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Winter 2-9-2024

Intellectual Property Rights and Copyright Laws in the regime of

Artificial Intelligence (AI) in India
Hemavathy C
Chennai Dr. Ambedkar Government Law College, Pattarai Perumpudur, Tiruvallur - 631 203,
hemavathyjayamurugan@[Link]

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C, Hemavathy, "Intellectual Property Rights and Copyright Laws in the regime of Artificial Intelligence (AI)
in India" (2024). Library Philosophy and Practice (e-journal). 8089.
[Link]
 Intellectual Property Rights and Copyright Laws in the regime of
Artificial Intelligence (AI) in India
Hemavathy. C

Librarian

Chennai Dr. Ambedkar Government Law College, Pattarai Perumpudur, Tiruvallur – 631 203

hemavathyjayamurugan@[Link]

Abstract:

Artificial Intelligence (AI) has been developing for two decades. The application of AI is
budding quickly in business dealings, corporate communication and legal services. AI and Law
Forms are increasingly important in the legal arena as they play a significant role in the economy
and society. Scientists and policymakers together are facing some of the hardest problems with
the advancement of machine learning, cryptology and data protection. This paper is very helpful
for policymakers, economists, lawyers and technocrats in the aspect of the ethical use of AI in
data protection, privacy, security and social corners turns into very relevant issues to be
addressed.

Keywords: Artificial Intelligence, Copyright, Indian Copyright Act, Intellectual Property Rights,
IPR, AI

Introduction:

Where we live today is full of technology and the impact of technology. Growth is very
important for every aspect of life and that is the reason we need to permit Artificial Intelligence
(AI) to flourish in its own way. We are in the position to maintain balances between the two as
there exists a very thin line of separation between apply and abuse. The unique features of AI
and the way AI can be developed to be involved in social, ethical, policy and legal implications.
AI is addressed as the fourth industrial revolution with fast-paced changes in the realm of
technology and law. In recent times, the global community of governments and organizations
has come together to address questions related to ethics, business processes and global
governance.
 The goal of AI in any AI system is to increase the efficiency of performing a task
autonomously or with minimum human intervention. The effect shows that we have progressed
in the goal. Forbes released an article outlining the progress in AI research and application in
January 2018. Out of 48,68,421 submissions on the subject of Computer Science 2,00,237 are
indexed by the keyword called AI on Scopus in 15 years between 2000 and 2015.

The important characteristics of AI are it knows itself, gathers information from its
environment and acts on it and displays results as goal-driven behavior with creativity. AI is
clear and capable of interacting with other entities.

Study Phase Solving Phase

Artificial
intelligence

Study from Perception

reason System

Study from Recognize Expert Natural

experiences images System Language
System

Fig-1 Concept of Artificial Intelligence (AI)

AI and IPR:

The technology of AI was defined by John McCarthy in 1955, a mathematician and

cognitive scientist who coined the term “Artificial Intelligence”. McCarthy is considered one of
the founding fathers of AI. According to him, AI is “The Science and engineering of making
intelligent machines, especially intelligent computer programs”. AI can be summed up as a
modern computer programming tool with the capability of simulating human intelligence and its
cognitive behavior, having immense potential for various future uses in the human way of life.
The most common types of AIs used currently are reactive AI, theory of mind AI, limited
memory AI, self-awareness AI and so on. AI is associated with various facets of human
inventions such as novel creations, innovations, etc. Francis Gurry, Director General of WIPO
stated that AI will have massive technical, financial and communal consequences and will
change the way we construct and deal out goods and services, as well as the method we work
and survive. For the application of AI in various fields in India, we need to undertake a
compatibility test and examination to see how the present interface of IPR & AI is mutually
similar to facilitate the application and consumption of AI in the future. The following are the
challenges that are presently faced by this interface:

1. Issue of sub-matter eligibility standards for AI lead inventions

2. Issues of inventor-ship for AI-generated inventions
3. Issues of infringements in the AI domain
4. Issues of assigning legal status to AI stakeholders
1. Issue of sub-matter eligibility standards for AI lead inventions:
The present IPR structure prescribes that invention, innovation and utility are the three
benchmarks for granting the right for patents. Some of the elimination in the IPR framework is
mathematical methods or algorithms or computer programs that are not patentable in India &
many other jurisdictions. Therefore the computer code itself is not patentable, which will come
under the copyright act as a “literary work”. On the other hand, a brand-new machine or a
combination of hardware and computer codes is patentable. Thus patentability depends on
novelties and industrialized applications. It can be said that the IPR and AI have quite a few
overlapping dimensions existing.
2. Issues of inventor-ship for AI-generated inventions:
The important problem is the issue of granting ‘inventor-ship’ especially if the work is an
output of any AI tool. The current law mandates that patent rights can be only granted to a
person recognized by the law. A person who is the inventor of the product is only permitted to
apply for the patent. This raises a point of difference of opinion as to who can be termed a
‘person’. AI is not a person who cannot indulge in such activities. This emerges as the most
arguable issue in the field of inventor-ship for AI-generated inventions. Three types of persons
are available according to UK jurisprudence such as 1. Natural Person, 2. Artificial Person and 3.
Electronic Person. Experts are taking a cue from Roman Jurisprudence and may grant limited
jural rights to AI.
3. Issues of infringements in the AI domain:
In the case of AI as an inventor, the question raised is who should be held responsible for
actions taken by AI to the end-user. Is it the developer or the AI? If any product malfunctions,
the producer however can be accountable for the infringement of the patent by the AI invented
by him. European Parliament Resolution could be an obligatory insurance scheme. The decision
raises the prospect of supplementing such an obligatory insurance system with support to
guarantee that compensation can be made for reparation at this point no insurance coverage
exists. Another point is AI itself is accountable for its act of violation of patents. However, to
do so it will be provision precedent to recognize AI as a legal person. This has already been
brought into act by the European Parliament Resolution by giving the position of “electronic
person” to the complicated AI.
4. Issue of assigning legal status to AI stakeholders:
Attributing a separate legal status to AI agents and defining the contents of status viz.,
regarding accountability, concluding rights and potential duties allow for minimum assurance
about the consequences of the opening of those new smart agents in the world, which contrasts
with the huge amount of unpredicted skill still need to tackle and moderate as they are not only
related to ultimate compensation, but also to the safety of personal data and public security. The
issue of yielding legal personality to AI also poses immense jurisprudential challenges, to which
we have experts on both sides advancing the pros and cons of this subject.
The recent NITI Aayog’s vision document of 2018 deals with one aspect of AI growth
and its promotion, but it fails due to the lacuna in addressing the possible legal implications and
concrete solutions. If we do not access and focus on the fundamental legal implications of the
AI-IPR interface, the upcoming story of AI in India will face problems in the renewable energy
growth and IT sectors.

AI and Copyright:

The copyright law has seen enormous advancements over the past decades due to the
development of technology. The copyright law has gradually lengthened its field from literary,
musical and dramatic works to even include computer programs. The law of Indian copyright
struggles to keep pace with technological advancements. The last decades saw major
amendments to the Copyright Act, 1957. Many yawning holes that need to be addressed by
lawmakers, one of them is AI.

AI works on the ideology of deep learning enables, and imitates human being behavior.
In 2023 era, we are in the status to ask the following questions to AI:

1. Does AI-related work deserve copyright protection?

2. If yes is the answer, who should be the author/owner of such right?
3. How IP sharing about AI-related works is administered?
In most countries including India, a literary, artistic, dramatic or musical work can get
copyright only if it is creative. The innovation must be accompanied by the minimum
“Modicum of Creativity” principle laid down in the EBC Vs D. B. Modak’s case. The “Sweat of
Brow” doctrine has been ineffective. The answer to the first question is no according to the
Indian copyright act. Monetary incentives still to be one of the most patent driving forces behind
the construction of most of the Intellectual Properties. The question arises about the corporations
and people pooling their assets behind the development of AI.
The World Intellectual Property Organization (WIPO) identified there are three existing
AI. Such as: 1. Expert System, 2. Perception System 3. Natural Language System.
Copyright Act distinguishes the author and owner. The owner is vested with all the
copyrights and gets all the economic rights. The author only poses moral rights. TRIPS
agreement shows that the owner enjoys an enhanced place under the copyright law than the
creator.
Who is treated to be an owner? The company owns the technology; the end-users buy the
technology and set the parameters and the artists work with AI to generate new work. The
Indian Copyright Act section 2(d)(vi) of 1957 contains a remarkable provision that states that “in
relation to any literary, dramatic, musical or artistic work which is computer-generated, the
person who causes the work to be created” is considered to be the author. That is who is closely
& directly concerned with the “expression” is finally to be copyrighted. The person with
maximum involvement in the expression is the owner of the copyright. Thus, the person who put
his money and took the threat to generate the work with AI is holding the copyright and not the
end-user because their contribution, reproduction and distribution are less. The program
developers also do not come under the ownership because they are under the commissioned job
to develop such AI. Copyright subsists in expression and not ideas, in particular, the form of
language used for the expression. If the copyright is infringed, the owner is the answerable
person.
Status of AI under the law existing in India:
The Indian courts have not yet explicitly adjudicated the status of AI legally. It has been
clearly adjudicated when the measure to clear up the dilemma and debate about legal
applicability to AI operations. The expansion and the progress of AI systems are influential in
improving the technology of India. Since acknowledgment of AI has been accepted for the
nation’s growth as a whole, the Ministry of Commerce, Government of India has formed a task
force for exploring the possibilities to force the AI ensuring overall growth across multiple
sectors. It was started in the year 2017 and consists of 18 members including scientists, experts,
industrialists, Government bodies, academicians and other Government department persons titled
“Task Force on AI for India’s Economic Transformation” chaired by Prof. V. Kamakoti
(Professor, IIT Madras) and Hon’ble Justice B. N. Srikrishna respectively. The takeaways and
recommendations are as follows:
Takeaways:
1. Ten specific sectors were identified based on the applications of AI algorithms such as
health, manufacturing, finance, agriculture, education, environment, public utility
services, technology for disabled persons, national security, and customer relationship
management.
2. It identifies some specific challenges faced while deploying AI algorithms on a large
scale in the following sections.
a. How huge data and analysis through AI can be safeguarded?
b. How the data security, privacy and ethical norms to be ensured with
technological and regulatory frameworks?
c. How does the use of AI in different fields affect the issues of employment and
curtailment?
d. How the digitization with the help of AI in the structure of application of the
Internet of Things (IoT) would be vulnerable in the aspect of cyber attacks?
Recommendations:
1. To situate an “Inter-Ministerial National Artificial Intelligence Mission” to take action
for five years. It has to fund for about 1200 corers in Indian Rupees. This will act as a
Nodal Agency (NA) to check and organize all the technical activities involving the use of
AI in India.
a. To take all the academicians and manufacturing players to assemble to accumulate all
the AI-related research works and to appropriately support to improve study on AI at
the National Level and to increase awareness and usefulness of AI in society.
b. To create co-ordination from various ministries for the growing use of AI systems in
India.
c. To situate centers of quality to boost up research faculty and to create a standard
testing process to review AI performance and to finance for raising an independent AI
machine to provide suitable information to the public to improve them.
2. To guarantee the protection policy of data and to guarantee suitable recommendations for
the equality of data, the task force allowed the following:
a. To situate a digital data bank for getting cross-industry information
b. To generate a data ombudsman by the Ministry of Commerce and Industry for
addressing data-associated subject matter while dealing with data by AI.
c. The Bureau of Indian Standards (BIS) should acquire proposals for implementing
norms and standards that are worldwide discussed in the light of AI systems.
3. Two policies have to be framed
a. Policy dealing with information
b. Tax incentives regarding profits created from the application of AI technologies.
4. To structure the strategy for increasing sufficient personnel to meet the rising demand for
dealing with AI algorithms.
5. Inter-departmental synchronization is to be established so that India can take part in the
International Discussion Forum on AI Applications.
AI and Data Protection in India:
The rising participation of AI applications like data analysis, IoT (Internet of Things)
areas, and healthcare, employment and transportation fields will lead the AI to be talented to
have simple admittance to Personally Identifiable Information. This would help industrial
organizations to have a design concerning the preferences of the possible clients. Data analysis
by AI for various purposes is helpful for people. Such simple admission to personal data by AI
also invites better questions regarding privacy issues. Hence a complete structure and efficient
policy are to be framed to tackle the privacy vulnerabilities to manage the use and applications of
AI. This concern is becoming more significant in the view of current judgments of the Supreme
Court of India; privacy is a fundamental constitutional right. The Supreme Court in that
innovatory order has also observed that there is a need to provide a technology unbiased frame
that would be able to encompass significant privacy-concern issues influential to the use of AI in
India.
The existing Data Protection enactment and policy are not sufficient to fight efficient
defense for the privacy of personal data. Hence, the Supreme Court in its judgment has
mentioned the need to frame more comprehensive data protection lawful mechanisms.
Application of AI and its liability:
The liability is a significant matter in yielding a legal personality to AI. The normal
utilization of AI cannot be held accountable and responsible for causing any injury in its own
ability because AI can hardly qualify itself to possess legal personhood. Usually, robots can
never be sued that they can do injury and harm. However preface of AI has encouraged the
stakeholders to reorganize this usual conception that machines cannot have legal personality. In
this, the sense of liability covers a question in the outlook of the extent of the legal relationship
between AI and its actual developer. Jurisprudence says that unlawful action causing damages
are needed to be remunerated with liabilities. Those liabilities are divided into two types 1. Civil
Liabilities and 2. Criminal Liabilities.
Civil Liabilities:
Damage is considered one of the major ingredients of civil liability. Damage caused is to
be proved first for getting redress. AI possesses super intelligence and AI should be aware of its
action. AI is supposed to have possessed rights and duties which are generally attributed to both
cyber of legal persons human as well as artificial like compensation. This is a question if AI can
be attributed to personhood. The answer is not but with a way of instance, it is sure that
jurisprudence would be able to develop a satisfactory answer. If an accident happens in self-
driving cars driven with the help of AI, the debate is going on in the legal bench on whether AI
or its developers to be set with civil liabilities for the injury caused.
Criminal Liabilities:
AI would cause hazards to human beings’ lives. The research papers including Stephen
Hawking’s 2015 research highlighted that the devastation might have happened through AI ware
fare. AI may cause damage and how the situations can be prohibited by laws or through ethics.
The trouble is that AI entities are not measured as subject matter to the law. The subject of the
commission of crime was considered committed by the firm. Hallevy has considered three
criterions to take AI underneath Criminal Liabilities.
1. AI has not been approved with human attribution. AI is not measured to possess a
criminal state of mind. It has been noted that the actual executor is either the end
consumer or the programmer accountable to the device of the AI software.
2. The end consumer or the programmer of the AI algorithms is to bear Criminal liability
without having a criminal objective. This liability is fixed on them considering their
neglectful mind state.
3. The thought of AI has directly changed the acceptance of criminal liability. This model
of AI is held criminally responsible along with the end consumer or the programmer.
Liability is assessed in the specific context of the situation.
Conclusion:
Persons and entities are more and more reliant on AI. This dependence on AI by persons
or entities is anticipated to rise speedily with way of time. This scheme is evident from the
reality of the relevance of AI would bring economic development to the tune of 1.7% throughout
various industries in 2035. The rules effectively direct the end-user or programmers of AI
algorithms so that they are rigorously bound to ethical values while programming AI algorithms.
In India due to the lack of efficient jurisprudence to guarantee a balance between privacy issues
and the necessary usage of AI technology, it is nearly predictable that shortly suitable, inclusive,
executable simple enactment, rules and policies would be shaped so that during increased
utilization of AI applications the technological enlargement would accomplish to the peak of its
achievement without compromise with the safeguard of data privacy issues.
Suggestions:
1. Should have national level and regional level consultative body of experts for guidance.
2. Draw a roadmap for assimilating the growth of AI.
 3. Develop a system by integrating AI with IPR for better facilitation and benefit of AI
technology in the future.
4. Initiate suitable legislative amendments for balancing at the national level and regional
levels.
5. Develop the copyright laws to decide who should be the author/owner of the work.
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