Month: November 2021

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Blog Intellectual Property Law

Artificial Intelligence and Copyright Protection of Computer-Generated Works

Copyright is a type of intellectual property which provides the exclusive right to the owner to make copies of a creative work, either artistic, literary, dramatic, musical or otherwise. The creator of such creative work, or “author” has the exclusive commercial rights over the work.

Artificial intelligence has great significance in the realm of creative work. Recent successes have demonstrated that AI can independently learn how to perform tasks, prove mathematical theorems, and engage in artistic endeavors such as writing original poetry and music, and painting original works. AI with and sometimes without human assistance is also able to create artistic or innovative works. Therefore, such interplay of AI with the creation of creative work raises certain concerns in the field of copyright law.

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Before understanding the specific issues pertaining to copyright protection of AI generated work, it is pertinent to understand the difference between AI code and AI’s work product. AI code relates to the computer program or algorithm or the source code per se which constitutes AI. This code is what the programmer inputs into an AI. Such code is provided protection under copyright laws of various jurisdictions as TRIPS agreement provides that “Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)”[1]. Therefore, the programmer, or the person/entity which buys such AI from the programmer, is considered as the owner of such AI and enjoys the fruits out of copyright protection. On the other hand, AI’s work product relates to the creative product created by the AI. The major legal issue concerns the copyright protection provided to the work created by AI, either with or without human interference.

As discussed above, the AI’s creative work product can further be bifurcated into two categories, one where there is no human intervention, and the other where the programmer has minimal input into the final product. The legal issue pertains to whether in the former situation, the AI can be given authorship over the creative product, and in the latter situation, whether AI can be considered as a co-author of the creative work.

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With respect to the first issue, the jurisprudence developed in different jurisdictions clarify the situation as they unanimously believe that the creative works generated solely by AI are not copyrightable, if such creation does not involve any input or intervention by a human author.

In the United States of America, human authorship is the basic requirement as the Copyright Office reinforced the decision in New Idea Farm. Equip Corp. v. Sperry Corp[2] by holding that it will not register works produced by a machine or mechanical process if there has been no creative input or intervention from a human. Further, in Naruto v Slater[3], the court has opined that a non-human cannot hold copyright and hence cannot sue for infringement of copyright.

In the United Kingdom, the Copyright Designs and Patents Act, 1988 provides that the author of any literary, dramatic, musical or artistic work created by a computer is the person that made the arrangements necessary for the creation of the work undertaken[4]. A computer-generated work has further been defined by the Act as “work generated by computers without any human author of the work”[5].

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India also adopted a similar approach under Section 2(d) of the Copyright Act, 1957 by providing that “in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.”[6] However, it does not contain any explicit exclusion of interference from human author for computer-generated works.

Therefore, the copyright law regime of different jurisdictions expressly mention that the author of a computer-generated work is the person by whom the arrangements necessary for the creation of the work are undertaken.[7] Therefore, intervention by a human is necessary to render the output of an AI copyrightable.

Therefore, AI cannot be an author of the creative work. However, if we take this proposition into consideration, then the next issue arises as to who would be an author of the work created by AI if no human intervention takes place in the process of such creation?

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Let us consider a situation wherein an AI creates an artistic work without any human intervention and this work is infringing the right of another author of same/similar work. Even though work created by AI without any human intervention is not given copyright protection, however, does it imply that others also lose their right to sue for copyright infringement? To resolve such conflicts and the issue of liability arising out of the works created by AI, it is imperative to understand who should be considered the author of the work created by AI, without human involvement.

A possible solution to this issue is the doctrine of principal-agent relationship. If AI is considered as a mere agent of the person (human) who has a control over it, the issue of liability will be resolved. Also, since AI is created by a programmer and it functions according to the algorithms which have been programmed into it by the programmer, such programmer can be considered a principal, and AI be considered as its agent, as AI performs the specific tasks for which it is programmed. In the course of such performance, if the AI creates a creative work, the principal i.e. the programmer can benefit out of such creation, and also be considered liable, in case of any infringement (as principal is vicariously liable for the acts of agents). Further, though compensation is considered an important factor in the principal-agent relationship, and AI cannot be “paid” by the programmer in practical sense, the AI can be considered as a gratuitous agent as a gratuitous agent acts without a right to compensation from the principal. Furthermore, the gratuitous agent owes the same duties of care and loyalty that it would otherwise owe the principal as if it were a standard agent.

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If the AI is sold by the programmer to a third person/entity, such person/entity becomes the principal and enjoys the benefits and the burdens arising out of the creation of AI.

Therefore, although the copyright law regime globally necessitates human involvement or interference for protection of a creative work, the work generated by AI without such human interference should be given protection because firstly, it would provide incentive for further creations of such nature and secondly, it would provide a remedy to the party whose rights have been infringed by the creative work of AI. Thus, the principle of principal-agent relationship between the programmer and the AI can help in addressing these lacunas.

 

[1] Supra note 3.

[2] Supra note 7.

[3] Naruto v. Slater, 2018 WL 1902414.

[4] The Copyright Designs and Patents Act, 1988, s. 9(3) (United Kingdom).

[5] The Copyright Designs and Patents Act, 1988, s. 178 (United Kingdom).

[6] The Copyright Act, 1957, s. 2(d) (India).

[7] Ireland, UK, New Zealand, South Africa, and India.

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Categories
Blog

War Crimes

By:- Disha Mathur

 Worldwide, civilians are being attacked and killed in armed conflict, when do such attacks will be considering illegal?

The concept of war violations was created especially at the conclusion of the 19th century and starting of the 20th century, when universal helpful law, moreover known as the law of outfitted struggle, was codified. The Hague Community war wrongdoings can be found in both universal compassionate law and universal criminal law arrangements, as well as in universal standard law. Particles were received in 1899 and 1907.

A few other related arrangements have been embraced since at that point. war violations must continuously take put within the setting of an outfitted struggle, either universal or non-international. It advanced continually, especially since the conclusion of World War I. War wrongdoings in universal arm clashes are secured by article 8(2)(a) which endorses grave breaches of Geneva Traditions of 12th admirable 1949. War wrongdoings beneath the Worldwide Criminal statute are isolated into four categories: war wrongdoing created assist beneath the umbrella of the Nuremberg Trials based on the definition found within the London Constitution (1945). War wrongdoing could be a genuine breach of universal law committed against civilians. In spite of the fact that the concept of war wrongdoings has old roots, rules on war wrongdoings began to create at the conclusion of the 19th century. The ICTY was given locale over four categories of wrongdoing:

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(1) grave breaches of the Geneva traditions

(2) infringement of the laws or traditions of war

(3) genocide

(4) wrongdoings

Beneath Under  Article 147 of the Fourth Geneva Convention [1]characterizes war violations as “wilful slaughtering, torment or brutal treatment, counting … wilfully causing extraordinary enduring or genuine harm to body or wellbeing, illegal extradition or exchange or illegal control of an ensured individual … taking of prisoners and broad pulverization and apportionment of property, not advocated by military need and carried out unlawfully and wantonly”.

Famous Case:

Jean-Pierre Bemba was charged with the war wrongdoing of starting campaigns of mass assault committed against civilians within the Central African Republic. Within the Ntaganda case, the ICC found sexual wrongdoings committed by individuals of a Congolese outfitted gather against other individuals of the same bunch were war wrongdoings.

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the ICC records the diverse sorts of war wrongdoing which are secured by the Rome Statute, counting but not restricted to the war violations of:

  • Wilful slaughtering, torment, mutilation or obtuse treatment
  • Biological, restorative or logical tests which cause passing or genuinely imperil lives
  • Destruction and apportionment of property
  • A compelling benefit in antagonistic forces
  • Denying a reasonable trial
  • Sentencing or execution without due process
  • Unlawful extradition, exchange or confinement
  • Taking hostages
  • Attacking civilians or civilian objects
  • Attacking staff or objects included in a compassionate help or peacekeeping mission
  • Improper utilisation of a hail of détente or particular symbols of the Geneva Conventions.
  • The law of war wrongdoings comprises of the criminalization of the infringement of the law of equipped struggle (LOAC), [2]too known as worldwide helpful law. War wrongdoings have been happening in India since Britishers took over but the pitiful portion is that it proceeded indeed after independence.
  • Mass migration of Kashmiri Pandits (1990)- In 1990 all the Kashmiri Pandits were given a caution from the amplifiers of the mosques overnight to either change over to Islam or take off Kashmir. All the possessions of Kashmiri Pandits were focused on such as shops, mandirs, etc. Individuals were slaughtered in expansive numbers. Individuals were constrained to take off their homes and their business. Those individuals are still living in destitute conditions. Till date, there’s no remuneration and no equity has been given to the casualties but revocation of Article 370 of the Structure of India.
  • Bengaluru riots (2020)- Horde of thousands of individuals assaulted at the houses of Hindus counting the house of a nearby MLA since his relative shared a blurb of Mohammad on social media.

    Laws related to War Crime in India:

  • Section 120A and 120B of IPC,1860 [3]says that when two or more individuals commit a scheme to do an illicit act.
  • Section 300 of IPC, 1860 [4]characterizes kill and section-302 have the arrangement of detainment for life or passing sentence.
  • Section 295 IPC, 1860 [5]punishes any individual who devastates, harms or difiles any devout put with the purposeful of insulting the religion.
  • Section 436 IPC, 1860 [6]states that any individual who tries to devastate or crushes the property such as house or devout put might be rebuffed with detainment for life.

War violations are not as it was related to violations committed amid war but indeed amid peacetime.  War violations are considered to be among the foremost genuine universal wrongdoings. The meaning of war violations was clarified within the four 1949 Geneva Traditions. Allegations of war violations within the 2006 Lebanon War refer to claims of different bunches and people, counting Absolution Worldwide, Human Rights Observe, and Joined together Countries authorities, who denounced both Hezbollah and Israel of abusing worldwide compassionate law amid the 2006 Lebanon War and cautioned of conceivable war violations. These affirmations included deliberateness assaults on civilian populaces or frameworks, unbalanced or unpredictable assaults in thickly populated private districts.

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Some of the Facts related to War Crime:

  1. According to various media reports, between 1,000 and 1,200 Lebanese citizens were reported dead; there were between 1,500 and 2,500 people wounded and over 1,000,000 were temporarily displaced.
  2. 300,000–500,000 were displaced because of Hezbollah firing tens of thousands of rockets at major cities in Israel.
  3. Even, the conflict in Darfur has been variously characterised as genocide.
  4. In September 2004, the world Health Organisation estimated there had been 50,000 deaths in Darfur since the beginning of the conflict, an 18-month period, mostly due to starvation
  5. In September 2004, the world health Organisation estimated there had been 50,000 deaths in Darfur since the beginning of the conflict, an 18-month period, mostly due to starvation.

The Sri Lankan Civil War

There are charges that war wrongdoing was committed by the Sri Lankan military and the revolt Freedom Tigers of Tamil Eelam amid the Sri Lankan Gracious War, especially amid the ultimate months of the strife in 2009. The affirmed war violations incorporate assaults on civilians and civilian buildings by both sides; executions of combatants and detainees by the government of Sri Lanka; implemented vanishings by the Sri Lankan military and paramilitary bunches supported by them; intense deficiencies of nourishment, medication, and clean water for civilians caught within the war zone; and child enlistment by the Tamil Tigers. The Sri Lankan Government has denied that its powers committed any war wrongdoings and has unequivocally restricted any universal investigation.

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Genocide:

Genocide is considered one of the foremost serious violations against humankind. It implies the consider endeavour to crush a national, ethnic, racial or devout bunch. Genocide may be a crime under worldwide law even if it isn’t wrongdoing within the nation where it takes put, and actuation to commit genocide is additionally wrongdoing.

The International Criminal Court (ICC):

The International Criminal Court (ICC) examines and tries people charged with the foremost genuine violations inside the setting of universal criminal law, counting war wrongdoings.

Conclusion

The repulsions of war were a portion of the nature of war, and recorded cases of war violations go back to Greek and Roman times. Before the twentieth-century armed forces regularly carried on brutally to foe officers and non-combatants alike – and whether there was any discipline for this depended on who inevitably won the war. Individuals are as a rule as it was attempted for war violations in the event that their nation loses the war – a triumphant country once in a while tries it possess individuals for war violations – with the result that war wrongdoings trials can seem like exact retribution trials, and be seen as acts of treachery themselves.

[1] Article 147 of the Fourth Geneva Tradition/ https://www.aljazeera.com/news/2019/10/23/explainer-what-is-a-war-crime

[2] law of equipped struggle (LOAC)/ https://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/11/The-Law-of-Armed-Conflict.pdf

[3] Section 120A and 120B of IPC,1860

[4]  Section 300 of IPC, 1860

[5]  Section 295 IPC, 1860

[6] Section 436 IPC, 1860

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Categories
Blog Intellectual Property Law

Artificial Intelligence and the Patent Regime

The World Intellectual Property Organisation (WIPO) defines intellectual property (IP) as a creation of the mind. Patent, is a type of IP, provides an incentive to individuals to invent and innovate. The patent holder/owner is given exclusive right to make, use, sell and export an invention for a specific period of time.

With the advent of technology, and artificial technology (referred to as AI hereafter) per se, the world has seen a substantial increase in the number of inventions and technologies, created with the help of AI, owing to its potential to increase productivity and efficiency, as compared to its human counterpart. This is apparent from the fact that between 2010 and 2016, there was a fivefold increase in the number of patent applications relating to AI techniques as compared to scientific publications by tech giants like IBM, Microsoft, Hitachi, Panasonic, Samsung, Siemens etc.[1]

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The interplay between AI and patent law has two implications, the first one relates to the patentability of AI itself, and the second one relates to the patentability of inventions created by the use of AI.

The issue of patentability of Artificial Intelligence

Generally, patentability of any invention is subject to certain conditions, which include novelty, industrial application and patentable subject matter. Certain jurisdictions completely prohibit patenting computer programme or algorithms[2] because they come under the exclusive domain of copyright protection[3]. However, in other jurisdictions, software and computer programmes are patentable, but only if they fulfil specific conditions. For example, in China, software invention needs to fulfil the technicality requirement[4]. Similarly, in the United States of America, traditionally patent protection was not provided to software as they were considered abstract ideas, which was outside the purview of USA’s patentable subject matter under the Patent Act, 1977. However, this bar against patenting software was removed by the Court in Alice v. CLS Bank[5] which held that abstract idea implemented on a generic computer may not be patented, but, if the software in question improves “computer functionality” (i.e. improves computing speeds or reduces the number of computing resources required), or performs the computing tasks in an unconventional way, then it may be patentable.

Therefore, it can be seen that the issue of patentability of AI per se differs from jurisdiction to jurisdiction, wherein few nations are more willing to provide patent protection to certain types of software, while others continue to bring it under the exclusive domain of copyright protection.

The issue of patentability of inventions created by artificial intelligence

Artificial intelligence, in the past decades, has played a major role in assisting humans by performing certain specific tasks, assigned to them, by means of algorithms set by humans. This process also inculcates the use of AI in creating innovations and inventions. However, the way in which AI aids in the creation of such invention, differs. Broadly, there are three ways in which AI can play a role in creating inventions. At one end, AI could simply act as a tool in assisting a human inventor without contributing to the conception of an invention. On the opposite side of the spectrum, as AI is not bound by the limits drawn to it, it could autonomously generate outputs that would be patentable inventions, if created by a human. Alternatively, AI could also fall in between these two extreme ends, for example, it could be used to generate several possible solutions under the guidance of humans who define the problems and select successful solutions.

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The legal regime governing the patent system in different jurisdictions highlight that there is no bar to granting a patent for an invention created or generated by an AI. However, such invention would nevertheless have to satisfy the statutory requirements for being eligible for patentability i.e. novelty, industrial application and patentable subject matter. However, the issue arises at the time of filing a patent application.

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Before understanding the issue, it is important to understand the concept of inventorship and ownership. Inventorship is determined by “conception, or the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention.”[6] Ownership, on the other hand, lies with someone who exploits the commercial benefits arising out of such invention. Further, patent ownership is generally tied to inventorship, unless another entity has a superior right, such as through employment or contract. Therefore, since the invention is a creation of the mind, and encompasses certain rights and liabilities, all the jurisdictions around the world unanimously agree to the fact that an inventor can only be a natural person/s and not even an artificial person. Further, with respect to ownership, it is considered that both a natural person and an artificial person, like a company, can have ownership rights over the invention.

Taking into account the developments in the field of AI which now enable it to autonomously generate new inventions, serious concerns can be raised about whether AI can be termed as an “inventor”. Recently, both Google and Facebook have seen their respective Al systems develop new languages to perform the assigned tasks, eschewing known human languages in favour of a more efficient one.

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Let us consider the situation where an invention is generated autonomously by an AI (the one side of the spectrum). If such AI is considered the inventor, then by virtue of being an inventor and not being bound by a formal contract of employment, it also becomes the owner of such invention and possesses the rights to sell its invention to other natural persons/companies for profits. However, does AI has the capacity to negotiate terms for commercial purposes and provide consent for such transactions. It should also be borne in mind that the entire premise of the patent is based on the very idea of commercial exploitation of invention for a limited period of time. This provides an incentive for innovation and inventions. Therefore, if the idea of commercial exploitation is subtracted from patent, what remains is charity, and charity does not drive investments into further inventions by the use of AI. This is the very reason why the courts in different jurisdictions are reluctant in interpreting “inventor” as to include AI[7]. Such a step would create a lacuna with respect to firstly, the practical implications of such step, secondly, the idea of incentive under the patent regime and lastly, the issue of attributing rights to AI and liability, in case of any dispute. This situation is beautifully highlighted by the recent case[8] wherein Stephen Thaler applied to the patent offices of the United Kingdom, Europe and the U.S.A. for patentability of an invention invented by the AI machine “DABUS”. Mr. Thaler mentioned “DABUS” in place of the name of the inventor and his name in place of the name of the owner. The patent offices of these jurisdictions rejected this application on the ground that an AI cannot be an inventor as the statutory requirements mandate inventor to be a natural person, and that AI can neither be employed (as Mr Thaler mentioned himself as owner stating that DABUS is his property), nor hold intellectual property rights. Therefore, the situation with respect to the patentability of inventions created solely by AI is clear, i.e. AI cannot be an inventor under the law.

When we consider the situation wherein AI acts just as a tool or plays a more active role in the process of innovation and invention, certain scholars believe that AI could be considered as a co-inventor. However, mentioning the name of an AI as an inventor in the patent application would also be futile as the courts have come to the conclusion that only a natural person can be an inventor.

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However, having said that AI cannot be considered as an inventor, it does not imply that the creation of AI cannot be patented. To address this issue, one of the theories propose that the owner of the AI which created an invention should be considered as the inventor of the inventions created by AI which it owns. However, such patentability would still be subject to the statutory requirements of different jurisdictions. This theory implies that AI is just a mere tool or machine which aids humans to perform specific functions. Since the actions of the AI are prompted by humans, such humans should be considered the real “mind” behind any innovation created by such AI, while performing its functions. This theory seems to work perfectly well as it solves the issue of the inventor being a natural person, the issue of attributing liability, and the issue of negotiating for commercial purposes. This would also imply an increase in investment in AI for creating more of such inventions, in which the owner of such AI is considered the inventor of such invention.

[1] Pankaj Soni, How Is the Patent World Responding to the AI Revolution, 281 MANAGING INTELL. PROP. 48 (2019).

[2] Like Indian Patent Act, 1970, s. 3(k).

[3] Trade related aspects of Intellectual Property Rights, Art. 10 [Source or object code, shall be protected as literary works under the Berne Convention (1971)].

[4] PATSNAP, https://www.patsnap.com/resources/blog/which-countries-allow-software-patents/ (last visited Jan. 29, 2021).

[5] Alice v. CLS Bank Int’l, 573 U.S. 208, 225-26 (2014) [Holding that “the abstract idea implemented on a generic computer” may not be patented]

[6] Townsend v. Smith, 36 F.2d 292, 295; Hybritech Inc. v. Monoclonal antibodies inc., 802 F. 2d 1367, 1376.

[7] New Idea Farm. Equip Corp. v. Sperry Corp., 916 F.2d 1561 (Fed. Cir. 1990) [The court stated that only people conceive ideas and not machines].

[8] Stephen L Thaler v. The Comptroller-General of Patents, Design and Trade Marks, [2020] EWHC 2412 (Pat).

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