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Review of the Intellectual Property Rights Regime in India: Artificial Intelligence and Intellectual Property

Review of the Intellectual Property Rights Regime in India: Artificial Intelligence and Intellectual Property

The Parliamentary Committee Report tabled in July 2021 made several recommendations regarding the Intellectual Property (IP) regime in India. The suggestions made regarding amendments to the Patents Act have been discussed in our Newsletter 30.

As we know, Artificial Intelligence (AI) mainly aims to develop systems and mechanisms with the ability to perform the tasks requiring human intelligence. It refers to machines and technologies capable of performing cognitive tasks like thinking, perceiving, learning, problem solving and decision making. AI based programs can now compose music, draw paintings, write literature, conceive inventions and automate, speed up and ease day-to-day tasks for humans. Evolution of AI and its expansion as well as its utility in a growing number of fields has increased exponentially in present days.

The Committee also discussed the economic impact of AI, and referred to the 2021 Accenture research report which stated that the benefits from AI related innovations, if drawn in an optimal manner, would add USD 957 billion by 2035 to the Indian economy. However, in order to extract benefits from AI, revisiting IPR legislations and implementing a strong IPR framework is desirable.

The Report rightly observes that the present patent and copyright legislations are not adequate to facilitate recognition of inventorship, authorship and ownership by Artificial Intelligence. According to Section 3(k) of the Patent Act, a mathematical or business method or a computer programme or algorithms run by AI are not patentable. Further, the condition to have a human inventor for innovating computer related inventions (innovations by AI and machine learning) hinders the patenting of AI induced innovations in India. Therefore, there is a need to review the provisions of both the legislations on a priority basis.

During the deliberations with relevant stakeholders, the Committee was informed that the protection of both AI-generated works and AI solutions should be permitted under patent laws of India as it would incentivize innovation and R&D thereby significantly contributing to creativity and economic growth of the country. It was informed that rendering protection to works generated by AI either autonomously or with the assistance and inputs of a human being would incentivize and encourage the creator of the AI which in turn would further encourage creativity and development of more AI solutions.

The recommendation regarding ownership and invention is significant and has far reaching implications not just in IP jurisprudence but also in legal principles surrounding concepts of personhood, rights, and liabilities. The discussion regarding granting legal personhood to AI has been alive in the recent past due to the recognition of DABUS as an inventor and closer home, the recognition of an AI as a co-author in an artistic work. A previous issue of the LexCampus Newsletter too, had discussed this important question.

The Committee notes that the relevance and utility of cutting edge technologies such as Artificial Intelligence (AI) and machine learning would increase manifold in the present world especially in the times of the ongoing Covid-19 pandemic wherein the digital applications are playing a crucial role in responding to the crisis. Moreover, the huge benefits of AI and its applications in India’s revenue generation and economy as well as its impact on technological innovation necessitate its expansion in a secured manner. In view of this, the Committee recommends that a separate category of rights for AI and AI related inventions and solutions should be created for their protection as IPRs. It further recommends that the Department should make efforts in reviewing the existing legislations of The Patents Act, 1970 and Copyright Act, 1957 to incorporate the emerging technologies of AI and AI related inventions in their ambit.

The Committee was informed that a framework needs to be developed for patenting of algorithms by associating their use to a tangible result. For example, under the AI guidelines of European Patent Office, abstract mathematical methods cannot be patented. However, it is patented if the mathematical method involves the use of technical means or a device such as computers. Also, linking the mathematical applications and algorithms to practical applications makes them a process which could be patented as being practiced in the US.

The Committee recommends the Department that the approach in linking the mathematical methods or algorithms to a tangible technical device or a practical application should be adopted in India for facilitating their patents as being done in E.U. and U.S. Hence, the conversion of mathematical methods and algorithms to a process in this way would make it easier to protect them as patents.

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