Today we use many services or products even without noticing that these are Artificial Intelligence (AI) generated, as for example, auto pilot system in airplanes, spam filters in emails, plagiarism checker softwares, etc. AI-driven world is becoming relevant because it can generate data and write news, paint pictures, assess marketing policy and what not.
However, the question of ownership over a product generated by AI comes when it can produce something which falls within the definition of Intellectual Property (IP). Still AI has got no legal status irrespective of its “intelligence” feature under the IP law. In order to find out the scope of AI to claim IP law protection, the primary question is whether AI has intelligence to create something which could be addressed as “creation of mind”.
AI, as it is now, is not a single man's work. At least eight types of contributors have developed AI system. These contributors are often regarded as stakeholders. These stakeholders are: the software programmers, data suppliers, the trainers/feedback suppliers, the new employers of other players, the operators of the systems, the users, the Government, the investor(s). But can every one claim his or her ownership on the AI-generated products? The claim of such ownership under the principles of copyright and patent law deserves discussion.
An AI can produce something which will satisfy all the three criteria of copyright, namely: creativity though a minimum amount, fixation, and originality. But none of the legal systems over the world does permit an AI to get copyright over its work and the same is true for patent.
The IP is a creation of mind. Necessarily, the word “mind” used here means a mind of human being. Except human being, no one can claim the protection or ownership under IP law irrespective of its intelligence. Even a non-human having, a so-called, mind has no capacity to claim ownership under IP law.
In 2018, the Ninth Circuit of USA held in case of Naruto et al v David Slater that animals, other than humans, cannot sue for copyright. From the judgment, it is clear that the US legal system allowed only human to get protection under IP laws. Moreover, the countries who are members of WIPO enact law under which a non-human cannot get the protection of IP law.
Under these circumstances, who is the owner of IP generated by AI? The answer is difficult considering its multiplayer model. To understand whether AI can get the ownership over the products generated thereby requires more analysis of the IP law under “law and economics theory”, “the personality theory” and “Locke's theory on labour”.
As per law and economics theory, AI cannot claim ownership under IP law, mainly for the reason that an AI system does not have the capacity to receive such incentive that creators and inventors are entitled to as exclusive rights to their intellectual products by preventing others from using their goods without permission or payment.
Hegel, the proponent of personality theory, argues that property rights are a means for developing and realising one's personality. He also argues that “an idea belongs to its creator because the idea is a manifestation of that creator's personality.” AI also fails to manifest its personality without its creator who happens to be a human being.
In the opinion of John Locke, the proponent of labour theory, “the labour of his body and the work of his own hands, we may say, are properly his.” Under this theory, all the persons who are involved with AI have capacity to be remunerated as per their contributions. Thus, the scope of ownership in favour of AI remains as narrow as possible.
Therefore, it may be said that the AI system has no scope to get ownership over the products which it generates. If so, then who will get the ownership? In a multiplayer model, every stakeholder making an AI to work has the scope to claim the ownership over the contribution he or she makes. But the ownership over the final products generated by AI depends upon the legal framework of the particular State under which jurisdiction it falls.
The writer is an Advocate, Supreme Court of Bangladesh.