Humans by their very nature are capable of decision-making, adaptive learning, creative
output, problem solving, and many other cognitive functions. By virtue of this very fact,
they create and innovate using their human intellect, and the same is duly granted protection
under the Intellectual Property Laws in the form of Copyrights, Trademarks, Patents, etc.
Now imagine, if a machine is capable of replicating this human behaviour and think
critically, make decisions, and increase productivity for humans, now that is Artificial
Intelligence (“AI”) for us. The amalgamation of AI and Intellectual Property Rights (“IPR”)
unveils a realm of unexplored possibilities. IPR is gaining prominence in the current
knowledge-driven economy, and it encompasses AI since both are intangible results of
human creativity. As AI’s integration deepens for ground-breaking inventions, creative
works, and distinct brand identities, questions concerning the protection of IPR in the realm
of AI gain prominence. This article explores the intricate nexus between AI and IPR, delving
into patents, copyright, trademarks, and the legal challenges that arise in their application.
PATENTS AND AI
Patents play a vital role in safeguarding novel inventions, encouraging progress and
promoting innovation. Section 2 (p) of the Indian Patents Act, 1970 mentions the words
“patentee” and “person interested” which creates a clear restriction to AI being included in its
scope. The Act explicitly restricts anyone other than a human from being recognized as a
patentee. Some issues which can arise in the current framework are that AI-generated ideas
might fail to meet the legal standards for patentability, such as the requirements for
enablement or non-obviousness. Determining non-obviousness often involves human
judgment, making it challenging for an AI system to assess the novelty of an idea.
In 2021, South Africa became the first country to issue a patent designating an AI Tool –
DABUS – as the inventor.
COPYRIGHT AND AI
Copyright law is designed to safeguard original works of authorship. Section 2(d) of The
Copyright Act, 1957 defines the term ‘author’. It states that in relation to any literary,
dramatic, musical or artistic work which is computer-generated, an author is the person who
causes the work to be created. Therefore, for ownership of any copyrighted work, the person
should fall under the domain of an “author”. This bars the AI from owning any authorship
because they are generally not regarded as a legal person. This raises significant complexities
regarding AI’s role in authorship and ownership, especially considering their ability to
generate creative and original content.
Fort the first time ever, the Indian Copyright Office has recognized an AI tool – RAGHAV as
the co-author of an artwork as shown below, but later sent a withdrawal notice of the co-
authorship, indicating that they mistakenly granted the registration, making it a controversial
The above image is the artwork named ‘SURYAST’ created by AI – RAGHAV.
TRADEMARK AND AI
A ‘trademark’ is a recognizable symbol of a trade or business, primarily designed to establish
a connection between branding and consumer purchasing behaviour. However, with the
increasing integration of AI in the online market, certain traditional trademark concepts may
become less significant such as “imperfect recollection,” “confusion,” and the comparison of
trademarks based on their aural, conceptual, and visible impact. The reason is that AI has led
to a reduction in product choices for individual consumers, as e-commerce platforms now
utilize AI algorithms to recommend products based on customers’ search behaviour,
demographics, preferences, and past purchases.
For example, the Indian eyewear retail chain “Lenskart” uses AI to scan a consumer’s face,
and generate eyewear recommendations based on the shape of their face.
INDIAN LAWS WITH RESPECT OF INLCUSION OF AI IN IPR
As seen above, the current IPR laws are crafted in a manner that restricts IPR ownership to
legal entities which includes humans or organizations consisting of humans in India. The
convergence of AI and intellectual property necessitates a careful reassessment of existing
legal frameworks to accommodate the unique characteristics of AI. Currently, courts are
interpreting the issues surrounding AI and IP, but there is a pressing need for well-defined
and structured rules and regulations in this area. Policymakers must strive to strike a balance
that fosters AI innovation while also protecting IPR. This entails designing patent laws that
encompass AI-generated innovations, redefining authorship and ownership within copyright
law, and ensuring trademark protection to preserve distinct brand identities.
The use of AI by artists and the general public is poised to witness significant growth due to
the increasing power and autonomy of AI systems. This trend blurs the distinction between
works created by humans and those generated by AI. Implementing IPR in the context of AI,
with proper procedures and safety measures, poses a real problem. Moreover, understanding
the various features of AI becomes even more challenging, especially in developing countries
like India, which are undergoing rapid technological changes.
Successfully navigating the AI-IPR landscape requires an adaptable and forward-thinking
approach. It is essential to find a balancing coexistence between AI and IPR to harness the
full potential of AI as a powerful tool for human creativity, promoting innovation, and
enhancing our lives. By addressing these challenges effectively, society can move towards a
future where AI becomes a valuable asset in driving progress and enriching various aspects of