Author : MAHASWETAA R Law Student at CHETTINAD SCHOOL OF LAW

Edited By: Naman Jain Law student at Galgotias University

1. INTRODUCTION

With the dynamic change in the technological aspect of our country, AI tools have become more capable of creating content, art music etc. These works are depicted as if humans originally made them. The creator of the work uses both the AI tools and his mind where the question arises of who should get these rights of owning the Intellectual property rights. Copyright protection is usually given to only human-made creations. But when AI tools are involved in the creation, it becomes difficult to determine who deserves to get the ownership, whether it’s the creator of AI-Tool, the author or the AI itself or whether these creations deserve IP protection or not is still unanswered. Technological advancements are growing in our country and this matter is still in debate. In this article, we’re going to study this in detail.

Keywords (Minimum 5): Intellectual Property, Right of IP Owner, AI Content, Copyright,

1. SUB-HEADINGS

   Defining AI-Generated Content: What Constitutes AI-Made Content?

Artificial intelligence refers to machines that possess intelligence and idea-generation skills similar to the human intellect minds. It also has the power to solve and generate unique and reasonable solutions to problems and works beyond the power of the human brain. AI can generate text, videos and photos and also can create animations by processing the algorithms given and producing the output. ChatGPT and DALL-E are famous AI creations.

• AI-generated content makes use of artificial intelligence, either wholly or partly, which gives the most prompt explanations or answers by responding to the questions asked by humans. Humans use AI for writing assignments, articles blogs etc.
• There are 2 scenarios where it is said AI-made content:

1. When only an AI system is used wholly to create content,
2. Where AI is partly used i.e., Content created by using AI tools along with human-mind
3. Copyright protection and AI-generated content

• First of all, copyright protection is giving credit to the creator of the work and that creator must be a human which is provided under the Copyright Act, 1957. It is the humans who get all these rights like distribution, performance reproduction rights etc.
• These are traditional copyright laws that had the thought that only humans can be creative and they use their minds to write literature, music, journalism, dramatic content etc i.e., the subjects that come under section 2 of Copyright Act, 1957. But as technology is developing as years pass by, AI’s are more capable of doing all this creative stuff that makes it look human-made.
• When it comes to copyright protection, the originality of work is checked, but when there are AI-generated works it is difficult to determine the originality. Also, if the content or music or literature is fully made by AI, then why should the creator of the work i.e., humans, should be getting the copyright protection in the first place? Even if the AI tools are partly involved in the creation of something, should the author i.e., humans be getting all the copyright protection or is it the creator of AI, who’ll be getting the same is a huge question here. As AI, itself cannot be recognised as a person, is it fair that people using AI in order to create something and gain ownership and authorship is acceptable or not should be answered?

3. Trademarks and AI-Generated Branding

• Trademarks are basically, logos, phrases and other brand elements that help in distinguishing from one brand to another. These are basically used in marketing. To register a trademark, it should be unique and a distinctiveness feature must be fulfilled, which is basically a creation of humans.
• Now that, there are AI technologies which can create unique logos and slogans, which help in deciding the brand names or logos in a fraction of a second, there lack of human mind. This might land in a complexity in future. AI-generated logos must be carefully regulated in order to avoid legal issues. Every time, AI tools can’t provide us with a unique and distinctive feature that doesn’t look similar to other brands. That part should be taken care of.
• Deciding the ownership of such AI-generated logos or slogans is in question. But then it can registered if the logos or slogan can show its distinctiveness.

4. Patent and AI-generating inventions

• A patentis an element, in the realm of intellectual property law that represents a type of right granted by the government to inventors. This grant gives them rights to use, manufacture and market their innovations for a period of around 20 years. Patents play a role in safeguarding creators’ concepts and breakthroughs allowing them to benefit from their
• The three primary categories of patents include Utility,design and plant patents. The scope of patent protection is confined to regions limiting its enforceability to the country where it is granted. To secure protection, for inventions patent applications must be submitted in each desired country or region.
• Foran innovation to be eligible for patent protection, it has to satisfy certain conditions like statutory, new, non-obvious and useful. AI is likely to satisfy such  When it comes to the innovation process, AI plays multifarious roles in the innovation process from aiding the inventor in the innovation process to bringing up new ideas on its own.
• When using AI systems in invention, it is important that there are clear agreements stating what role each party is playing in relation to intellectual property ownership and modes of collaboration so that there will be no disputes about AI-generated works’ patents. AI-generated works may be patented but this has some legal challenges and controversies especially when considering attribution of rights and inventorship. The best way forward regarding these issues remains arguable since they are always evolving in this space.

Example:

• India gave co-authorship to the AI in an AI-generated work.AI RAGHAV is an intelligent graphics and art visualizer. The AI got its name from Raghav Gupta who is the creator but the owner of the AI is Sahni who asked to invent that app. For this AI India gave patent rights for both Sahni and AI. Raghav became the author and Sahni and AI RAGHAV became the co-authors of the invention.

5. Challenges in enforcing IPR on AI-Generated Content

There are various challenges involved in enforcing IPR on AI-generated content. They are as follows:

• The data that AI uses are already in existence and it would be difficult to give justice to the originality, uniqueness and novelty which are important factors used for deciding while giving IP Protection
• There is confusion in deciding the owner and author of the creation.
• AI cannot be treated as a “human” and give them rights because if there’s any case of infringement, there’ll be no one liable for the wrong act.
• Innovations in AI Technologies and protecting the rights of the human creation must go hand in hand. Keeping the balance between them is a huge challenge.
• There are various legal and ethical issues as well to consider.

6. International Perspectives on AI-Generated Content and IPR
7. Status Of Copyright Protection for Generated Works In Different Countries:

• The issue of copyright protection for AI-generated works arose in the case of Kristina Kashtanova who filed an application for the comic book, “Zarya Of The Dawn” and here the US Copyright Office rejected the application and does not give copyright protection for this AI-generated work stating that the author has only used the AI to create the images and it also stated that AI-generated works would not get copyright protection under USCO as it lacks the human authorship.
• In the UK, the UK Intellectual Property Office stated that AI-generated works also get copyright protection as human-generated works as the UK government aimed to make the UK a leader in AI. But this decision is under review process which may either continue further or pass off after the decision of the government.
• The copyright protection for an AI-generated work isnot entertained by the copyright office of India but the copyright protection is given in India for the first time for an AI The Next Rembrandt. A painting was found for which Rembrandt is the artist. That painting is said to be an addition to his paintings in The Rembrandt Museum. ING, an international banking group which is partnered with Microsoft and the Rembrandt house museum created an algorithm to recreate the style of Rembrandt. This recreation painting was done by the AI using the data fed to them without the interference of any human contribution. So it is copyrighted and has protection under IPR.

1. Status Of Patent Protection for Generated Works In Different Countries:

• The patent protection granted to works made by AI varies throughout countries due to differences in legal frameworks, interpretations, and the dynamic nature of AI technology.
• AI-generated innovations have been granted patents in the US by the US Patent and Trademark Office (USPTO). AI-generated creations are typically recognised as patentable under US law, so long as they satisfy the requirements. On the other hand, the question of who owns and who is the creator of inventions produced by AI is still up for dispute in court.
• The innovationscreated by artificial intelligence are granted patents by the  European Patent Office (EPO) if the conditions mentioned in rulings of the European Patent Office are satisfied such as new, statutory, non-obvious and industrial
• even thoughthe legal and regulatory framework in Canada does not separately and clearly deal with patent protection for AI-created works, patent rights have been granted by the Canadian Intellectual Property Office(CIPO) for AI-created technologies. however, in order to know the patent protection status for AI-created technologies clearly, amendments to patent law or rulings should be made by the Canadian
• South Africa is the first country to give patents to AI-generated work. AI DABUS is a device for the Autonomous Bootstrapping of Unified Science. Stephen Thaler is the creator of this DABUS. The creator states that DABUS invented an emergency warning light and food containerthat increases the grip and the transfer of heat. As the AI invents things on its own by the given input without human interference South Africa gave patent rights to DABUS.

9. CASE LAWS:

• Naruto vs. Slater[1]

This is a case where a monkey took selfies and PETA claimed copyrights for it. The court held that animals cannot own copyright, only a human being can hold copyright.

• Lush vs Amazon[2]

In this instance, it was determined that Amazon had violated Lush’s trademark. On Google, Amazon placed a bid for the keyword “Lush.” People looking for “Lush” were redirected to Amazon as a result. Genuine Lush items were not available on Amazon. Because similar products were recommended by Amazon’s AI system, the court found that Amazon was liable for infringement.

1. CONCLUSION & COMMENTS

There are cases where IP protection is given for AI-generated works. But definitely, certain amendments must be made especially in the Copyrights Act and Patent Act where AI tools are mostly used. How much of AI is used should be considered.

The ownership of the creation is still in debate. In my opinion, AI cannot be given protection and rights as it’ll be a problem when it comes to infringement. but isn’t it unfair to wholly give protection to humans when some of the content is AI-generated is still the question in my mind? When it is wholly based on AI-generated content, then IP protection must not be given.

For a fact, AI cannot be avoided, as the future is fully based on these technological advancements. So AI-generated content or creation can be protected when the human mind is also involved provided that all the criteria of intellectual property are fulfilled.

1. REFERENCES
2. Online Articles / Sources Referred
   1. https://www.iiprd.com/ai-generated-art-and-its-conflict-with-ipr/
   2. https://blog.ipleaders.in/
   3. https://www.legalserviceindia.com/
3. Cases Referred
   1. Naruto vs Slater
   2. Lush vs amazon
4. Statutes Referred
   1. Copyrights Act, 1957
   2. Patent Act, 1970
   3. Trademark Act, 1999

[1] 2018, 9^th Cir.

[2] 2014, (EWHC) 181 (CH)