Artificial Intelligence [“AI”] has seeped into the lives of individuals in uncanny and unimaginable ways. Starting from the choices made by individuals for determining their purchasing power to actually making decisions on behalf of them, AI has evolved to disrupt the existing features of the trade mark framework. A trade mark is a sign that distinguishes a product or brand from other goods of the same nature. The unique nature is provided through smell, taste, imagery, or visual content. The trade mark law has evolved and developed to protect the rights of manufacturers and to encourage exploration in a specific field. Since, trade mark law does not authoritatively govern the rights of ownership and advancement, the effect of AI on the system has not yet been adverse. However, AI has started showing results of a disruptive and revolutionary wave in the field of trade mark law.
While many people around the world fear that once Artificial Intelligence (AI) is fully developed, robots will take over human jobs, no one is sure to put the “writer” at the top of the list of AI jobs. But now that a Japanese AI Program has co-authored a short novel that has passed the first round of selection for a national literary award, no profession seems to be certain.
This article aims to provide insight into the increasing ambit of trade mark, copyright, and AI, as well as the inevitable difficulties that this brings from a global perspective, and to offer alternative solutions. This article will also conduct a comparative examination of the existing legal system.
Interface between AI and Trade mark Law
The trade mark law is based on human perception, and with the introduction of AI, the system transforms into a statistically driven choice. Interfaces like Amazon and Flipkart with the help of bots, keep a track of the consumer’s past items and suggest similar items based on price, location, and style quotients. The action hampers the decision-making power of individuals. Voice assistants like Alexa, Siri, Watson, automatically may add an item to the cart soon after it is on the verge of running out of stock. Interfaces like ‘Pepper’ take a step further to understand human mood, actions, and emotion and accordingly make the purchase for the consumer. The emphasis and the pre-disposed command fed into the AI system, automatically make the product choice, based on efficiency, delivery time, consumability, and economical conditions. AI makes choices of products based on their viability instead of their distinctiveness. Since the decisions by AI are made on viability rather than distinctiveness, the popularity of phonetic, visual, and olfactory trade marks has been seriously affected.
The trade mark law is based on the facets of ‘human ability’, ‘frailty’ and ‘likelihood and confusion’ of the natural consumer. Thus, giving rise to the concept of average internet consumer concept laid down in the Google France SARL and Google Inc. v Louis Vuitton Malletier and Google France SARL v Interflora Inc v Marks and Spencer cases. An average internet consumer has been equated to an average consumer, with the catch of maximum decisions being subconsciously handled by AI.
The newly introduced interface surpasses the concept of trade mark law. The case of Amazon v Lush, is the most prominent example of AI disrupting the trade mark law. Amazon bought the word ‘Lush’ through a bidding process. This led to a situation, whenever Lush was searched on Google or the Amazon website, the server redirected to show products similar to Lush instead of original Lush products. The Court held the practice contradictory to the trade mark law and thus expressed concerns on the subject of trademark infringement by AI institutions. On the other hand, the Courts at the current stand have protected AI interfaces from judicial actions for trade mark infringement. In L’Oréal v eBay, Coty v Amazon cases, the Court protected the AI websites, providing the reason that unless the interfaces are directly involved in counterfeiting exercises they cannot be held liable for trade mark infringement. Thus, AI has also been changing the perspective of the average consumer doctrine.
Trade mark Infringement through AI interfaces is still at nascent stages. AI affects consumer decisions but has not yet become the consumer of products. Thus, the trade mark Laws around the world, need to revamp themselves to accommodate the varying factors of viability and recognition according to AI.
AI and Copyright Law
With the world progressively shifting towards stronger AI technologies, the question of who is the author of the works created by AI remains on surface. AI has also produced music like Amper Music and IBM’s Watson Beat. Most of them use deep learning networks. The music created is completely original, created with little or no user input. It is obvious that music created by AI or books written by AI should be protected by copyright but the ambiguity begins when deciding “to whom” the copyright should vest. For the AI to be eligible, it is imperative that the AI be a legal entity.
The UK Parliament created a category of “Computer Generated Works” under the Copyright, Designs and Patents Act 1988 (the “CDPA”); in which there is no human author of the work. It was the “first legislation which covered the scope of AI on copyright. Section 9(3) CDPA provides that the author of a computer-generated LDMA (literary, dramatic, musical or artistic) work, “shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.
Denial of copyright to AI machine developers and owners reduces their incentives to develop new AI software and may ultimately result in less copyrighted work generated by AI and a significant decrease in the primary domain of publicly accessible works. As a result, it becomes clear that the immediate release of AI works to the public, in contrast to a certain period of copyright protection, significantly reduces incentives for creativity and is counterproductive for AI development.
In People ex rel Nonhuman Rights Project, Inc v. Lavery, the Court held that a chimpanzee was not a ‘person’ entitled to the rights and protections afforded by the writs of habeas corpus because animals, unlike human persons, corporations and municipal entities could not bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions; the incapability to bear any legal responsibilities and societal duties rendered it inappropriate to confer upon chimpanzees legal rights. Following this precedent, in Matter of Nonhuman Rights Project, Inc v. Stanley the Court ruled that ascribing legal personhood to chimpanzees is inappropriate as they are incapable of bearing any legal responsibilities and societal duties.
An analogy can be drawn here between animals and AIs as non-human authors and because of lack of capacity to hold rights and duties neither of them can be considered as authors for the purpose of protectable works.
Even if the concept of non-human authors gets recognition in copyright law the bigger questions that arise here could be: who can claim and enforce the economic and moral rights of the non-human author? Who can assign and license the economic rights? How can an infringement suit be filed in a court of law in case of violation of copyright and who will be entitled to the remedies? Although we may be fast approaching a time when AIs achieve the status of legal personhood, that time is not yet here. Logically it can be inferred that the programmer of computer-generated software is the logical owner of the copyright in the works generated by their software.
In the case of Bleistein v. Donaldson Lithographing Co, Judge Holmes emphasised human nature as an important aspect in creating a copyrighted work. The Court noted in this regard that there was no place for anything that was not the product of human creativity to be protected by copyright. Even if countries agree to issue copyright to AI works, the question of who acquires these copyrights remains vague and uncertain. Because present legal status demands the existence of a legal personality of the rights holder, which an AI lacks, unless its author has this in his name. It is important to distinguish the works of a man from those of an artificially intelligent machine.
The UK laws provide that the inventor must be a human being, and the case’s Hearing Officer found that there was no statute that allowed the AI creator to transfer the title of the invention to the AI’s owner. He further stated that the AI’s inventor cannot claim credit for the invention made by the AI in the previous case. As a result, there are still a lot of uncertainties about this case.
Surprisingly, an artificially intelligent robot named SAM, which was developed by Arvid Jense and Marie Caye, is said to have its own bank account. This allows artificial intelligence to have a legal identity. AI is “more intelligent” than animals, more alive than idols and rivers, and can be represented both by individuals and by society. So, it looks like the AI should get the copyright to the work it creates.
AI and it’s possible Copyright regulation: Drawbacks of the current legal framework in India
There is currently no legal regime in India and abroad that answers the big question of “Who owns the IP rights to a product generated by an AI invention?” Humans are the only recognised creators, Intellectual Property [“IP”] holders, and IP infringers under the existing law. This leads to the question of how to ascertain the significance of AI in the future. The unique quality of AI is the ability to imitate. AI works on the principles to imbibe and acquire human intelligence. On one hand, the major strength of AI is the repeatability of results. On the other hand, IP revolves around exclusivity and unique content.
In the United States, for example, the Copyright Office has stated that it will “register an original authorship work, provided the work is made by humans.” It was held in the case of Feist Publications v. Rural Telephone Service Company, which states that copyright only protects “the fruits of intellectual labor” of human beings. In Europe, the Court of Justice of the European Union (CJEU) has also declared on several occasions, in particular in its landmark decision Infopaq International A / S v Danske Dagbaldes Forening, that copyright is only restricted to apply to original works, and this originality must reflect “the author’s own intellectual creation.” This is generally understood to mean that an original work must reflect the personality of the author, which necessarily means that a human author is required for a copyrighted work to exist.
However, there is no specific law or regulation that specifically regulates AI. Existing laws do not cover the realm of AI and are based on the old types of intellectual property such as books, creative writing, and discovery. The area of AI is much more complex and, unlike the existing regime, it needs to be addressed in a special way. Even today, computer programs, business techniques, and mathematical formulae are not recognised patentable inventions under the Patents Act of 1970.
Under the Copyright Law, there are two basic doctrines that define the originality of work under that law: Sweat-brow Doctrine and Modicum of Creativity. Since doctrine states that a minimum level of creativity is also acceptable, original AI work can be incorporated. However, copyright is transferred to the “author” of the work according to Section 2 (d) of the Copyright Act 1957. The author of this act has implied that he is a human or legal person, which limits the idea of a machine to be protected by this law.
The existing system and regulations are incompatible with future and even current technological developments. In a country with the world’s second-largest population, where the majority of people use social media sites and shop online, it’s critical that the laws be updated to cope up with the changing times.
In the words of Stephen Hawking, “AI is likely to be either the best or the worst thing to happen to humanity.” The tussle between Intellectual Property Rights and Artificial Intelligence acts as valid proof of the contention by Stephen Hawking. The opportunities of exploration created by AI are restricted by the existing system of IPR. Countries around the world have taken cognizance of the advancing scenario, and have been modifying the existing laws to accommodate AI as a legitimate owner and product for possessing Intellectual Property Rights. Countries like Singapore have been developing at an exponential rate to accept AI, at the same time, countries like India are still unclear on the provisions of Intellectual Property Rights concerning AI-generated works. The contrast among countries around the world displays the uneven and variable position on the dimension of AI and IPR. It would be an interesting and important development in the field of international legislation.
This article can be cited as:
Saloni Neema & Aditi Singh, The Interplay of Artificial Intelligence Technologies with Trade Marks and Copyright, Metacept- Communicating the Law, accessible at https://metacept.com/the-interplay-of-artificial-intelligence-technologies-with-trade-marks-and-copyright/