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Analysis of Insolvency and Bankruptcy Laws in USA, UK and UAE

By: Anant Tyagi

Earlier, the Insolvency and Bankruptcy law was not very clear in UAE and was very divided into various areas, resulting in complexity and confusion. After 2016 the new bankruptcy law has been created with the strong base to resolve any insolvency issues that the businesses face to protect. The bankruptcy law 2016 was established under commercial companies law to aid enterprises to which range under the small and medium-sized companies based in UAE and are facing economic challenges. The features of the bankruptcy law are as follows:

  1. Financial Recognition

The act aims to boost the concept of Financial restructuring by establishing a regulatory body known as the committee of financial reconstructing. A list will approve this particular committee’s role of experts who are well-versed in bankruptcy and financial reorganization to carry on the task.

  1. Composition

Under the new bankruptcy law, composition approaches are also available to assist the debtor in settling with the creditor. It is up to the creditors to accept the settlement or any part payment. For this arrangement to be possible, a condition must be fulfilled, stating that a debtor must not have stopped payment for more than 30 consecutive days. When the debtor makes an offer of composition, it is submitted to the court, which appoints an expert to analyze whether the composition of finance is sufficient or not.

If the offer of competition is accepted, the court will select an official in charge who will prepare a record of debtor’s creditors to submit to a court. Any composition has to be passed by most creators, which is equal to two-thirds of the debt and equally approved by the court.

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  1. Restructuring and bankruptcy

This particular part of biography law 2016 deals with the restructuring process by aiding the debtors in applying for affection plan for a bankrupt business. It also provides for declaring the bankruptcy to fulfil the obligations. Either of debtor or creditor can request for the commencement of the bankruptcy process. It is required that bankruptcy should be declared within 30 days by the debtor.

When the court accepts the application, the official is selected for selling and reconstruction of business. Insolvency and bankruptcy code process of liquidation starts, the secured creditors are given more preference in the rank than ordinary creditors.

  1. Bounced cheques

Under the UAE law, any non-UAE national person signatory to a bounced cheque faces potential criminal liability. Similarly, in bankruptcy law penal provisions are to be stopped if it is proven that specified check was issued before the commencement of composition/ restructuring. The cheque amount will be added to the total debt of the debtor.

  1. Penalties

The complaint of the new bankruptcy law 2016 has to be backed by a variety of available penalties. The penalty aims to provide both imprisonment and substantial financial fines.

With the help of the new bankruptcy law that gives ample options to bypass bankruptcy, which earlier had a severe penalty for companies going through a bankruptcy is a welcome step in insolvency and bankruptcy. The new is debtor-friendly and provides a way for the companies to repay their debts while continuing the business instead of the older laws that forced companies to shut their operations completely whenever any financial difficulty arose. This law will encourage companies from around the world to enter the UAE market.

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“A new law called corporate information insolvency, and governance act 2020 has been introduced by the United Kingdom with major reforms like “free-standing moratorium” and New Restructure plans. Under the new law, free-standing Moratorium will aid the companies to take shelter from creditor’s action. Under the insolvency and bankruptcy code 2016, whenever a company goes into the Moratorium period, distributor action save the company is not predetermined. Under the new law, free-standing Moratorium will ensure that a company can choose the company’s rescuing. The company is not forced to stick to the formal process, but if there is an informal process to rescue the company, it can even be used. Moratorium period is time-based to ensure that no misuse is taking place and the Moratorium is cancelled if it is final that a company cannot be rescued.” [1]

“Another form that has been introduced under the CIGA is the restructuring plan. The act had introduced a process in which the restructuring plan between the company and creditor required the creditors to vote and sanction the court. However, the cross-class cram-down method has been mentioned that states that the court has the power to give a plan sanction, it requires even if the majority of the class is against it.” [2]A restructuring plan can be approved by the court even if all the creditors are against it if the court feels that the creditors would not be worse off with the suggested Restructure plan than when no Restructure plan was approved.

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The cross-class cram-down method’s possible effect is that the companies will have more flexibility whenever they are proceeding with the restructuring plan even in those situations where the consent of all creditor classes cannot be obtained. But this method also has its challenges because it is mentioned that the court can overrule the descending creditors and sanction the plan if they feel that under the proposed restructuring plan they would not be worse off if no restructuring plan was approved. It burdens court with the responsibility of doing valuations, which is very contentious because a market valuation keeps changing according to the market forces. With the new covid crisis, it will be very problematic for the courts to assume the economic market’s evaluation and outcomes.

One of the significant reforms is that earlier whenever the company was going through financial difficulties and bankruptcy process, the company’s supplier would always seek to get out of the contractual obligation and sever ties with the company rendering the company without any support. The present act will now prohibit the supplier from terminating the contract with the company when it goes into the restructuring plan. The company can focus on paying back their debts and keeping ongoing their business instead of just closing everything down.

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The United States of America constitution has provided the US Congress with the power and authority to enact the laws of bankruptcy in the country. While exercising their power and discretion, the lawmakers passed the bankruptcy Reform Act of 1978 which has largely governed the country’s current bankruptcy law’s bankruptcy issues. The United States bankruptcy code is also referred to as tight 11. It contains the business and individuals’ procedure and practices to follow whenever they are filing for the bankruptcy under the United States Bankruptcy court. Under the US bankruptcy code, both companies and the individuals are allowed to file a bankruptcy petition and seek relief. The most common form of bankruptcy in the United States is mentioned in chapter 7, which also covers the liquidation process. The court appoints the trustee, and the trustee must collect all the non-exempt assets of the debtor.

When the creditors come to know about the company’s condition, it will force a company to file for bankruptcy. Still, apart from the UK and UAE law, the day the petition of bankruptcy is filed in the court, the business will cease to exist. It is up to the court-appointed trustee whether he allows certain operations of the company or not. When it comes to large companies, the trustee may decide to sell the company’s property loss-making division to another flourishing company. The preference is given to the secured creditors, usually the first ones to be paid back. As mentioned before, the US bankruptcy law provides for companies to file bankruptcy and offers individuals to file for liquidation in which they are allowed to keep specific exam properties, but it varies from state to state. The trustee will sell the other assets which are not under the exempt class to pay back the creditors. In the 2005 bankruptcy abuse prevention and Consumer Protection Act, an amendment was made that barred consumer debtors filing bankruptcy because it was felt that this provision would be misused by the credit card companies from losses, resulting in the customers going bankrupt. The act also provides for cross border insolvency state code incorporate with foreign courts to solve cross border insolvency cases. United States of America’s bankruptcy code is one of the oldest coats and is still prevalent without any new law being drafted in present time.

As we can see that the UAE bankruptcy laws for very old and had regressive laws with penal provisions which decided the companies from investing in UAE or any running companies in the UAE. Still, with the new law, they have provided a well-defined process to form restructure plans while running the business remove regressive penal punishments which is a welcome step and encourages the companies to continue their business while also returning the amount in debt instead of just punishing the people running the company and suffering Loss which is the ultimate goal of insolvency and bankruptcy laws.

“On the other hand, the United Kingdom has also introduced a new law for the information c and governance by giving major reforms like a free-standing moratorium that gives the company the freehand to determine the course of action which helps to rescue the company instead of just following the formal procedures and not getting any result. The UK has also given major power to the court to bypass the creditor’s Ascent for the restructure plan in case a court feels that this is the best records available for the company and is being blocked by the creditors for their greed of larger returns which will further worsen the situation.” [3] Meta reforms have also been provided by the act to ensure that the business does not close down and keep ongoing.

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The bankruptcy code of The United States of America probably the oldest but the most reliable piece of legislation for dealing with insolvency but no significant amendments in the laws has made it behind the other laws. While the other laws understand the concept that that can only be paid when the company keeps on running the US law focuses on shutting down the company the day the petition of bankruptcy is filed which is a very regressive step because are not only the chances of getting the debt go down but also the economy suffers when the company closes down and incoming times the US government has to bring amendments to resolve this issue.

[1] corporate information insolvency and governance act 2020 by Andrew Mills and Paul Durban

[2] Pricewaterhouse coopers guide on UK Insolvency and Bankruptcy reforms

[3] Bankruptcy Reform Act of 1978

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Software Licensing Agreements and the Clauses Covered Under it

By: Subham Saurabh

A software license agreement is an agreement/contract between a company and the user of that software who has the rights to use. It laydowns details for the users how to exactly run and use the particular software. The agreement tells a user how the software can be installed and what is the procedure to install it also how many times a user can install it. It additionally has clauses for the intellectual property rights (IPR) through which users know the copying, modifying and redistributing policy of the software. Thus, to prevent any kind of infringement of IPR a software owner needs to have a software license agreement with their customers.

The software license agreement does not have any particular format, the agreement differs as much as the software if there is a change in the software the agreement has to be changed. There is novation in the contract as soon as there is a software change. A software license agreement is important for both the licensor and the licensees along with the other stakeholders who have interest in the software as it lay downs the important clauses, jurisdiction, rights, modification, transferability etc. As an owner, a lot of money and time is being invested in developing the software and it is always in the mind of the developer that he could derive some monetary benefits out of it. If one individual is putting so much effort, he or she must put an effort to protect his or her IPR and other related rights. Here a software license agreement comes in the picture. Below are the reasons why to have a license agreement.

  1. It limits the liability: It is one of the most important parts of the agreement since if an owner did not limit his liability as to the software developer, then he is exposing himself for a lawsuit, people all the times are ready to file frivolous lawsuits and demand compensations for no real reason. Such lawsuits not only waste the money but also precious time. If a developer limits his liability though an agreement, he is ensuring the others from filing frivolous lawsuits as they have agreed to the software terms as soon as they buy it or in some case download it. Limiting liability can be from both sides.
  2. The agreement prevents others to sell it: Such an agreement with the customers restrict them to copy the software and redistribute it to others. There is also a huge difference between the developer licensing the software and not selling it. When the owner sells the software to a user, the owner still has all the rights also the owner can restrict the use. By this way, the developer/ owner has more control over the software in contract to the actual user of the software. For the long run and to derive more monitory benefit from the software the owner should not sell the rights of software rather license it.
  3. The license agreement allows the developer to terminate at any time: The owners have an extra advantage clause at their rescue which may state that owner can terminate the license at any period of use. The clause may also provide the owner to terminate it without providing any explanation. This is another important clause which helps the owners to maintain comprehensive control over the software at all times. At any time if licensor wishes to revoke the license and institute a suit instead, he can refer the licensee this particular clause.
  4. It avoids misappropriation of software: The hackers and such person who are always ready to make a replicate or a copy an individual’s intellect are always at the hurry to do it if the owner fails to have an agreement with the users. There is very less probability that others can sell the software however if a pirated version is circulated it would be a huge loss. A person would not buy the software if he is getting it for free and it will be unfair to the developer and owners.
  5. License agreement permits to disclaim warranties: Nothing can be in software, no matter what a developer do there is always an error with the technology it may be a bug, crash or downtime etc. and such errors allows a user to dissatisfactions. The license agreement may have clauses which would contain a disclaimer from such errors for which the user would eventually escape the liability.

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Main Section included in the Software License Agreement

Fundamentally, there are four primary sections for software license agreement and these four sections provide key information which is essential to the accomplishment of a software license agreement which is as follows:

  1. General Information – In the first section, we will get information about the execution of the agreement that when it will go into effect, for what duration of time the software will be active and what is the type of this agreement. This is the key part of any agreement although it provides general information because it sets the tone for the whole agreement.
  2. Parties Involved – This particular section provides information about the parties who are going to agree. When any person or company enters with the developer company or owner company of software the agreement must detail both the company or individual’s details. The full name and complete addresses and other key information should also be included in such agreement. Also, it is essential to state whether the party who is forming the agreement is a company or an individual.
  3. Terms of the agreement – This section includes all the other primary information regarding the terms of the agreement. Information such as price to be paid for using the software, information about the maintenance, support, warranty if any etc. will be listed which are offered by the software company. The other information that “whether you will be including the code along with the license and if it is a site license or not” is included.
  4. Fine details – The last section included all the miscellaneous details which are missed out in above three sections of the software license agreement. This section is drafted more carefully and according to the specific situation instead of wide clauses. At last, where the agreement is signed along with the dates are mentioned.

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Important Clauses of Software License Agreements

The above four-section provides the overview in brief of what features a user can assume from any general software license agreement. However, the company or developer to exclude its unsolicited liability and frivolous suits should include other key clauses which will guarantee their protection from liability in future also. It is important to include such clauses in the license agreement as the future is unpredictable and anything can happen, and from this unpredictable situation, the agreement must guarantee protection. Below is the list of such clauses:

  • Limitation of liability – It is one of the important clauses as it limits the software owner’s liability form uncertain future events. This clause laid down that the fact that the user should accept the software without any changes from the third party and they will not be able to claim any injury compensation, also it may be stated that no warranty could be claimed from the software and the usage.
  • Non-exclusivity –When a licensor wants to license the software to an individual or a company, he should make sure that the agreement has the clause that does not leave details that the rights of the licensee are non-exclusive. By providing such a clause in the agreement the software will the developers to stay longer in the market with the product and make a profit from the software.
  • Non-transferability – This is another important clause from the point of view of earning the profit. The non-transferability clause helps to restrict if the developer did not want the license to be transferred to another third party. If not restricted it will allow the licensee to transfer the software to any other person or even business that will amount to a loss of profit and future clients. Lastly, developers will not like to come in force in a situation where they have to deal with the agreement with such a party with whom they have not contracted with.
  • Rights – Every information that the right to the software will remain the property of the licensor even after execution of understanding will be included in this clause. This clause also includes the original programming, the name, the copyright, the trademarks rights, and all other intellectual property rights. Licensor does not want somebody else buying a permit to then steals any crucial information regarding the software and creates its monetary benefit. This is a significant consideration since it secures owner item from its users.
  • Modification Clause– If the developer does not permit the software to be novated in any capacity toward the back, then it should make that reasonable with a provision which states as much and subtleties what the expression ” modification ” signifies for this agreement. Except if this is what the software owner wants to occur, it will probably just purpose issues for them afterwards. The best option available is to the limit any modification, if not limit them. Because this is a software license agreement, this isn’t typically normal. Your users will probably comprehend that the product is made in that manner in which it is and will remain that way.
  • Breach of agreement – The owner has to incorporate a provision which expresses that on the off chance that any terms are not followed, at that point it will bring about a breach of agreement where a developer can renounce the agreement, therefore. The user does not want that breach of an agreement to happen, yet for the situation that it does, it ought to have this set up so it can assume back responsibility for the software product and better ensure it.
  • Number of Device-Based upon how the developer permits the software if the developer incorporates that the licensee is permitted to utilize the software on one single PC or numerous PCs in a similar area, for example, the corporate area. This keeps organizations from exploiting the software and attempt to need more at the price they paid. It is not common that all licensee will attempt to find a sneaky tricky path around, however in the case that they do, it is ensured that developer has this point by point so there is no doubt.
  • Terms of the end – this clause must be included in the agreement as if the developer or user need to end the understanding, this provision will detail the moves that must be made by the licensee or otherwise. This is by and large something like terminating the software on-site or uninstalling it from the gadget. Also, it to likewise incorporate that the software can be ended or terminated whenever and, in any capacity, whatsoever with no consequences.
  • Governing law – The last important clause which should be included in the details about the administering law for settling any disputes. No one wants to wind up in the Court that is far away from his state of location or is in another jurisdiction. Also, the last thing important is to ensure that this recorded as a written so that any court procedures will just occur in you’re the choice of jurisdiction.

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Role of Intellectual Property In Artificial Intelligence

By: Sweta Mishra

INTRODUCTION TO ARTIFICIAL INTELLIGENCE:

There has been a huge advancement in the sphere of technology and moreover, huge resources are being invested may it be by human beings/organisations into these advancements.  The term “Artificial Intelligence” was coined by John McCarthy in a conference in the year 1956 which meant “science and engineering of making machines-intelligent machines that can process and interpret language; mine and analyse data; and create artistic and original works”.[1]

British and United States Governments had invested huge amount of resources into AI during 1956 and 1980 and thus, it was considered as a golden period for the AI. In the first place, AI is attractive for information collection due to three factors- speed, scale and automation. The speed at which AI performs calculations is much faster than that of human analysts and can also be constantly improved by more hardware addition. AI is capable of using large data sets for analysis as well and is perhaps the only way in which big data is processed in a reasonable amount of time. Finally, the designed tasks can be carried out without supervision, which considerably improves the efficiency of analysis.

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Many consumer products have functions that make them susceptible to AI data use. In order to make the situation worse, people often ignore how much data they produce process or share with their software and devices and as we are increasingly dependent on digital technology in our daily lives, the potential for exploitation only increases. Voice-recognition and recognition of the face are two ways of recognising AI’s performance and these methods are capable of seriously compromising public anonymity. Moreover, AI can use sophisticated algorithms for machine learning to draw sensible data from non-sensitive data forms. AI not only carries out data collection tasks. The data can also be used as input to sort, classify, evaluate and grade people. AI can be further used for identifying, Tracking and monitoring individuals, whether on- the job, at home or in public plays across several devices. This allows to de-anonymize your personal information on the basis of inferences from other. This flushes the distinction that is to be maintained in accordance with present legislation between personal and non-personal data. Moreover, AI is used to make recipes, make designs for clothing purpose and also helps in making music. It is predicted that these AI and other machines may be considered as the creators and drivers of these unique innovations though, it is considered to be impossible in order to gain rights over such creations on behalf of AI and in this way, Intellectual property law’s role comes to action in case of Artificial Intelligence.

INTRODUCTION TO INTELLECTUAL PROPERTY:

The government grants every creation of an intellect certain exclusive right for its creation and the holder is able to protect his property that includes literature, music, symbols, brands, inventions and innovations for a certain period of time, preventing others from tampering it. These rights, included widely in the property rights, are known as Intellectual Property Rights. Starting with the Harappa civilization, the scavenged potteries had special marks that determined the maker’s ideology and ownership. In Germany, special privileges were given to the constructors of model mills to store grains. The establishment of the Paris convention from the evolvement of the Vienna exhibition led to the recognition of protection of Intellectual Property Rights. In India, the Act VI on protection of inventions of 1856 surpassed the British Patent Law of 1852. The latter was the basis of creation of the latter. Since then, there have been many modifications in the Act based on the necessity of making stricter rules for protection of creation of work. Act VI was modified into Act XV whereby, regulations were made to reconsider the 14year period granted to inventors for protection of their creations. In 1872, the Act was renamed into the Patents and Design Protection Act, followed by the Protection of Inventions Act, 1883 and The Inventions and Designs Act and The Indian Patens and Designs Act, in 1888 and 1911 respectively. The right to Intellectual Property is not a right provided for tangible objects but also for the mind considered as a property. Intellectual property can also be described as ‘knowledge goods’ which was mentioned in the case of Bayer Corporation v. Union of India and Others[2]. The main reason of providing laws to protect intellectual property by many countries is to promote designing and innovation to furnish the social and economic development. Intellectual property is broadly divided into two subsets, Copyright and industrial property. Copyright persists in original literary, musical and artistic works, cinematograph films, sound recording, etc. in India. Whereas industrial property specifically deals with inventions and creations of human mind which includes patents, trademarks, integrated circuits, geographical indications and protection against unfair competition.[3]

Conventions based on IPR:

In 1960, United International Bureaux for the Protection of Intellectual Property [Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectually (BIRPI)], was shifted from Berne to Geneva for increasing awareness of protection of IPR and bringing it in the consideration of United Nations. Later, the name of the international organization United International Bureaux for the Protection of Intellectual Property was changed to World Intellectual Property organization (WIPO).[4]

WIPO was signed in Stockholm on July14, 1967 and came into force in 1970 with an amendment in 1979. The two main objectives of WIPO were to promote the protection of IPR worldwide and to ensure administrative cooperation among the intellectual property Unions established by the treaties that WIPO administers.[5] In 2002, WIPO organized a study regarding IPR on the Internet. The survey focused on the international aspects of the effect of Internet evolution on IPR rights and duties of related individuals and organizations. In the process, the techno-savvy world has reorganized the very basis of copyright jurisprudence, thereby shattering the basic laws pertaining to it. Hence, the survey explains about the need to adhere to the set legal rules and ensure that technology and Internet do not undermine the basic tenets of copyright and related rights. Berne Convention for the Protection of Literary and Artistic Works (1886).

The Berne convention is based three important principles:

  1. Works originated by an author in a particular state must be given the same protection in

each of the other contracting states.

  1. Protection must not be conditional upon compliance with any formality.
  2. If contracting State provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.[6]

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RELATION BETWEEN INTELLECTUAL PROPERTY AND ARTIFICIAL INTELLIGENCE:

There has been a paradigm shift which is being experienced by AI in its theory application to commercial application.   According to the World Intellectual Property Organization (‘WIPO’), “early 340,000 patent families related to artificial intelligence [have been] published from 1960 until early 2018.”[7] The Copyright Law also tries in protection of the software codes which are an integral part of the AI programming. As a matter of fact, these AI algorithms which aren’t easy to be reversed are entitled to protection under the scope of trade secrets and thus the Trademark Law intends in protection of the names of such robots.

It is pertinent to mention here that the existing Intellectual Property rights affect the Artificial Intelligence in some way or other. IBM has the largest portfolio of AI patents with 8,290 patent applications, followed by Microsoft with 5,930 patent applications.[8] The creators/owners of original works not only intend to acquire Intellectual Property rights but also exploit such rights in the Artificial Intelligence mode of technologies. For instance, “the Chinese Academy of Science has between 2008 and 2016 transferred and transformed 7,000 IP assets (transfer, license, self-implementation, price-for-share, technology development and technical services) with a contract value of more than RMB12 billion”[9]. Therefore, it can be said that the Intellectual Property Law not only protects the inventions but also prevents exploitation of such rights in the inventions pertaining to AI. The invention needs to be novel and should be capable enough for industrial production in order to be patented under the existing laws and provisions of India.

The question of difficulty arises when the AI technologies and AI inventions start playing a role in creation of certain works. As seen earlier, Ais are playing a huge role in making recipes, designing of clothes etc and thus, it is being even more complicated and difficult to acquire rights to protect such works which are being invented by the Ais on their won and such works are even considered of the best quality than if being prepared by huma beings.  For instance- “In a related trend, an AI conceived and executed a masterpiece known as ‘The Next Rembrandt’ using huge set of raw data and deep-learning algorithms in 2017.”[10]

The human being usually puts his labour and skill and uses the abilities of AI in order to make certain data which are then put into the AI in order to invent on the basis of such data. Thus, it wouldn’t be justifiable if such human being is not being permitted to acquire rights under Intellectual Property Law in order to protect such inventions. Therefore, it wouldn’t act as an incentive in order to motivate such human being who created such inventions through the help of his own skill and AI’s learning abilities.

Thus, it can be concluded by saying that there are numerous questions which need to be answered after years regarding the actual meaning of “Author”, what comes under the purview of “Patentable”, who is an “Inventor”, liability in case of AIs hampering the IP rights of the human beings, status of ownership and whether AIs can be granted rights under the Patent Law when they become independent enough to invent things on their own without the help or efforts of human beings.

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[1] Meaning of Artificial Intelligence, http://jmc.stanford.edu/articles/whatisai.html

[2] Bayer Corporation v. Union of India and Others, 2014(5) ABR 242: MIPR 2014 (3) 53: 2014 (60) PTC 277

(Bom)

[3] “Intellectual, industrial and commercial property | Fact Sheets on the European Union | European Parliament” (September 17, 2019; 20:00 pm)

[4] “WIPO — A Brief History”. World Intellectual Property Organization (WIPO).

[5] Summaries of Conventions, Treaties and Agreements Administered by WIPO

[6] Supra 6

[7] Kathleen Walch, ‘Artificial Intelligence Is Not A Technology’, (2018) Available from: https://www.forbes.com/sites/cognitiveworld/2018/11/01/artificial-intelligence-is-not-a-technology/#7b4dc6645dcb, Accessed on 11th November, 2020 at 6:00 pm.

[8] Ibid, Pg. 58

[9] Ibid

[10] Kavita Iyer, ‘Google’s AI Creates Its Own AI That Is Superior Than The Ones Made By Humans’, (2017) Available from: https://www.techworm.net/2017/12/googles-ai-creates-ai-superior-ones-made-humans.html, Accessed on 12th November, 2020 at 8:00 am