The Impact Of AI On Intellectual Property Rights - Challenges In Authorship And Ownership

Author: LawSphereX

Category: Technology, Cyber & Privacy

Published: 2026-08-23T21:21:30.612+00:00

Updated: 2026-08-30T07:06:46.117Z

THE IMPACT OF AI ON INTELLECTUAL PROPERTY

RIGHTS:

CHALLENGES

IN AUTHORSHIP AND OWNERSHIP

Abhishek Gupta, Presidency University

ABSTRACT

Artificial intelligence (hereinafter referred as “AI”) has revolutionized various aspects of our lives including the realm of intellectual property (IP) law. As AI systems become increasingly sophisticated they are capable of generating creative works and inventions with minimal human intervention. This development poses significant challenges to traditional notions of authorship and ownership in IP law. The existing legal frameworks which are primarily designed to protect human-created works and inventions struggle to accommodate AI-generated content. This research paper explores the impact of AI on IP rights focusing on the challenges in determining authorship and ownership of AI-generated works and inventions. It examines the current legal landscape analyzing relevant case laws and provisions from different jurisdictions including India.

The paper also discusses potential solutions such as extending existing IP protection to AI-generated content creating sui generis protection systems or denying protection altogether. Furthermore it addresses policy considerations and recommendations for balancing incentives for innovation and creativity with public access to AIgenerated works and inventions. The research paper aims to contribute to the ongoing debate on adapting IP law to era of AI highlighting need for proactive and adaptable approach to address challenges posed by AI to traditional concepts of authorship and ownership in intellectual property law.

INTRODUCTION

The term "Artificial Intelligence (AI)" encompasses machine learning machine reasoning natural language processing sentiment classification and face recognition. 1 AI has various applications from providing real-time data for supply chain monitoring to autonomous vehicles; AI can be used in every industry. Since John McCarthy introduced AI as "the science and engineering of producing intelligent machines" in 1955 technology has made significant progress including systems that can produce impressive amount of output assist in processing vast amounts of data and even forecast litigation results. 2 Machine learning is subset of AI and involves techniques such as deep learning which is critical to AI.

convolutional neural network is type of machine learning making up system which is computer application that works based on mathematical algorithms and set of variables to produce results comparable to human intelligence. Machine learning eliminates need for stepby-step directions to obtain output. 3 When computer is given ability to learn intellectually it can handle process and analyze vast amounts of raw data including structured and unstructured data. The advantages of using AI in IPR include boosting innovation and development by helping to separate wheat from chaff and assisting in precise and efficient patent searches. Additionally AI can help other areas by maintaining patent databases and supervision. However there are also significant disadvantages of using AI in IPR.

For instance AI may lead to repetition of existing patents creating mechanism for inventors to find patents similar to their ideas and stalling innovation and growth. 4 AI-generated intellectual property is new concept and therefore issue of patentability of AIgenerated inventions continues to garner attention. Though AI may be programmed and utilized to make discoveries and generate new ideas it still needs humans to assist in exploration and 1 “Ballardini R. (2021). AI and IPR: The Quest or Plea for Ai as Legal Subject. Ballardini RM & van den Hoven van Genderen R. ” AI and IPR: the quest or plea for AI as legal subject” in Pihlajarinne T. (eds) Alen-Savikko A. (eds) and Havu K. (eds) AI and the Media-Reconsidering Rights and Responsibilities Edward Elgar. ” 2 “Subaih Al-Hamlan J. B. (2019).

The Impact of AI on the Quality of Administrative Decision from the Point of View of Secondary School Leaders in Al-Jouf Educational Region. Solouk Magazine Ibn Badis University Mostaganem Algeria Volume 8 Part 1 pp. 18-19. ” 3 “Prof. A. Lakshminath &Dr. Mukund Sarda Digital Revolution and Artificial Intelligence- Challenges to Legal Education and Legal Research CNLU LJ (2) (2011-2012). ” 4 “Liu Z. Shen J. Luo J. Peng Y. & Yen D. C. (2021). AI and Intellectual Property Rights: Systematic Literature Review. Journal of Organizational Computing and Electronic Commerce 31(2) 94-111. ” development in the invention process. In 2020 the Indian Patent Office granted India's firstever AI-generated patent to AI system called DABUS. 5 The patent though granted does not recognize authorship which is crucial for obtaining inventors' rights under Indian Patents Act 1970.

6 A fortiori AI-generated intellectual property has numerous advantages such as assisting in patent searches and boosting innovation but also presents significant challenges to IPR such as potential hindrance to creativity and repetition of ideas. Therefore it is essential to promote responsible use and regulation of AI to ensure that balance between innovation and protection is not lost. RESEARCH QUESTIONS This research endeavor strives arduously to address following research questions: (a) Whether AI will be held responsible for any infringement of Intellectual Property? (b) What will be legal sanctions imposed on AI if it infringes rights of IP Holder? (c) How will humans deal with AI that doesn't require human intervention and who will be accountable for actions of AI?

LITERATURE REVIEW

The quest to hold AI (AI) operators as legal persons has been investigated by Rosa Ballardini. 7 By situating study in relevant industry environment of entertainment and press as well as legislative structure of IPR Ballardini argues for governing AI operators as legal persons. Andrea Moriggi examines potential legal problems of Intellectual Property in context of AI and emphasizes importance of AI in speeding up process and extent of innovation. 8 Swapnil Tripathi and Chandni Ghatak offer valuable insights into growing ambit of IPR legislation and 5 “Krishnamurthy A. (2020). India grants first-ever AI-generated patent. World Intellectual Property Review [online] Available at: https://www. worldipreview. com/news/india-grants-first-ever-ai-generated-patent-20354 [Accessed 18 July 2024]. ” 6 “Singh H. (2021).

India Issues Guidelines for Examination of Patent Applications Related to AI and Blockchains. Lexology [online] Available at: https://www. lexology. com/library/detail. aspx? g=6f4fc1c9-4aee-4c31-be25- 1536de31c6a0 [Accessed 18 July 2024]. ”

7 “Ballardini R. (2021). AI and IPR: The Quest or Plea for Ai as Legal Subject.”

8 “Moriggi A. (2017). The Role of Intellectual Property in the Intelligence Explosion. Rochester NY: Social Science Research Network.”

AI as well as inherent issues that global perspective on subject presents. 9 The study will engage these sources examine other relevant research and generate recommendations on patentability and proprietary rights of AI-generated intellectual property. AI AND ITS APPLICATIONS IN CREATIVE AND INVENTIVE FIELDS AI encompasses various techniques that enable machines to emulate human intelligence. 10 Machine learning subset of AI allows systems to learn from data without explicit programming. 11 Deep learning more advanced form of machine learning utilizes neural networks to process complex patterns. 12 These interconnected nodes mimic structure and function of human brain. 13 AI is increasingly being used to assist and augment human creativity and inventiveness. 14 AIassisted creations involve human-AI collaboration where AI tools enhance creative process.

15 Examples include AI-powered music composition software and AI-based design tools. 16 AIgenerated creations on other hand are produced autonomously by AI with minimal human input. 17 AI algorithms can generate art music literature and even inventions. 18 9 “Tripathi S. & Ghatak C. (2018). AI and intellectual property law. Christ University Law Journal 7(1) 83-98. ” 10 “Haenlein M. & Kaplan A. (2019). brief history of artificial intelligence: On the past present and future of artificial intelligence. California Management Review 61(4) 5-14. https://doi. org/10. 1177/0008125619864925” 11 “Jordan M. I. & Mitchell T. M. (2015). Machine learning: Trends perspectives and prospects. Science 349(6245) 255-260. https://doi. org/10. 1126/science. aaa8415”

12 “LeCun Y. Bengio Y. & Hinton G. (2015). Deep learning. Nature 521(7553) 436-444.

https://doi. org/10. 1038/nature14539” 13 “Agatonovic M. & Heras S. (2019). review of neural networks: Origins applications and challenges. Intelligent Systems Reference Library 149 3-17. https://doi. org/10. 1007/978-3-030-02683-7_1” 14 Mishra S. & Tripathi A. K. (2021). The impact of AI on creative and inventive activities. Journal of Intellectual Property Rights 26(1&2) 35-44. http://nopr. niscair. res. in/handle/123456789/57257 15 “Wang P. & Goertzel B. (2012). Theoretical foundations of artificial general intelligence. Atlantic Press. https://doi. org/10. 2991/978-94-91216-62-6” 16 “Briot J. P. Hadjeres G. & Pachet F. (2020). Deep learning techniques for music generation. Computational Synthesis and Creative Systems. Springer Cham. https://doi. org/10. 1007/978-3-319-70163-9” 17 “Ramesh A. Dhariwal P. Nichol A. Chu C. & Chen M. (2022).

Hierarchical text-conditional image generation with CLIP latents. arXiv preprint arXiv:2204. 06125. https://doi. org/10. 48550/arXiv. 2204. 06125”

18 “Abbott R. (2020). The reasonable robot: AI and the law. Cambridge University Press.

https://doi. org/10. 1017/9781108631761 ; Elgammal A. Liu B. Elhoseiny M. & Mazzone M. (2017). CAN: Creative adversarial networks generating "art" by learning about styles and deviating from style norms. arXiv preprint arXiv:1706. 07068. https://doi. org/10. 48550/arXiv. 1706. 07068; Sturm B. L. Ben-Tal O. Monaghan Ú. Collins N. Herremans D. Chew E. & Pachet F. (2019). Machine learning research that matters for music creation: case study. Journal of New Music Research 48(1) 36-55. https://doi. org/10. 1080/09298215. 2018. 1515233 ; Thaler S. (2021). Artificial inventor project. Retrieved from https://artificialinventor. com/” AI has potential to democratize creativity and innovation by making tools accessible to wider audience. 19 It can also increase productivity and efficiency in creative and inventive processes.

20 However use of AI raises concerns about job displacement and devaluation of human skills. 21 There are also ethical considerations surrounding AI bias and potential for AIgenerated content to be used maliciously. 22

AUTHORSHIP

CHALLENGES

POSED BY AI IN COPYRIGHT LAW Copyright law protects original works of authorship fixed in tangible medium. 23 The originality requirement demands that work be independently created and possess modicum of creativity. 24 Traditionally authorship has been attributed to human creators as evidenced by human authorship doctrine. 25 The increasing sophistication of AI systems challenges human authorship doctrine. 26 In AI-assisted works determining extent of human contribution is crucial for establishing authorship. 27 However AI-generated works lack direct human authorship raising questions about their eligibility for copyright protection. 28 Jurisdictions have taken different approaches to AI authorship. In United States Copyright Office has stated that it will only register works created by human authors. 29 The European Union has not yet provided clear guidance on AI-generated works.

30 The United Kingdom's copyright law recognizes computer-generated works but grants authorship to person who 19 “Guadamuz A. (2017). Do androids dream of electric copyright? Comparative analysis of originality in AI generated works. Intellectual Property Quarterly 2 169-186. https://ssrn. com/abstract=2981304” 20 “Dhakal M. (2020). AI and intellectual property law: analysis of the future impact. Journal of Intellectual Property Law & Practice 15(12) 1029-1041. https://doi. org/10. 1093/jiplp/jpaa160” 21 “Frey C. B. & Osborne M. A. (2017). The future of employment: How susceptible are jobs to computerisation? Technological Forecasting and Social Change 114 254-280. https://doi. org/10. 1016/j. techfore. 2016. 08. 019” “Yampolskiy R.

V.

(2020). AI safety and security. Chapman and Hall/CRC. https://doi.org/10.1201/9781351251389; Burt A. (2020). The AI transparency paradox. Harvard Business Review. Retrieved from https://hbr.org/2020/12/the-ai-transparency-paradox”

23 “17 U.S.C. § 102(a) (2018).”

24 “Feist Publications Inc. v. Rural Telephone Service Co. 499 U.S. 340 (1991).”

25 “Ginsburg J. C. (2018). People not machines: Authorship and what it means in the Berne Convention. IIC - International Review of Intellectual Property and Competition Law 49(2) 131-135. https://doi.org/10.1007/s40319-018-0670-x” 26 “Yanisky-Ravid S. & Velez-Hernandez L. A. (2018). Copyrightability of artworks produced by creative robots and originality: The formality-objective model. Minnesota Journal of Law Science & Technology 19(1) 1-53. https://scholarship.law.umn.edu/mjlst/vol19/iss1/2”

27 “Hristov K. (2017). AI and the copyright dilemma. IDEA: The IP Law Review 57(3) 431-454.

https://ipmall.law.unh.edu/sites/default/files/hosted_resources/IDEA/hristov_formatted.pdf” 28 “Samuelson P. (1986). Allocating ownership rights in computer-generated works. University of Pittsburgh Law Review 47(4) 1185-1228. https://doi.org/10.5195/lawreview.1985.805”

29 “U.S. Copyright Office. (2017). Compendium of U.S. Copyright Office practices (3rd ed.).

https://www. copyright. gov/comp3/” 30 “European Parliament. (2020). Intellectual property rights for the development of AI technologies. Retrieved from https://www. europarl. europa. eu/RegData/etudes/STUD/2020/655030/EPRS_STU(2020)655030_EN. pdf” arranged for the work's creation. 31 India's stance on AI authorship remains unclear with no specific provisions addressing the issue. 32 Extending copyright protection to AI-generated works is one potential solution but it raises concerns about incentivizing creation and allocation of rights. 33 Creating sui generis protection system specifically for AI-generated works could provide tailored approach. 34 Alternatively denying copyright protection to AI-generated works would preserve human authorship requirement but may discourage development and use of AI in creative fields.

35 PATENT AND PROPRIETARY RIGHTS IN INDIA: OVERVIEW In India patents are granted for inventions that are new useful and novel. Patents are granted for products processes or methods of manufacturing and machines with the aim of promoting innovation and protecting intellectual property. The key legislation governing patent law and proprietary rights in India includes Patents Act 1970, Copyright Act 1957, Trademarks Act 1999, the Geographical Indications of Goods Act 1999 and the Designs Act 2000. These acts provide overarching framework of intellectual property protection in India. The filing and grant of patents are governed by the Patents Act 1970.

36 India is member of World Intellectual Property Organization (WIPO) and has ratified several international agreements related to patents and proprietary rights such as the Paris Convention for Protection of Industrial Property and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). 37 Patent law is essential aspect of intellectual property (IP) protection in India. Patents provide inventor with exclusive rights to manufacture sell and license their invention. These rights are granted in exchange for inventor's disclosure of invention to public. 38 In India patent office

31 “Copyright Designs and Patents Act 1988 c. 48 § 9(3) (UK).”

32 “Tripathi S. & Ghatak C. (2018). AI and intellectual property law. Christ University Law Journal 7(1) 83-97. https://doi.org/10.12728/culj.12.5” 33 “Ramalho A. (2017). Will robots rule the (artistic) world? proposed model for the legal status of creations by AI systems. Journal of Internet Law 21(1) 12-25. https://ssrn.com/abstract=2987757” 34 “Deltorn J. M. & Macrez F. (2018). Authorship in the age of machine learning and artificial intelligence. In S. Loiseau L. Merabet G. Pignot & C. Zolynski (Eds.) New developments in digital law (pp. 173-188). Lextenso Editions.” 35 “Ginsburg J. C. & Budiardjo L. A. (2019). Authors and machines. Berkeley Technology Law Journal 34(2) 343-456.”

36 “The Patents Act 1970 No. 39 Acts of Parliament 1970 (India).”

37 “India - Patents” WIPO accessed 18 July 2024.”

38 “David Pressman Patent It Yourself 17th ed. (Berkeley CA: Nolo 2016).”

grants patents for 20 years from date of filing. During this period no other person can manufacture sell or import patented invention without permission of patentee. 39 Patents are critical to stimulate innovation and research while promoting economic growth. patent system provides incentive to inventors by allowing them to reap benefits of their invention. This incentivizes development of new industries creates new employment opportunities and improves consumer welfare. Patents ensure that invention is not just mere idea but made reality thus contributing significantly to economic growth and prosperity. 40 Proprietary rights refer to rights conferred by law on owner of property to use possess and dispose of it as they please. Proprietary rights are critical to protect secure and enforce rights over IP.

Intellectual property can be owned and traded like any other property such as buildings land or stocks. Intellectual property rights (IPRs) include patents trademarks copyrights geographical indications industrial designs and trade secrets. It is up to IP owner to decide how to exploit their IP assets including by licensing or selling IPRs. 41 The Indian government recognizes that IP assets are significant contributors to nation's economic growth and hence encourages innovation and R&D through patents and other forms of IP protection. robust regime for protection of IPRs can serve as catalyst for development of new and innovative technologies promote foreign investment in country foster creativity and reward achievement and thereby help nation progress towards knowledge-based society.

42 PATENTABILITY OF AI-GENERATED INTELLECTUAL PROPERTY In recent years use of AI (AI) has grown significantly and has become prominent part of our daily lives. AI-enabled devices have been used to perform various tasks and reduce human labour. With advancement of AI technology new and challenging legal issues have arisen including patentability of AI-generated inventions. This brief will analyze patentability of AIgenerated inventions and its legal framework. 39 "Frequently Asked Questions on Patents” Ministry of Commerce and Industry Government of India accessed

18 July 2024.”

40 “Eamon P. Murphy and Elizabeth G. S. Niles "A Fractured Patent System” Fordham Intellectual Property Media and Entertainment Law Journal 30 no. 1 (2019): 1-44.” 41 "Understanding Intellectual Property Rights” World Intellectual Property Organization accessed 18 July 2024. 42 "National Intellectual Property Policy 2016” The Department for Promotion of Industry and Internal Trade accessed 18 July 2024.

In current technological landscape relationship between patent laws and AI is becoming more intimate. Despite fact that AI-enabled gadgets function in manner that is similar to that of calculators and other technologies in same category their operation is substantially more complicated. Computers that are equipped with AI are now able to carry out tasks that centre on their own major observations which may give them ability to build anything. While this is tremendous technical breakthrough it also raises new and complex legal difficulties most notably in area of Patents Act. These challenges are likely to be difficult to solve. The owner of patent is only person who has right to make and sell products based on that invention. patent is legal document.

innovation may be defined as product or approach that offers people new way to accomplish something even if it is creative solution to problem that already exists in technology. The owner of such property is granted legal ability to prevent others from producing selling or even utilising protected innovation for certain amount of time throughout term of their ownership. As direct result of this privilege that was awarded in this particular instance warrants implementation of limitation in favour of first invention. AI technology has posed new challenges to traditional patent laws. As AI technology evolves new questions have arisen about whether AI-generated inventions are eligible for patent protection. One of essential conditions of patentability is describing how well invention operates which is significant challenge in case of AI technology.

If AI system is imitating human task it will not fulfil essential condition of patentability and hence patent claim will be rejected. Therefore challenges such as these unique to AI-generated inventions must be addressed by law. As AI technologies become increasingly integrated into creative process new legal issues will emerge and existing laws will need to be modified in order to accommodate these new problems. Even while this is significant step forward in appreciating creativity displayed by these technologies when generating books artworks and other types of creation patent applications and concepts for AI technology should also be given sufficient attention. If AI systems are not monitored they may soon exceed human intelligence in their ability to conduct operations.

This raises questions about how AI systems would manage and control their own existence if they are allowed to continue developing unchecked. The portability of AI-enabled devices makes it possible for them to do activities with little amount of involvement from humans. 43 A fortiori patentability of AI-generated inventions poses new challenges to traditional patent laws. The legal framework must be adapted to meet these challenges and necessary changes must be made to ensure that AI-generated inventions are eligible for patent protection. Whether AI-generated inventions meet essential conditions of patentability should be closely examined by law. The primary goal must be to encourage innovation while ensuring that such inventions do not violate rights of any existing intellectual property.

OWNERSHIP

CHALLENGES

POSED BY AI IN OTHER IP DOMAINS A. Trade secrets and AI AI algorithms and training data are often considered valuable trade secrets.44 Companies invest significant resources in developing AI systems and curating datasets.45 Trade secret protection allows them to safeguard their competitive advantage.46 However rapid advancement of AI technologies and increasing availability of data pose challenges to maintaining secrecy.47 The use of cloud computing and collaborative development models in AI make it difficult to control access to trade secrets.48 Reverse engineering of AI systems is becoming easier threatening secrecy of algorithms.49 Enforcing trade secret rights can be challenging as infringement is hard 43 “Rashmi R. & Sneha S. (2017). Artificial Intelligence: IPR Liability and Ethical Issues. Int'l. In-House Counsel

J. 11 1.”

44 “Lemley M. A. (2020). The surprising virtues of treating trade secrets as IP rights. Stanford Law Review 72(2) 311-354. https://www. stanfordlawreview. org/print/article/the-surprising-virtues-of-treating-trade-secrets-as-iprights/” 45 “Surden H. (2020). AI and trade secrets. In R. Abbott (Ed. ) Research handbook on intellectual property and AI (pp. 421-441). Edward Elgar Publishing. ” 46 “Sandeen S. K. (2018). The evolution of trade secret law and why courts commit error when they do not follow the Uniform Trade Secrets Act. Hamline Law Review 33(2) 493-543. https://digitalcommons. hamline. edu/hlr/vol33/iss2/6” 47 “Levine D. S. & Seaman C. B. (2018). The DTSA at one: empirical study of the first year of litigation under the Defend Trade Secrets Act. Wake Forest Law Review 53(1) 105-156. https://wakeforestlawreview.

com/2018/04/the-dtsa-at-one-an-empirical-study-of-the-first-year-of-litigationunder-the-defend-trade-secrets-act/” 48 “Lobel O. (2017). The DTSA and the new secrecy ecology. Business Entrepreneurship & Tax Law Review 1(2) 369-389. https://scholarship. law. missouri. edu/betr/vol1/iss2/4“ 49 ‘’Varadarajan D. (2020). Trade secret precautions possession and notice. Hastings Law Journal 71(4) 1153-

1202. https://repository.uchastings.edu/hastings_law_journal/vol71/iss4/5’’

to detect and prove. 50 The lack of formal registration for trade secrets also complicates enforcement efforts. 51 B. Trademarks and AI AI-generated marks such as logos and slogans raise questions about distinctiveness and likelihood of confusion. 52 AI algorithms can create marks that closely resemble existing ones potentially infringing on trademark rights. 53 The use of AI in trademark searches and clearance processes may also impact assessment of likelihood of confusion. 54 Enforcing trademark rights against AI-generated content can be difficult due to lack of clear attribution. 55 Determining liability for infringement by AI systems is complex issue as multiple parties may be involved in development and deployment of AI. 56 The territoriality of trademark rights further complicates enforcement in digital realm where AI-generated content can easily cross borders. 57 C.

Industrial designs and AI AI is increasingly being used to generate novel and distinctive designs from product packaging to fashion items. 58 Generative adversarial networks (GANs) and other AI techniques can create designs that are aesthetically pleasing and optimized for functionality. 59 AI-assisted design

50 ‘’Rowe E. A. (2016). RATs TRAPs and trade secrets. Boston College Law Review 57(2) 381-426.

https://lawdigitalcommons.bc.edu/bclr/vol57/iss2/2’’ 51 “Almeling D. S. (2012). Seven reasons why trade secrets are increasingly important. Berkeley Technology Law Journal 27(2) 1091-1117.” 52 “Beebe B. & Fromer J. C. (2018). Are we running out of trademarks? empirical study of trademark depletion and congestion. Harvard Law Review 131(4) 945-1045. https://harvardlawreview.org/2018/02/are-we-runningout-of-trademarks/” 53 “Lim D. (2018). AI & IP: Innovation & creativity in age of accelerated change. Akron Law Review 52(3) 813-

872. https://ideaexchange.uakron.edu/akronlawreview/vol52/iss3/5”

54 “Tushnet R. (2019). Registering disagreement: Registration in modern American trademark law. Harvard Law Review 130(4) 867-933. https://harvardlawreview. org/wp-content/uploads/2019/02/867-934_Online. pdf“ 55 ‘’Calboli I. (2020). Trademarks and the COVID-19 pandemic: empirical analysis of trademark applications including the terms "COVID," "Coronavirus," "Quarantine," "Social Distancing," "Six Feet Apart," and "Shelter in Place". Michigan State Law Review 2020(2) 127-172. https://digitalcommons. law. msu. edu/lr/vol2020/iss2/1’’ 56 “Myers G. (2017). Trademarks in the digital age: Rethinking trademark use. The Trademark Reporter 107(6) 1278-1314. https://www. inta. org/wp-content/uploads/public-files/advocacy/committeereports/Myers_TMR_Nov-Dec2017. pdf” 57 “Dinwoodie G. B. (2019). Territorial overlaps in trademark law: The evolving European model.

Notre Dame Law Review 92(4) 1669-1746. https://scholarship. law. nd. edu/ndlr/vol92/iss4/6”

58 “Du Pont de Nemours and Company v. Synbit Pty Ltd No. NSD 107 of 2022 (FCA March 24 2023).”

59 “Castillo D. (2019). Teaching AI to be creative: new approach to AI-generated art. Harvard Journal of Law & Technology Digest. Retrieved from https://jolt. law. harvard. edu/digest/teaching-ai-to-be-creative-a-newapproach-to-ai-generated-art” processes can lead to more efficient and innovative outcomes. 60 Attributing ownership of AI-generated designs can be challenging as creative process involves both human and machine contributions. 61 The allocation of design rights between AI developers users and other stakeholders is complex issue that lacks clear legal guidance. 62 Enforcing design rights against AI-generated designs may also be difficult as infringement can be harder to detect and prove. 63 The use of AI in trade secrets trademarks and industrial designs presents unique challenges for ownership and enforcement.

As AI technologies continue to advance policymakers and legal experts must address these challenges to ensure adequate protection for IP rights holders. Adapting existing legal frameworks and developing new approaches may be necessary to strike balance between promoting innovation and safeguarding interests of creators and businesses in AI-driven world.

EMERGING

CHALLENGES

FACED BY AI-GENERATED INTELLECTUAL PROPERTY As AI (AI) technology becomes more advanced several challenges arise in field of intellectual property (IP) raising questions about legal ownership inventorship and patentability of AIgenerated IP. AI-generated inventions are likely to create shift in traditional concepts related to IP protection. This article aims to shed light on challenges and issues that arise due to AI and its implications on intellectual property rights. One of most significant issues concerning AI-generated IP is inventorship. In India Patents Act

1970 defines "inventor" as "a person or persons disclosed or claimed as inventor or any of them

in patent or application for patent and legal representative of any deceased person so disclosed." However question arises as to who is inventor of AI-generated invention and it is unclear whether AI system could be considered inventor. In US the Court of Appeals for the Federal 60 “Abbott R. (2021). AI and intellectual property: Toward new framework. In R. Abbot (Ed.) Research handbook on intellectual property law and emerging technologies (pp. 2-28). Edward Elgar Publishing.” 61 “Ramalho A. & Gomez K. (2020). Copyright and artificial creation: Does EU copyright law protect AI-assisted output? International Review of Intellectual Property and Competition Law 51(7) 784-816.”

62 “Gervais D. J. (2020). The machine as author. Iowa Law Review 105(5) 2053-2106.

https://ilr.law.uiowa.edu/print/volume-105-issue-5/the-machine-as-author/”

63 “Ebrahim T. Y. (2019). AI inventions & patent disclosure. Penn State Law Review 125(1) 150-231.

https://elibrary. law. psu. edu/pslr/vol125/iss1/8” Circuit has held that only natural persons can be inventors. 64 Similarly in India according to Section 6 of Patents Act 1970 only individuals can apply for patents. Therefore it is imperative to determine whether natural person, owner of AI system or the developer of algorithm is inventor of AI-generated IP. 65 The question of ownership is another another obstacle for AI-generated intellectual property. When producing new goods AI is used and individual who applies technology is considered to be inventor of new innovation as well as proprietor of creation. However issue of who owns copyright of works based on AI still has to be answered. When human being comes up with creative step and makes invention innovation either belongs to human who came up with inventive step or to human's employer.

As result it is essential to determine who owns intellectual property that is produced by AI which raises question of how to differentiate between proprietors and inventors. 66 In addition patentability of AI-based inventions is crucial issue because not all AI-generated inventions can be patented. In India patent can be obtained for inventions that are novel inventive and capable of industrial application. 67 AI systems are capable of producing multitude of products making it difficult to determine which AI-generated inventions are eligible for patent protection. Hence it is important to determine what makes AI-generated invention novel and non-obvious in field of patent law. 68 In addition existing intellectual property laws such as patent and copyright regulations need to be updated in order to accommodate AI-driven innovations.

These updates should include AI ethics data protection and security measures. It should also be determined by IP policy whether or not technology related to AI may be patented. The Patent Cooperation Treaty (PCT) and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have both been approved by India. The purpose of both international treaties is to bring patent laws all over

64 “Thaler v. Hirshfeld 775 F.3d 1274 (Fed. Cir. 2014).”

65 “Abhishek Kapse ‘Artificial Intelligence and Patenting Issues’ (2019) 10(1) Journal of Engineering Science and Technology 82.” 66 “Katie M. Scott ‘The Artificial Inventor Project: Setting AI Loose in the Patent Field and Examining the Resulting Legal and Policy Implications’ (2019) 26(2) Richmond Journal of Law and Technology 1.”

67 “Patents Act 1970 section 2(1)(j).”

68 “Priti Suri ‘Patentability of AI and Machine Learning’ (2018) 4(4) International Journal of Advanced Research in Computer Science and Management Studies 48. ” globe into conformity with one another. The Patent Act of 1970 in India is likewise subject to periodic amendments to bring it into conformity with these international legal instruments. 69 Lastly efficiency of processes that are used to administer IP is vital component. The management of intellectual property is one of most labor-intensive and sometimes hazardous parts of profession. Legal firms and corporate intellectual property departments are responsible for management of thousands of unique pieces of intellectual property material which might come from hundreds of various sources.

If this procedure could be automated law firms and intellectual property specialists would be free to focus their attention on more important matters. AI which is capable of processing vast amounts of data in quick and effective manner may be of assistance with both accuracy and dependability. This not only allows law corporations and IP specialists to play more proactive role within organisation but it also enables them to create insights from data in order to assist in defining prospective performance of company all while computers handle more practical aspects of IP administration. 70

POLICY CONSIDERATIONS AND

RECOMMENDATIONS

FOR ADDRESSING AI'S IMPACT ON IP LAW A. Balancing incentives for innovation and creativity with public access to AI-generated works and inventions Policymakers must strike delicate balance between incentivizing AI-driven innovation and ensuring public access to AI-generated works and inventions. 71 Overly restrictive IP protection may hinder dissemination of knowledge and stifle further innovation. 72 However insufficient protection may discourage investment in AI research and development. 73 balanced approach 69 “The Patent Cooperation Treaty opened for signature June 19 1970 828 U. N. T. S. 3 and Agreement on Trade- Related Aspects of Intellectual Property Rights. ” 70 “Andrian Valeanu ‘A Future of AI and Intellectual Property’ (2020) 8(4) Eureka: Social and Humanities 43. ” 71 “Yanisky-Ravid S. (2017).

Generating Rembrandt: AI copyright and accountability in the 3A era—The humanlike authors are already here—A new model. Michigan State Law Review 2017(4) 659-726. https://digitalcommons. law. msu. edu/lr/vol2017/iss4/1” 72 “Guadamuz A. (2017). Do androids dream of electric copyright? Comparative analysis of originality in AI generated works. Intellectual Property Quarterly 2 169-186. https://ssrn. com/abstract=3981304” 73 “Tubb H. (2017). AI and IP: Must we keep it real? Australian Intellectual Property Journal 27(2) 81-103. https://ssrn. com/abstract=3059092” should consider unique characteristics of AI and its potential to generate works and inventions at unprecedented scale. 74 B. Harmonizing international approaches to AI and IP law The global nature of AI development and deployment necessitates international cooperation and harmonization of IP laws.

75 Divergent national approaches to AI and IP can create legal uncertainties and barriers to cross-border innovation. 76 International organizations such as World Intellectual Property Organization (WIPO) can play crucial role in facilitating dialogue and developing common principles for addressing AI's impact on IP law. 77 Harmonization efforts should aim to establish consistent standards for protecting AI-generated works and inventions while promoting fair competition and access to knowledge. 78 C. Adapting existing IP frameworks vs. creating new sui generis protection systems Policymakers must decide whether to adapt existing IP frameworks or create new sui generis protection systems for AI-generated works and inventions. 79 Adapting existing frameworks such as copyright and patent laws may provide more familiar and stable legal environment.

80 However unique characteristics of AI may require significant modifications to these frameworks. 81 Creating new sui generis protection systems tailored to AI could offer more flexibility and better address specific challenges posed by AI. 82 However implementing new 74 “Hilty R. M. (2019). Intellectual property justification for artificial intelligence. In J. C. Lai & A. Maget Dominicé (Eds. ) Intellectual property and digital trade in the age of AI and big data (pp. 119-152). Kluwer Law International. https://doi. org/10. 7892/boris. 104839’’ 75 ‘’Michaux B. (2018). Singularité technologique singularité humaine et droit d'auteur. Propriétés intellectuelles 2018(1) 41-50. https://www. cairn. info/revue-proprietes-intellectuelles-2018-1-page-41. htm’’ 76 ‘’Deltorn J. -M. (2017). Deep creations: Intellectual property and the automata. Frontiers in Digital Humanities

4 3. https://doi.org/10.3389/fdigh.2017.00003’’

77 ‘’World Intellectual Property Organization. (2020). WIPO conversation on intellectual property (IP) and AI (AI) (WIPO/IP/AI/2/GE/20/1). https://www. wipo. int/meetings/en/doc_details. jsp? doc_id=470053’’ 78 “Almuhanna M. (2019). The role of WIPO in the development of international intellectual property law. Queen Mary Journal of Intellectual Property 9(3) 303-322. https://doi. org/10. 4337/qmjip. 2019. 03. 05” 79 “Ballardini R. M. He K. & Roos T. (2019). AI-generated content: Authorship and inventorship in the age of artificial intelligence. In T. Pihlajarinne J. Vesala & O. Honkkila (Eds. ) Online distribution of content in the EU (pp. 117-135). Edward Elgar Publishing. https://doi. org/10. 4337/9781788119900. 00014” 80 “Ramalho A. (2018). Will robots rule the (artistic) world? : proposed model for the legal status of creations by AI systems. Journal of Internet Law 21(1) 12-25.

https://ssrn. com/abstract=2990271” 81 “Lauber-Rönsberg A. & Hetmank S. (2019). The concept of authorship and inventorship under pressure: Does AI shift paradigms? Journal of Intellectual Property Law & Practice 14(7) 570-579. https://doi. org/10. 1093/jiplp/jpz061”

82 “Bonadio E. & McDonagh L. (2020). AI as producer and consumer of copyright works: Evaluating the

consequences of algorithmic creativity. Intellectual Property Quarterly 112-137. https://papers. ssrn. com/sol3/papers. cfm? abstract_id=3617197’’ systems may be complex and time-consuming requiring extensive international coordination. 83 D. Addressing ethical concerns related to AI and IP such as bias and transparency The development and use of AI in context of IP raise important ethical concerns. 84 AI systems may perpetuate biases present in training data or algorithms leading to discriminatory outcomes in generation of works and inventions. 85 Ensuring transparency and accountability in AI decision-making processes is crucial to mitigate these risks. 86 Policymakers should consider incorporating ethical principles such as fairness non-discrimination and explainability into IP frameworks governing AI.

87 Collaborative efforts between policymakers AI developers and civil society can help address these ethical challenges and promote responsible AI innovation. 88 E. Recommendations for policymakers legislators and stakeholders in India India as rapidly developing AI hub must proactively address challenges posed by AI to its IP regime. 89 Policymakers and legislators should engage in comprehensive stakeholder consultations to understand unique needs and concerns of Indian AI ecosystem. 90 The following recommendations can guide India's approach to AI and IP law:

1. Develop national AI strategy that aligns with India's IP policy objectives and promotes

innovation creativity and public access to knowledge.91 83 ‘’Yu R. (2017). The machine author: What level of copyright protection is appropriate for fully independent computer-generated works? University of Pennsylvania Law Review 165(5) 1245-1270. https://scholarship.law.upenn.edu/penn_law_review/vol165/iss5/5” 84 “Sætra H. S. (2021). framework for evaluating and disclosing the ESG related impacts of AI with the SDGs: The case of conditional cash transfer system. Sustainability 13(15) 8503. https://doi.org/10.3390/su13158503”

85 “Crawford K. & Whittaker M. (2016). The AI now report: The social and economic implications of AI

technologies in the near-term. https://ainowinstitute.org/AI_Now_2016_Report.pdf” 86 “Burt A. (2019). The AI transparency paradox. Harvard Business Review. https://hbr.org/2019/12/the-aitransparency-paradox” 87 “Floridi L. & Cowls J. (2019). unified framework of five principles for AI in society. Harvard Data Science Review 1(1). https://doi.org/10.1162/99608f92.8cd550d1” 88 “Fjeld J. Achten N. Hilligoss H. Nagy A. & Srikumar M. (2020). Principled artificial intelligence: Mapping consensus in ethical and rights-based approaches to principles for AI. Berkman Klein Center for Internet & Society. https://cyber.harvard.edu/sites/default/files/2020-09/Principled-AI-Report-v3.pdf” 89 “Marda V. (2018). AI policy in India: framework for engaging the limits of data-driven decision-making. Philosophical Transactions of the Royal Society A: Mathematical Physical and Engineering Sciences 376(2133)

20180087. https://doi.org/10.1098/rsta.2018.0087”

90 “National Institution for Transforming India Aayog. (2018). National strategy for artificial intelligence. https://niti.gov.in/sites/default/files/2019-01/NationalStrategy-for-AI-Discussion-Paper.pdf” 91 “NITI Aayog & WIPO. (2021). Intellectual property rights and innovation in India: discussion paper. https://www.wipo.int/global_innovation_index/en/2021/papers/India_IPR_and_Innovation/”

2. Amend existing IP laws such as Copyright Act and Patents Act to clarify treatment of

AI-generated works and inventions.92

3. Consider establishing sui generis protection system for AI-generated works and

inventions tailored to specific needs of Indian context.93

4. Strengthen research exemptions and fair use provisions in IP laws to facilitate AI

development and training while protecting rights of IP holders.94

5. Promote international cooperation and actively participate in global discussions on

harmonizing AI and IP standards.95

6. Encourage collaboration between government industry academia and civil society to

address ethical concerns and develop best practices for responsible AI innovation.

7. Invest in capacity building and training programs to enhance understanding of AI's

impact on IP among policymakers judges and legal professionals.96 By adopting proactive and balanced approach to AI and IP law India can foster thriving AI ecosystem that promotes innovation creativity and public welfare while safeguarding rights of creators and inventors.

CONCLUSION

AND

RECOMMENDATIONS

The rapid evolution of AI technology has created new challenges for IP law globally. AIgenerated works are not human-made and thus traditional IP law is inadequate to address ownership issues in AI-generated works. Consequently India needs new legislation that 92 “Reddy T. P. & Tiwari S. (2022). AI and intellectual property law: analysis of copyright laws in India. Indian Journal of Intellectual Property Law 13 1-15. https://ijip. in/articles/artificial-intelligence-and-intellectualproperty-law-an-analysis-of-copyright-laws-in-india/” 93 “Verma A. & Chaudhary M. (2020). AI and copyright law: Issues and challenges. Journal of Intellectual Property Rights 25(2-3) 108-115. http://nopr. niscair. res. in/handle/123456789/54843” 94 “Reddy P. (2021). The future of copyright in AI-generated works in India: Examining the viability of exemptions and limitations.

Journal of Intellectual Property Rights 26(3) 149-157. http://nopr. niscair. res. in/handle/123456789/57265” 95 “Nag S. (2020). India's approach to the global debate on AI and intellectual property. Journal of World Intellectual Property 23(5-6) 565-581. https://doi. org/10. 1111/jwip. 12172” 96 “Kumar S. (2022). AI and intellectual property rights: Challenges and opportunities in India. Journal of World Intellectual Property. https://doi. org/10. 1111/jwip. 12234; Vaishnav A. & Bhattacharya S. (2022). AI and intellectual property rights: Implications for legal education in India. Indian Journal of Intellectual Property Law 25-42. https://ijip. in/articles/artificial-intelligence-and-intellectual-property-rights-implications-for-legaleducation-in-india/” expands definition of "person" to include AI-generated works to protect such works.

While conversation on patentability of AI-generated works is still ongoing WIPO's efforts indicate that international community is taking steps to protect these works. Lastly co-ownership and impact of AI technology on existing IP frameworks must be explored to facilitate further research on this topic. While development of AI has opened new possibilities for innovation it has also raised important questions surrounding how IP law should adapt to accommodate unique nature of AI-generated works. The researcher finds following suggestions useful to ensure that AIgenerated intellectual property can also be protected and patented under Indian law. A. Legal Framework for AI-generated Intellectual Property AI-generated works are created by algorithms and machines without involvement of human creators.

97 This presents unique challenge to traditional understanding of IP law that recognized human creator as person entitled to property rights. 98 India being common law country follows principle of authorship for copyright,99 which is essential for protection of original works. However this principle poses problem for AI-generated works as there is no human author involved. In India traditional IP law is inadequate to address ownership issue in AI-generated works. Currently law clearly states that patent and copyright can be granted to "person," which eliminates possibility of securing patents for AI-generated works. Thus creating need for new legislation to expand definition of "person" to include AI-generated works. B.

International Efforts to Address AI-generated Intellectual Property The World Intellectual Property Organization (WIPO) has recognized importance of addressing AI-generated intellectual property and has begun taking steps to protect these creations. WIPO has initiated project on "Intellectual Property and Artificial Intelligence" which examines impact of AI on IP law. 100 The project collaborates with academic institutions industries and other organizations to conduct research on various aspects of AI and IP law. Moreover WIPO has formed AI and IP Policy Network to establish common understanding of AI and IP issues

97 “Samuelson P. (2019) Property Rights for AI 70 Stanford Law Review Online 58-63.”

98 “World Intellectual Property Organization "Intellectual Property and Artificial Intelligence" (2019) https://www.wipo.int/pressroom/en/articles/2019/article_0007.html”

99 “Drahos P. (2017) Is Intellectual Property Rigged in the 21st Century 7 Eur. J. Risk Regul. 423”

100 “Copyright Act 1957 (India) §2(d).”

among member countries. 101 This policy network also functions as platform to discuss issues such as patentability of AI-generated works industrial designs supported by AI and computerassisted inventions. C. Proposed Future Directions One way to protect AI-generated works is for law to recognize "owner" of AI program which created work or algorithm. For instance US, UK and European Patent Office (EPO) have granted patents to AI algorithms owned by companies or organizations that created them. 102 As such law could consider according ownership to owner of AI algorithm or company. Similarly new legislation is needed that expands definition of "person" to include AI-generated works which would allow for patents to be granted on AI-generated works. Another approach would be to consider possibility of granting AI systems personhood status as has been proposed in Europe.

103 Such move would help create legal framework that enables AI systems to be legally liable and protect AI-generated works without addressing ownership issue. However it is unlikely to achieve widespread acceptance as it would have significant implications beyond IP law.

101 “World Intellectual Property Organization "Artificial Intelligence and IP Policy Network”

https://www.wipo.int/policy/en/ai/” 102 “WIPO Conversation on Intellectual Property and Artificial Intelligence” WIPO publication No. 1086E/2021. “European Parliament “Are we ready for AI that writes?” (2019) https://www.europarl.europa.eu/news/en/headlines/society/20190830STO60531”

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