Embracing Artificial Intelligence in Intellectual Property: Challenges and Prospects

ABSTRACT

The constantly changing world of technology has brought Artificial Intelligence (AI) to the forefront, transforming industries and society as a whole. As AI progresses, its impact on intellectual property (IP) is becoming more significant. AI has become a powerful tool for innovation, significantly simplifying the creative process in areas such as software development, drug discovery, and content creation. This brings up crucial questions about ownership, inventorship and the legal framework surrounding AI-generated works as traditional notions of authorship are put to the test. This necessitates legal adaptations to accommodate the unique challenges posed by non-human creators.

Additionally, the increased use of AI in content creation has led to complex copyright issues, as it has become challenging to differentiate between original works and derivative works. This article aims to explore AI’s multifaceted impact on intellectual property, along with the challenges and opportunities that arise in this digital era.

Introduction

Artificial Intelligence is a field that combines engineering and science to create computer systems that can make decisions and solve problems without human intervention. It involves the use of algorithms and commands to enable machines to perform tasks that typically require human intelligence. The term “AI” was first introduced by John McCarthy during a conference in 1956.[1]

An example of AI in action is the recent launch of Microsoft’s Bing AI and ChatGPT, which is a natural language processing tool that can simulate human-like conversations, answer questions, conduct research, compose music, write documents, and even write lines of code. Mauritius was the first country to develop an AI strategy in Africa, followed by Egypt.[2] However, South Africa is currently leading the continent with the highest number of companies focused on AI, followed by Nigeria.[3]

Nigeria has been actively involved in the field of AI by establishing the first National Center for AI and Robotics in Africa and gearing up to roll out the National Policy on Artificial Intelligence.[4] The impact of AI is also being felt in the nation’s creative industries. For instance, in January 2023, designer and filmmaker Malik Afegbua was able to create a fashion show consisting of AI-generated images of older individuals.[5]

Artificial Intelligence (AI) is a rapidly developing field that has been revolutionized by technologies such as machine learning, natural language processing, and computer vision. These technologies have enabled AI systems to interact with humans through speech, text, and visual interfaces, and to learn from their experiences and improve their performance over time. The impact of AI on various industries is unprecedented, and it is driving significant developments in fields such as healthcare, transportation, and urban planning. For instance, in healthcare, AI is being used to develop personalized medicine by analyzing large amounts of patient data and identifying patterns that can help diagnose diseases and develop treatment plans.[6]

In transportation, AI is being used to develop autonomous vehicles that can improve safety, reduce congestion, and minimize environmental impact. In urban planning, AI is being used to develop smart cities that can improve the quality of life for inhabitants by optimizing energy consumption, reducing pollution, and enhancing public safety. Given the potential of AI to transform various industries, companies are investing heavily in AI research and development.

Protecting the intellectual property generated by these innovations has become a top priority, as it can provide a competitive advantage and ensure long-term sustainability. As a result, patents, trademarks, and copyrights are being used to safeguard AI innovations and prevent infringement by competitors.

Application of Artificial Intelligence to Intellectual Property

1. Patents

Patents are essential for protecting AI innovations. Companies and inventors can apply for patent protection for new algorithms, software implementations, and hardware configurations that are considered AI advancements. The patent system provides exclusivity, which allows inventors to recover their investments and encourages further innovation.

2. Copyrights

Copyright protection applies to the original manifestation of ideas in a physical form. In the world of AI, copyrights may protect source codes, datasets, and creative works such as music or art produced by AI algorithms. However, determining ownership and the extent of copyright protection for AI-generated works can be complicated, leading to legal questions about authorship and creativity.

3. Trade Secrets

In order to preserve their competitive edge, it’s not uncommon for companies to classify certain elements of their AI technology as trade secrets. This requires the safeguarding of confidential information to ensure its protection. As AI systems continue to evolve, it’s become all the more essential to safeguard proprietary algorithms, training data, and other crucial components.

The integration of AI into various industries has brought about numerous advantages and potential which include the ability to revolutionize many aspects of life, even in the universe of intellectual property. However, the advent of artificial intelligence technology has also presented a host of challenges and raised several issues within the intellectual property industry on creativity, innovation, and the protection of intellectual assets. Highlighted below are the prospects and challenges of AI on IP.

Impacts of Artificial on Intellectual Property: Emerging Prospects

1. Accelerated Innovation

AI is a driving force behind innovation, advancing various fields, facilitating research and development, and leading to the creation of novel products and services. This acceleration can contribute to economic growth and technological progress.

2. Enhanced Ip Protection Tools

AI-powered tools help protect intellectual property, with automated copyright enforcement and AI-driven patent analytics that enable IP professionals to safeguard intellectual assets more efficiently.

3. Data as a Strategic Asset

In today’s age of Artificial Intelligence, data has become a valuable resource. Organizations are recognizing the significance of data as a strategic asset, particularly in the field of intellectual property. Since companies rely on data for AI training and decision-making, they are likely to invest in data protection measures. This will foster a culture of responsible data management while also improving data privacy and cybersecurity. The recognition of data as a strategic asset requires a reevaluation of intellectual property strategies to include not only traditional intellectual property but also data-related assets.

4. Improved Trademark Enforcement

AI-powered tools are revolutionizing trademark and brand protection by analyzing online content and detecting potential infringements, enabling companies to safeguard their brand integrity more efficiently.

Artificial Intelligence and Intellectual Property: the Flip Side

1. Authorship and Ownership Ambiguity

The use of Artificial Intelligence (AI) to create artistic works independently raises questions about the ownership and authorship of such works.[7] While AI algorithms are capable of producing music, art, and literature, it is important to consider copyright ownership. Typically, copyright is vested initially in the author or “commissioner” of a work who is granted exclusive rights to that work.[8]

However, the involvement of AI raises the question of who owns the rights to a piece of art created by an AI system – the developer, the user, or the AI itself? A U.S. Court of Appeal for the Federal Circuit case, Thaler v. Vidal,[9] attempted to answer this question. In the ruling, AI did not qualify as a human and therefore could not be named as the inventor on a patent. Some AI research tools, such as OpenAI, have taken a step further to resolve this ambiguity by stating on their policy page that the company does not own the output of the program.[10]

2. Infringement of Intellectual Property

It is well-known that artificial intelligence machines can access all the information available on the internet, which means they might reproduce copyrighted material and infringe on someone’s intellectual property rights. In such situations, the person responsible for using the content without permission may face legal action, be required to remove the content, and possibly compensate the copyright or trademark holder. Countries like the US[11], South Korea, and Japan[12] have established copyright laws to protect publishers from copyright infringement by AI.

In 2020, Shein, a Chinese fast-fashion company, faced dozens of lawsuits alleging design theft. Stussy,[13] a streetwear company based in Irvine, California, filed a lawsuit in March 2021, claiming that Shein sold shirts and shoes with almost identical copies of its logo without permission. The lawsuit alleges trademark infringement, counterfeiting, dilution, and unfair competition.

3. Liability Challenges

In situations where artificial intelligence (AI) violates intellectual property (IP) rights, it can be challenging to determine who is liable for the infringement. Depending on the circumstances and the jurisdiction, the responsibility may rest with the creator of the AI program, the platform, or the content publisher.

If the AI-generated content contains plagiarized passages, uses a trademark without permission, or incorporates an artwork based on an image or other media taken by the AI creator without proper consent, then the creator of the AI algorithm might be held responsible. However, if the AI functions autonomously and learns to create beyond predictability, then the liability can fall upon the AI itself.[14]

4. Issues Related to Legislation

Many Intellectual Property laws do not have enough provisions to regulate the innovation created solely by an artificial intelligence machine. For example, the Nigerian Copyright Act lacks any provision regulating the interplay of AI on copyright. Therefore, lawmakers need to enact laws that determine which parties are entitled to such creations and recognized as the owners of Intellectual Property resulting from the use of artificial intelligence. It is recommended that every state recognizes the same boundaries and aspects for creating artificial intelligence and establishes legislation covering each country’s remedies and regulatory framework.

Conclusion

The impact of AI on intellectual property and how liability can be determined is an important issue that requires proper legislative measures. As society adapts to an AI-driven era, there is a complex interplay between opportunities and challenges. Therefore, it is crucial to address legal, ethical, and sociological considerations to ensure that innovation can flourish while protecting the rights of creators and innovators. Finding a reasonable balance will be key to unlocking the full potential of AI in a way that ensures adequate protection of IP rights.

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[1] Legal Specs Journal of Research and Legal Studies ‘AI’s Impact in IP Laws: Challenges and Solutions’ (2023) < here > accessed 3^rd December, 2023.

[2]  Chinwe Michael, “AI strategy: Nigeria in global hunt for its best minds” Business Day Nigeria, (2023) <here> Accessed 5^th December 2023.

[3] ibid

[4] Bolu Abiodun “AI in Nigeria has not even started crawling” – tech experts on the state of artificial intelligence in Nigeria” TechPoint Africa (July 19, 2023) <here/> Accessed 5^th December 2023.

[5] Gertrude Kitongo and Mark Tutton, “Nigerian AI artist creates a fashion show for elderly people” CNN (June 23, 2023)  <edition.cnn.com/sl> Accessed 5^th December, 2023.

[6] Alowais, S.A., Alghamdi, S.S., Alsuhebany, N. et al. “Revolutionizing healthcare: The role of artificial intelligence in clinical practice” BMC Med Education 23,  (2023) 689 < here > Accessed 20^th December, 2023.

[7] Keegan Caldwell,  “AI And Intellectual Property: Who Owns It, And What Does This Mean for The Future?” <here> Accessed 7^th December, 2023.

[8] Nigerian Copyright Act 2022, s 28.

[9] No. 21-2347 (Fed. Cir.)

^[10]  Reyes Ramirez “Artificial Intelligence Raises Questions On Intellectual Property And Ownership” Texas A&M Today (October 25, 2023) <here/> Accessed 7^th December, 2023.

[11] “Copyright laws and artificial intelligence ” American Bar Association ( December 2017) <here> Accessed 9^th December 2023.

[12] Seung Hoon Park,  “Copyright Issues for AI and Deep Learning Services: A Comparison of U.S., South Korean, and Japanese Law” (2021) Journal of Technology and Intellectual Property <here> Accessed 9^th December, 2023.

[13] Stussy, Inc v Shein et al 8 (2022) CV -00379-CJC-KES <here> Accessed 10^th December 2023.

[14] Vividh Jain, “Intellectual Property of an AI: Issues and Challenges” < here/ > accessed 22 December 2023

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