get the patent? Will it be an inventor who has put all his/her efforts or the programmer who has worked equally hard. Who will be responsible if AI commits a breach? For an invention to be applicable for patent protection, it has to pass the patentability criteria which includes that it possesses novelty, an inventive step and should be capable of industrial application[9]. AI can process a higher level of intelligence and productivity, so there is a likelihood that all innovative steps could be evident to Artificial Intelligence. When it comes to inventive step, it is not easy to make innovations on existing modules or concepts which is not skilled in the art. Courts in some cases have denied patents to programs simply because what they perform is mechanical rather than it being inventive since they primarily run on computer programs[10]. According to the report by the Confederation of Indian Industry (CII) and Tata Consultancy Services[11], India will have to bring in new guidelines and policies for the enforcement of patents, intellectual property rights, and intellectual property management in an AI work. The IP and the patent laws in India are outdated in India and with the increasing AI inventions and patent application of the same, it will be interesting to see how the patent offices and regulators revise the existing patent and IP laws that fit in the new emerging technology.
ARTIFICIAL INTELLIGENCE AND IMPACT ON THE INDIAN LEGAL SYSTEM
A computer system can perform tasks which ordinarily require human intelligence is known as Artificial Intelligence. Kerala Police in February 2019 induces a robot for police work. In the same month, Chennai opened its second robot-themed restaurants while the robots not only serve but can interact with the customers in both English and Tamil. All of these examples make us realise the arrival of AI in our daily lives. The capability of AI systems to learn from experience and perform autonomously makes it the most disruptive and self transformative technology. If the regulation of AI is not completed correctly, it can have unmanageable implications. The Indian Legal system is still relying on the methods and solutions designed years ago, and there is very little innovation in technology. If we think about it, AI can play a big part in changing the ways lawyers operate. For instance, legal research is one such domain where AI can help in a significant way. Indian legal system is vast and dynamic, and with the use of AI, lawyers can get unparallel insight into the legal domain within seconds.
Currently, legal research requires a significant amount of person-hours, reducing the profitability and productivity of a law firm. An AI-based research platform can help in getting quality research within seconds. It can provide lawyers with highly efficient and advancements tools assisting lawyers to become better in advising clients or litigating. Some of the legal startups like CaseMine, Pensieve, SpotDraft our building Natural Language Processing (NLP) based applications resulting in the next generation legal research platforms that help law firms to go beyond simple research making it less time-consuming. AI has tremendous scope for the Indian Legal sector, and a combination of both will witness in immense growth soon. Some of the fields where the AI is currently in the legal industry providing to be useful is Due Diligence, prediction technology, legal analytics, Automation on documents, IP and electronic billing.
- WILL ARTIFICIAL INTELLIGENCE REPLACE LAWYERS?
A burning question among the lawyers is whether the introduction of AI in the legal sector would replace the Lawyers and the Legal Analyst. The legal industry has seen many new solutions where the technology has improved the efficiency, contract analysis, research, etc. and in the same way, IA based software programme only targets to increase the authenticity, accuracy of the results and improve the products. They do not target to take a Lawyer’s job. The legal profession includes analytical and decision making skills which can not be automated. The AI-based software and programmes can reduce the time and effort and help the firms in giving more authentic and result oriented suggestions. AI based automated assistant tools are not going to replace the lawyers but would make them more efficient. The evidence from other industries like healthcare and even e-commerce are enough to believe that AI will only help the lawyers and not replace them. Our honourable Chief Justice of India, SA Bobde, said that the Supreme Court has proposed to introduce a system of AI (artificial intelligence) which would help in better administration of justice delivery. However, he also cleared misconception that the AI would never replace the judges.
LEGAL CHALLENGES
AI and its application are part of our everyday lives, and it has the potential to revolutionalise society in positive ways. However, with any scientific or technological advancement, there is a real risk that it can harm Human Rights, including the Right of Privacy/ Data Protection. The machines are equipped with the ability to sense, process and record the world around them with access to our personal information. We give them access to monitor use, thereby giving them full surveillance autonomy. For instance, Google Duplex with AI-driven voice was designed to help people make an appointment to business over the phone but without any interaction from the user. The Personal Data Protection Bill (Privacy Bill 2018) intends to make the organisation accountable for personal data processed, and it has even given a wider definition of the word ‘personal data’. It has even given the person, whose data is collected the right to have his information erased. In the absence of direct human mind behind any action AI system undertakes, who is supposed to be blamed for the loss of the innocent users? Complete dependency on AI system is risky, and if we go into more in-depth analysis, then the consequences are even severe. What if AI-based driverless care gets into the accident which results in damage to property and harm to human life, who will be held responsible? Can AI also become witnesses, and can they also be used as tools for committing crimes? Challenges also include the inequality wherein the AI systems might be given preference over human beings. Since there is no decision on whether robots are a legal person or not, their legal rights and duties are unjustified. In 2018, NITI Aayog, the policy think tank of the Government of India, released a discussion paper on ‘National Strategy for Artificial Intelligence’. It is the first significant step towards the regulation of AI in India. However, the innovation is so fast-paced that the regulatory system is not able to keep pace with the developments. Thus, the need of the hour is to develop a regulatory framework.
CONCLUSION
Artificial Intelligence is part of our lives which will evolve with the changing times. The time is not far when it will become an integral part of the legal sector. Many may argue that manually reviewing documents can prove to be accurate, but one cannot compete with the speed of AI systems. They get done work in hours which would otherwise take a team of legal experts or paralegal to perform in days. There are several advantages of using AI in the legal section, and as compared to the western world, it is still a new concept in India. A robot or AI cannot replace lawyers, and in the future, the popularity and use of AI in the legal sector will only go up
[1] Shlomit Yanisky-Ravid, “Generating Rembrandt: Artificial Intelligence, Copyright, and Accountability in the 3A Era – The Human-Like Authors are Already Here – A New Model”, Michigan State Law Review, 659 (2017).
[2] Robert Denicola, “Ex Machina: Copyright Protection for Computer-Generated Works”, Rutgers University Law Review, 251 (2016).
[3] Brian Merchant, The Poem that Passed the Thring Test, VICE Motherboard, available at: https://www.vice.com/en_us/article/vvbxxd/the-poem-that-passed-the-turing-test (Last visited 9th May 2020)
[4] Practice and Procedure Manual (2018), Copyright Office, Government of India, available at: http://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Literary_Work.pdf ( Last visited 10th May, 2020)
[5] 2005 (30) PTC 253 Del.
[6] In 2017 Saudi Arabia granted an AI humanoid (‘Sophia’) citizenship, which raised questions as to the copyright ownership and accountability of AI systems.
[7] Patent Application # EP3564144.
[8] Patent Application # EP3563896.
[9] The Patents Act, § 2(I), 1970 (India); The Patents Act, § 2(ja), 1970 (India); The Patents Act, § 2(ac), 1970 (India).
[10] Bilsk v. Kappos, 561 U.S. 593 (2010).
[11] https://www.mycii.in/KmResourceApplication/64684.CIITCSReportUnderstandingtheDynam.pdf