Man Made Intelligence - It’s Impact In Intellectual Property Rights

Author: LawSphereX

Category: Intellectual Property

Published: 2026-08-23T20:34:09.554312+00:00

Updated: 2026-08-26T17:10:33.599+00:00

MAN MADE INTELLIGENCE: IT’S IMPACT IN

INTELLECTUAL PROPERTY RIGHTS

Dr. Anuradha Dhadge Girme, Assistant Professor BVDU, New Law College, Pune Ms. Bhargavi P, LL.M., BVDU, New Law College, Pune

ABSTRACT

Humans have been accepted widely as the Intelligent species on this planet. Artificial Intelligence carries out the process of Machine Learning created by humans for their own benefit which has the capacity to imitate a human and be recouped by them whenever demanded. The specified task performed by the machine will not involve any human intervention, once commanded by a human the machine will produce the desired result. The innovative work of the inventor will be protected under the Intellectual Property Rights as they enjoy monopoly rights in the market. Even though a machine has the capacity to store enormous amounts of data and complete the task at the earliest and with efficiency there are certain issues pertaining to its protection under Intellectual Property Rights.

The question is can a machine be considered a human and be protected as an inventor, does it have the ability to endorse an agreement, acquire the rights and liabilities in its own name? This article enlightens the growth of Artificial Intelligence by highlighting its impact in Copyright, patent and providing a reasonable remedy for its enforcement. Keywords: Machine Learning, Artificial Intelligence, Intellectual Property Rights, Inventor.

Introduction Manmade Intelligence also an Intangible and Nonnatural Invention is not a novel concept because of the rapidly growing sophisticated technologies it has become less of a fiction and aspects of applied science are incorporated in its undertaking. It aims to create “intelligent machines” whose main idea is to mimic human behavior. It includes characteristics like Learning, reasoning and perception and are designed to “Think” like human1. Artificial Intelligence in other words can be said as “study of system which uses method-based technique where any third party observing it might witness it to be able to solve any complex problem as intelligent as a human being”. There are two sub concepts pertaining to this topic, Strong AI and Weak AI and both cannot function without each other’s assistance.

Under Strong AI concept, the computer are powered to feel consciousness and reach emotions like humans. In Weak AI, techniques like logic, automated reasoning and other general structures are applied to solve problems but they lack the ability to deal with any real-world knowledge. Even though many philosophers have criticized these concepts their classification acts as a basis for the growth of Artificial Intelligence in today’s world2. Research Methodology This is a Doctrinal form of research where the validity of existing laws in society is checked and in case there are any discrepancies suggestions are made to rectify the same. This data is a secondhand piece which is already available, and the researcher collects and analyses it from somebody else. It includes books, articles, journals, information from online websites, newspapers, magazines, etc 3.

Jurisprudential Aspect of the Topic According to Jeremy Bentham Utilitarianism Theory, the act should be such that it produces maximum pleasure to maximum people4. The cost of initiation of the machine at the initial stage might be extravagant but in the long run it will prove economically beneficial to the 1 Karthiayani A, Artificial Intelligence And Intellectual Property Laws In India: Is It Time For Renaissance, (July 07, 2024, 09:59

AM)

Artificial-Intelligence-And-Intellectual-Property-Laws-In-India-Is-It-Time-For- Renaissance.pdf (ijlmh.com) 2 Chapter 1 A Brief History of Artificial Intelligence, (July 07, 2024, 10 AM), 17756.pdf (uobasrah.edu.iq) 3 Anuradha Dhadge Girme, Akanksha Ghatol & Jayashree Khandare, Fundamental rights and duties: Two sides of a coin, (July 07, 2024,10:06 AM), https://doi.org/10.53730/ijhs.v6nS2.5350

4 Aditya Negi, Theory of Bentham: Utilitarian principle, (July 07, 2024, 10:09 AM), IJNRD2305631.pdf

society. Once accepted by the majority it will replace and reduce their workload just like how computers replaced the traditional method of typewriting. Constitutional Aspect of the Topic According to Article 21 of the Indian Constitution5, if Machines are replaced by human being or considered in equal footing with human and protection is given to them under Intellectual Property Law then depending upon the facts and circumstance and other socio, economic, political and environmental factor it may either act as a safeguard tool or endanger their life. It is too early to decide its implication as it is only in the developing stage.

Evolution of Artificial Intelligence The basis for the invention of Artificial Intelligence was formulated by Alan Turing when he posted a classic question “Can machines Think” in his paper published in the early 1950’s and John McCarthy was the one who coined the term Artificial Intelligence. Alan invented a Turing machine based on Kurt Godel idea that “a computer has the ability to compute any computable function”. The question raised regarding Turing test was in a paper published “Mind” where it was asked that if computer could imitate feeling or perceive human behavior wouldn’t that be regarded as it having a sentient? The answer to that question can be understood by “Imitation Game”. This game had three personalities, two human and an Interrogator and it is the responsibility of the interrogator to identify the human which was later replaced as one human and a machine.

For successfully completing the Turing Test it is necessary to make small conversation with another human and understand the context of their conversation. Some of its difficulties include the capacity of storage. For an Artificial Intelligence to work it requires huge storage which according to him will take nearly fifty years. Another one is ‘The Argument from Consciousness’. Imitating the human is not sufficient as the machine will not be able to do respond like writing a poem or a piece of music to showcase its emotions. It will not work in its fullest range, like expressing or interpreting an art either and it can do so only if it’s a machine itself. It is only a method to convince the interrogator that it is feeling something but there is no way to prove that to what extent it is feeling. This method is like a child convincing

5 The Constitution of India Act, 2021

his mother to achieve some pleasure but there is no way for child to prove it and the mother believes it without any proof. Feigenbaum Test is an alternative to this which elucidates that the computer should solve problems like it is an expert in that particular field and not engage in any casual communication. Another one was proposed by Nicholas Negroponte it states that a human should interrogate a machine and check if it is a human as well. This was an even more difficult test because it must understand and determine the vague or incorrect communication to it by a human and have the potential to communicate in a similar way another human would do6. Artificial Intelligence under Copyright a) Concept of Authorship The main aim for protection of Copyright is to recognize the right of the person over his creativity and reward him for the same.

The language of the act clearly states that author is the person who creates and produces a work, composes a cinematography, music, or a dance recital, engages in the work of photography or videography. The term Person is nowhere defined in the Copyright Act 1957, but it is defined under the General Clause Act 1897 and it does not include a machine or works created by machine7. In Naruto v. Slater8, David Slater a photographer left his camera reserve unattended, and a monkey named Naruto took several pictures of itself which was later published in a book titled “Monkey Selfie” and throughout the book slater has stated that this picture was clicked by monkey itself. An infringement petition was imposed in 2015 by the organization of PETA to claim as a Next Friend of the Monkey against the defendant.

It was held that animals cannot be considered as a Next Friend or Guardian, and they cannot claim cognizance for any offence neither they can institute claim for any offence in the Federal Court as an interested party unless otherwise Congress decides in favor of it9. Adhering to the Copyright Act the court held that the term ‘Author’ does not accord protection to things which are in human in existence. 6 Brian McGuire, The History of Artificial Intelligence, (July 07, 2024, 10:12 AM), The History of Artificial Intelligence (washington. edu) 7 Dr. Raja Kamal & Prof. Biju M, The Wave Of Innovation Artificial Intelligence And I P Rights, (July 07, 2024, 10:30 AM), View of The Wave Of Innovation Artificial Intelligence And I P Rights (tojqi. net)

8 Naruto v. Slater, 16-15469, 2018 WL 1902414 (9th Cir. Apr. 23, 2018)

9 NARUTO V. SLATER, (July 07, 2024, 10:34 AM), Naruto v. Slater, No. 16-15469 (9th Cir. 2018) :: Justia

In Burrow Giles case10, for claiming copyright protection the object must be in writing or production of author. The defendant in this case was indicted for manufacturing uncertified transcript of photograph which was held by the court that even though copyright protection is granted to photographs according to the Constitutional Copyright clause it will relate to work created by human or their representative for their original intellectual content and not to a camera. In another instance, the Ninth Circuit opined that copyright protection can be claimed only if there is human involvement in the selection and arrangement of data. The machine or any computer can aid as an assisting tool for the humans, but the work should not be AI Generated. For Instance, if technology like “Chat GPT” is used to draw a painting of Steam Engine.

The work of human ends here itself and now it is for Artificial Intelligence to analyze the pattern, structure of each design and create a work which resembles Steam Engine. Another instance is with regards to Selection and arrangement of data. As stated earlier if there is any selection and arrangement of data by Artificial Intelligence then it cannot constitute originality as there is no human intervention but if the selection and arrangement of data for AI Generated work is done by human then only those part of work can get copyright protection11. b) Concept of Creativity and Originality It is a general rule that unless a work is not fixed in a tangible medium copyright cannot be granted. Creativity refers to the ideas behind a work which is a public domain as anyone can use the ideas to arrive at a particular work.

Originality refers to the expression of the idea in a fixed medium which requires “Skill and Judgement”. The essential pre-requisite for claiming a Copyright protection lies in originality of the work, it is not necessary that the work should be novel but excludes work copied from others. This concept can be better illustrated with the following doctrine. Under “Sweat of the Bow” Doctrine the Owner and Author of a work can claim Copyright if he does any act with simple diligence by merely showcasing his effort and expense even though there is a lack in its substantial creativity or originality12. According to “John Lock Theory” the property available in nature is common to all. Just like how a person owns his body the work created by his labour also belongs to that individual who has exerted his hard work in creating such a work.

The only limitation regarding this concept is that there must be no spoilage and surplus work is left for others. This theory is contradictory to copyright

10 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)

11 Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, (July 07, 2024, 10:36 AM), ai_policy_guidance.pdf (copyright.gov)

12 Ibid, F.No. 1, P. 2

ideology of protecting the expression and not the idea itself. In the landmark case of Eastern Book Company and Others v. D. B. Modak and Another13 Copyright protection was awarded as the inputs involved legal knowledge, skill and judgement made by the editors of Supreme Court Cases. The court shifted from the doctrine of “Sweat of the Brow” and adopted the doctrine of “Modicum of Creativity” which states that there should be certain amount of creativity vested in an invention. In 1970, “AARON” was founded by Cohen which created painting by installing codes and algorithms as a human being. The creator of Artificial Intelligence machine can claim protection as an “First and True Inventor”, dispose of agreement, sue, and be sued in his name. The issue was whether this analogy be applied for creation of work by a manmade machine?

The answer lies in the concept of recognizing Artificial Intelligence as an artificial person like a Company. The company has a name, address, common seal, and it can sue and be sued in its own name14. The agent appointed by the individual, company or any body of corporation can enter into an agreement on Work on Hire Basis. In case of Artificial Intelligence, the employee (invention by manmade machine) must accomplish the task entrusted by the employer (owner of the machine) in the normal course of employment and the employer will receive all the royalties and incur liabilities in case of work performed by his employee15. Artificial Intelligence under Patent Law For acquiring a patent protection for task performed by Artificial Intelligence three essential ingredients must be fulfilled: Ø The invention must be Novel. Ø Barely perceptible to the person skilled in the Art.

Ø Having the potential for Industrial Application.

13 Eastern Book Company and Others v. D.B. Modak and Another, A.I.R. 2008 SC 809, (2008)1 SCC 1

14 Shuchi Mehta, Analysis of Doctrines: ‘Sweat of the Brow’ & ‘Modicum of Creativity’ Vis - A - Vis Originality in Copyright Law, (July 07, 2024, 10:38 AM), Analysis of doctrines: ‘Sweat of the brow’ & ‘Modicum of creativity’ vis-a-vis Originality in Copyright Law (indialaw.in) 15 Doctrine of ”Work for Hire” under the Copyright Law, (July 07, 2024, 10:39 AM), Doctrine of "Work For Hire" under the Copyright Law (amlegals.com)

Artificial Intelligence undoubtedly fulfills the criteria of Industrial application but regarding the first two criteria there is a conflict in law16. To fulfill the criteria of Novelty the applicant must fulfill three elements: Ø Prior Art Ø Prior Publication and Ø Anticipation The United Kingdom Patents Act, 1977 states about “State of Art” which means that the technical knowledge before the grant of any patent to an applicant should not be found in the entire body of knowledge, either by way of written or oral description. This concept is followed in India, but it is nowhere stated in the Indian Patent Act17. The question is whether the task performed by Artificial Intelligence fulfills this criterion?

It is easy to satisfy the requirement of Non-obviousness or Inventive step as there will be enhanced efficacy over the task performed by Artificial Intelligence, but it is onerous to consider the work Novel as the machine lacks the ability to generate new work and its only obligation is to learn, analyze and interpret the already existing data as commanded. In Townsend v. Smith18, the United States Congress overruled the test of “Flash of Genius” which stated that for an valid outcome the data must be conceived by human mind. Later patent protection was granted to Artificial Intelligence Programmes like AlphaGo, Watson, Etc. Another aspect is that under Artificial Intelligence there is no thirst for Incentive. It disregards “Incentive Theory” which is essential for any patent holder as it allows him to innovate new thing or improve the existing one which will be lacking in a machine19.

In Thaler v. Comptroller General, the patent application for Artificial Intelligence named “DABUS” was filed by the owner Dr. Thaler. The European Court rejected his application and stated that patent can be awarded only to a human inventor and not a machine. He filed for the same application again in the Eastern District of Virginia under Thaler v. Hirshfeld, where his application was rejected on the ground that the inventor needs to take an oath while filing a patent application which cannot be done by a machine. Finally in

16 DR VK AHUJA, LAW RELATING TO INTELECTUAL PROPERTY, pp. 483 & 484, (LexisNexis, 3rd Edition,

Reprint 2022)

17 DR ELIZABETH VERKEY, INTELLECTUAL PROPERTY, pp. 303 & 304 (Eastern Book Company, 2015)

18 Townsend v. Smith, 36 F.2d 292,293 (1929)

19 Swapnil Tripathi & Chandni Ghatak, Artificial Intelligence and Intellectual Property Law, (July 07, 2024, 10:43 AM), 236436865.pdf (core.ac.uk)

the Federal Court of Australia Justice Beach recognized patent protection for the Artificial Intelligence in Thaler v. Commissioner of Patents20, he gave the proprietary right for owning and controlling the patent application to the inventor Dr. Thaler and further stated that there is no need for an inventor to hold the title or assign the invention Final Results and Findings v Artificial Intelligence is an evolving concept prevalent in all fields. For claiming Copyright and Patent protection the basic criteria need to be fulfilled that the invention must be a original under the former and Novel, Non obvious and Utility in the latter. v The role of Inventor plays a major role in claiming protection.

Since task performed by Artificial Intelligence will belong to a machine it needs to be considered as a Artificial Person and granted protection like a Company or body of corporation having a common sela and perpetual succession. v An agent can be appointed on a Hire or Contract Basis, and he should awarded and can reimburse liabilities to the affected party from the royalty he will receive for the works created by that machine. Suggestive Measures Ø The legislators must enact a statutory law for the protection of tasks performed by Artificial Intelligence in this and other related fields. Ø Few amounts of Royalty to be insure or secured as a contingency or consolidated fund in case there is any claim for insurance so that the damages can be paid to the person who has economically suffered it.

Conclusion Artificial Intelligence is drastically thriving, and the works are being created without any recognition. DABUS was the first machine which was granted patent protection. Even though there are many issues pertaining to recognition of their right there is no estoppel in its growth. Acceptance of Artificial Intelligence as a replacement to human is a big challenge. Humans

20 Thaler v Commissioner of Patents, [2021] FCA 879

entrust a sense of responsibility, attachment or there reflects their personality in the work they create which will be devoid in a machine. It will work systematically within its ambit with the already available data. If there is no sufficient data or the data is pirated then it cannot create, select, or determine anything on its own and their entire existence will be in jeopardy. Intellectual Property Rights protects the task performed by Artificial Intelligence by awarding its creativity. Chat GPT is the test invention in Artificial Intelligence by which we can have human-like conversation with a machine. With the changing needs of the society the law must be changed otherwise it will be futile.