Intellectual Property RightsThe Paradigm Shift in Intellectual Property in the Era of Artificial Intelligence

October 11, 20210


Artificial Intelligence (AI) is rapidly fueling key technological and commercial advances. It is used in a multitude of areas and influences practically every area of production. AI’s progress is being propelled by the availability of vast quantities of training data and breakthroughs in inexpensive high processing power.

The grant of Intellectual Property (IP) protection to AI-related inventions raises questions of inventorship and authorship under IP law. However, it is also important to consider the implications of the various rights that come with granting AI Intellectual Property Rights (IPR) which possess the elements of infringement.

AI is not only being used in social media and entertainment but it is also being used in retail and the possibilities of using the same in Health Care, Judicial systems, etc., are being researched on. The country has seen a tremendous transformation in technology and widespread penetration of the Internet in several daily aspects of our lives. The problems in a developing country like India are even more serious because of the fundamental infrastructure that has to be updated with every technological enhancement or invention.


When it comes to the regulation of IPR in AI, there are a few oddities. There exist problems with Patent and Copyright ownership, as well as significant worries about infringement difficulties and fines. AI has been overlapping with the purview of IPR, thereby raising a slew of legal and methodological challenges. IPR is a critical instrument for protecting innovation and ensuring a financial return on intellectual capital. In the said background, AI has added a new dimension.

Machine learning and deep learning have changed the face of technology without a doubt, and with such dynamics, new concerns are arising.

As per the current legislations, humans are considered to be the creator or infringer of any sort of work. This poses the question of how to assess the current state of AI use in the future. It has also prompted a slew of new responsibilities concerning AI-generated work. The challenges of ownership and economic profit in AI development while maintaining market equilibrium and fostering new ideas will continue to exist.

In the European case of Infopaq International A/S v. Danske Dagblades Forening, [2009] ECR I-6569 there was a Copyright infringement issue pertaining to the ‘Selfie-Taking Monkey’ in the United States. While discussing the case, the European Court of Justice interpreted existing laws and the usage of phrases like authorship and production to analyse and came to a judgement for the ownership of IPR. Because AI has such a massive data storage capacity, it may be exploited and misused in a variety of ways. As a result, a person’s ownership and obligation must be determined. IP is a possible solution to such confusing scenarios since it labels a creator’s ownership of work as well as his or her originality.


A copyright is a set of rights that are usually given to anyone who develops an original work of authorship, such as literary, theatrical, musical, and aesthetic works.

The Doctrine of Sweat of the Brow and the Doctrine of Modicum of Creativity are two essential concepts that describe the originality of work under the Copyright Act, 1957 (the Copyright Act). The philosophy allows for a minimal level of originality and under its ambit, AI’s original work may be included.

According to the Doctrine of Sweat of the Brow, the creator does not need to instill significant originality or innovation in their work in order for it to be eligible for a copyright; rather, the quantity of efforts and expenses involved in the work entitles the creator to the copyright.

Nevertheless, Under Section 2(d) of the Copyright Act, a copyright is granted to the original creator of the work. The concept of a device or software being protected under the Copyright Act is limited since the author under the Copyright Act is inferred to be a human or legal person. On the other hand, Section 13 of the Copyright Act may apply to original subject matter developed by AI.

The Doctrine of Modicum of Creativity stipulates that to obtain a copyright, a work must be unique in the sense that it was developed with sufficient intellectual creativity and judgment. The criterion of originality is not high, which is the most important condition that AI may be able to easily meet.

In the case of Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903), the Supreme Court of the United States distinguished between human and artificial creations. Justice Holmes stressed the importance of human nature in creating a copyrightable work i.e., nothing that was not a result of man’s imagination could be copyrighted.

It is worth noting that Section 17 of the Copyright Act adds to the difficulty of identifying the creator of an AI-generated work by granting copyright to the work’s first owner. The proviso to Section 17 stipulates that an owner may be a non-natural entity. This raises the question of whether the AI inventor is the “first owner” and the author of the AI work; or whether the proprietor or corporation that produced the AI is the author of the AI work; or whether the eventual user of the AI who harnessed the programme to produce the work is the author of the AI work.


A patent is a property right granted to an inventor. In exchange for a complete disclosure of the innovation, the inventor receives exclusive rights to the patented technique, design, or invention for a certain period of time.

Since India has a significant increase in patent applications owing to the blossoming of start-ups in the advancement of AI systems, large efforts should be placed on reconditioning Patent Law claiming AI creations to mount AI advances in India.

The term ‘invention’ under the Patent Act, 1970 (the Patent Act) specifies that a claim must acquire technical qualities, implying that a claim in the invention must solve the issue by grasping technological elements. Algorithms are specifically exempted from patentability in the United States and India since they are mathematical truths and formulae.

According to Section 3(k) of the Patents Act, computer programmes, mathematical formulas, and business procedures are deemed non-patentable innovations in the Indian Patent system. As a result, to obtain a Patent protection under the Patent Act, software patent eligibility must be combined with hardware elements and operating technique.

Furthermore, the phrases “patentee” and “person interested” in Section 2 (p) and 2 (t) of the Patent Act present a barrier to AI being included in its scope. The Patent Act expressly excludes any other individual who is interested in becoming human as a patentee.

AI-enabled systems are developing new outputs that are far beyond the comprehension of their creators, which is a significant advancement, but it also creates problems under Patent Law. Like different innovations are based on the same algorithm or concept may infringe on the original owner’s rights. This develops into a significant problem and deter start-ups from becoming original and inventive so undermining the very objective and function of the Patent.


Any term, name, symbol, logo or pattern, or any combinations thereof, being used in business to identify and differentiate the goods of one producer from those of others, as well as to designate the source of the products, is referred to as a trademark. It gives a product or service a distinctive style in the marketplace, and they may be used on both products and services.

It is indeed hard to know how AI might infringe on a brand, and difficulties such as patent and copyright difficulties may develop. It is mostly infringed in online markets since the purchase process is influenced by the consumer’s knowledge and who, or rather what makes the purchase choice. Consumers’ access to information and purchase decisions are influenced by AI.

In the matter of Google France v. Louis Vuitton (C-236/08), there had been a dispute about keyword advertising and Google’s computerized selections that were believed to be infringing on Louis Vuitton’s Trademark. The European Court of Justice, however, decided that there is no infringement unless the party involved actively participated in it.

The arrival of AI applications has resulted in the return to the traditional style of purchasing, with some significant modifications. In trademark infringement actions and liability difficulties, AI applications have significant ramifications for who is deemed as a customer.


In the sector of IP, AI plays a significant role. AI is employed in a variety of IPR fields, including search and analytics, drafting, and patent protection. Worldwide competition and significant investment in research and development have been defined by the transformation of community wealth from physical ownership to non-physical possessions such as patents and trademarks.

Computer and technology are evolving with every passing day and in the light of the same, AI revolution has penetrated almost every sector and businesses across the world. AI tends to benefit practically every activity and area. Its effect may already be evident in everyday applications such as transportation, health, finance, law, and other fields. The increased need for processing and organizing massive amounts of data necessitates the application of AI. It does, however, provide several difficulties.

With the advancement of technology, even with international accords and conventions in place, there is no clarity on the law. Many challenges might arise when AI fails due to misunderstanding or confusion. The current system and regulations are not compatible with the future and even current technological dynamism.

Given the rapid use of AI in important applications, appropriate legislation must be enacted in India. The rules governing trademarks, copyright, and patents must all be reconsidered in light of AI’s growing and rapid application.

– Team AMLEGALS, assisted by Mr. Gaurav Asati (Intern)

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