AI’s disruption in IP and evolution of jurisprudence so far

Intellectual property (IP) laws have, until now, in the absence of artificial intelligence (AI), considered IP as the creation of human intellect. This foundation has been disturbed by the recent explosion in AI, which has seen the creation of IP from the “intelligence” of software. IP regulation was sparse and localised when IP was gaining recognition. Understanding this need, countries came together and agreed on a minimum standard of IP protection by establishing the World Intellectual Property Organisation and executing the Trade-Related Aspects of Intellectual Property Rights agreement. IP laws were introduced across the world to incentivise creators by arming them with ownership, economic rights and a period of protection to enjoy a monopoly over their “property”.

Today, AI has advanced to a level where it is capable of self-learning and creating original art, stories, code, royalty-free music, etc. ChatGPT, an OpenAI-tool, can compose a poem about collagen in Shakespearean style within seconds, by studying information fed into it about collagen and Shakespeare’s writing. When asked if the poem is copied, ChatGPT confirms originality, clarifying that while it may contain some elements similar to existing works, its content is original and unique to each user’s specific request.

On ownership, ChatGPT says “As an AI tool I do not claim ownership of any content I generate. The text I produce is not protected by copyright laws and can be used freely without attribution.” Interestingly in contradiction, OpenAI’s terms state that ownership vests with OpenAI on creation and is then transferred to the user. Some AI tools claim ownership of creations generated by them.

The fundamental issue here is the non-recognition of IP in AI works like ChatGPT’s poem, as it is not authored by a natural person. IP laws do not recognise AI as being capable of authorship and invention.

Besides causing disruption to IP norms, the lack of protection for AI creations is likely to lead to misuse and ethical issues if humans/companies wrongfully protect and monetise AI creations as their IP. There are presently no clear answers to evident questions about authorship, ownership and protection of AI creations. As lawmakers attempt to provision for AI, adjudicating bodies are simultaneously being tasked with addressing novel issues around AI creations.

Consequently, jurisprudence is developing inconsistently. Japan, Canada, the EU and India have acknowledged the need for AI and IP legislation. Chinese and Italian courts have expressed that if human creativity has played a part, the use of AI tools to create works will not disentitle the human author from IP protection. US and Indian copyright offices have refused registration of works naming AI tools as authors or co-authors, whereas Canada’s copyright office granted registration to an artwork naming an AI tool as a co-author. Although rejected by EU, UK, NZ, Australian and US offices, South Africa’s patent office granted DABUS, an AI system, a patent as an “inventor” for its creations.

Indisputably, AI itself is the result of human creativity. AI creations have however, sparked a debate with opposing views as to whether they constitute IP. One is, as there is always some level of human intervention behind them, AI creations are a result of human intellect. Another is that AI creations can only be products of information fed into AI systems by humans, are incapable of meeting the “modicum of creativity” requirement and cannot be original. An alternate view is that advanced AI tools use existing information only for analysis and machine-learning and create entirely new AI creations with miniscule human involvement, which warrant protection.

Whichever view one subscribes to, an unregulated space is always replete with unanswered questions. Who should own AI creations, the person who created the AI tool, the AI tool’s user whose prompts generate AI creations or the AI tool itself? Wouldn’t ownership of AI creations contradict the fundamentals of IP laws? Is it ethical for humans to own or reap the benefits of AI creations, even with minimal creative involvement? Who owns AI creations generated without human involvement? Do AI tools need ownership when they aren’t even capable of exercising rights as IP owners?

We find ourselves in a similar situation as before when IP needed regulation. Left unattended, jurisprudence will continue to develop inconsistently unless countries come together once again and formulate a global framework to regulate AI creations.

Meghana Chandorkar is a partner and Chandana Arval is a senior associate at TMT Law Practice.