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| Jannat Ara Tasmim |
Intellectual property refers to the
products of human intellect and with which people can earn recognition and
monetary gain.[1] It
includes inventions, artistic creations, designs and everything that is created
using one’s creativity.[2]
Artificial Intelligence is one of the most discussed topics of the recent
world. To simply define it, it is a simulation of human intelligence in machine,
robot and electronic devices which enables the devices and machines to perform
tasks like writing, creating content, problem solving, research for resources
etc.[3] In
recent times, the increasing utilization of AI in every sector is causing the
probability of violation of IP rights. As AI is a very modern concept, the
enforcement of existing laws regarding AI generated intellectual creations also
remains a challenge. Intellectual Property and Artificial Intelligence are
correlated very broadly. However, for better understanding in this discussion,
some key terms should be decoded and explained.
● Intellectual Property Rights(IPR): Intellectual Property is the
property which is created with human intellect and creativity. Intellectual
property gives the author, inventor exclusive rights over the property or the
creation.[4] The
rights an innovator or author has over an intellectual property are the
Intellectual Property rights. Law gives protection to inventors, creators,
authors over their property and their rights. Intellectual property rights
extend to different categories including copyright, patent, trademark etc.
● Patent, Copyright, and Trademark: The main branches of IP law that
protect innovations, creative works, and branding, respectively. Understanding
these terms is crucial in examining how AI challenges traditional legal
frameworks.
●
Artificial Intelligence: Artificial Intelligence is the
simulation of human intelligence technology based products like devices,
machines and robots. This is an exceptional form of intelligence which has
extraordinary features of problem solving, learning, research and reasoning.[5] The
works that are produced by AI are called AI generated works. AI generated works
have both positive and negative impact on the world, in the perspective of
education, innovation, research and creativity.
Intellectual Property Law is a newly
emerged concept and the laws are
recently developed. Apart from international law, there are domestic IP laws
and rights in Bangladesh as well. The international laws are;
● Berne Convention, 1886: The Convention mandates the member
states of it to give copyright protection to all the intellectual property,
regardless of its nature and even without registration of said property.[6]
● TRIPS Agreement, 1994: This agreement requires all the
members of WTO to give IP protection and to adhere to sufficient enforcement of
law to give protection of copyright, patent, trademarks and other intellectual
properties.[7]
● Patent Cooperation Treaty (PCT): This treaty indicates the application process for patent
protection and gives guidelines for protection of patent.
●
World Intellectual Property
Organization Convention: WIPO is an organization of the UN which works for protection
of intellectual property rights worldwide.[8] The convention gives a
framework for IP protection, focusing on copyright protection.
Apart from these international laws,
Bangladesh has some IP law which is purposive to give protection to
intellectual property rights.
● Copyright Act, 2023: This law defines intellectual
properties which are eligible to get copyright protection and why.[9] Also
this gives the guideline on how to deliver proper protection and serve rights
of a rightful owner.
● Trademark Act, 2009: This act defines trademark and gives
guidelines to get trademark and proper protection.[10]
● Patent Act, 2022: This law deals with patent protection and gives guidelines
for protection of the rights regarding this.[11]
●
Geographical Indication of Goods
(Registration and Protection) Act of 2013: The products that have geographical
significance, known for special quality or characteristics, this law gives
protection to such products.[12]
The impact of AI in IP rights has
been a matter of concern recently. AI is a remarkable innovation of technology,
but it has some negative characteristics as well. The influence of AI on IP is
profound and affecting in various ways.[13] AI can be used to a certain
extent unless it harms the credibility of another creation. Even though in the
beginning AI was used in robots, manufacturing, finance etc, nowadays it is
used in education, healthcare and mostly in every sector. Now AI is more easily
accessible, more advanced and catalyzing advancement across various sectors.
Intellectual property and AI both are connected in various ways. But often AI
raises questions about the integrity, authenticity and ownership of
intellectual assets. The increasing role of AI in innovation and research is
creating legal issues regarding ownership and credit of intellectual
properties, triggering complex debates over legitimacy of authorship, ownership
of such innovations.[14]
AI being used in different
industries without any guideline or binding is harming the innovation itself.[15] AI
is being used in producing music, art, literature is not offensive unless it
harms the actual content. Nowadays, AI generated music, arts, and literature
are very common in every internet oriented platform and media.[16]
While making these AI generated versions, they do not seek permission from the
author or owner. Moreover, these AI generated creations harm the actual
creation, with losing the significance behind the content.[17] For artists, a music, an
art or literature holds a very significant emotion, hardwork and dedication. It
is hard to swallow if someone else misrepresents this using AI. These kinds of
AI generated works hamper the authorship and ownership of the creator.[18] Law
does not give protection to such works, thus the owner gets deprived of his
rights.
In the case of patents, it is a
matter of question in modern days if AI can hold patents of an intellectual
property or not. There are various jurisdictions, in some jurisdictions only
natural persons can have recognized patents, whereas some gives AI rights of
patent to exercise over a property. The United States Patent and Trademark
Office (USPTO) and the European Patent Office(EPO) have ruled that only natural
persons can get a patent.[19]
This gives the right over intellectual property to human beings only. On the
other hand, Thaler vs USPTO (2021) and DABUS decision of UKIPO stands for legal
frameworks to give AI the patent rights.[20] Here, a concern arises
regarding the patent right of a real owner or inventor, his intellectual labour
and rights over the property.[21]
Even though AI is a very useful tool, it does not have natural features and
consciousness as a human being.[22] AI
generally follows the commands of human beings and generates as per the
insurrection, so the actual credit should go to the human inventor only whereas
AI can be recognized as an technological assistant. Hence, it leaves a
challenge from an ethical and legal perspective. It is equally applicable for
any other intellectual property including trademark, trade secrets, industrial
designs etc. However, it is still an unresolved issue which requires research
and gets addressed by law.
To conclude, the rightful owner of an intellectual property is at high risk of being deprived of rights over their own property due to the elevated influence of AI. The legal framework for AI generated works and protection of such intellectual property are yet to be discussed in the legal arena. This is a concerning matter as the time passes because AI is being misused and causing not only trouble to public interest, but infringing rights of the actual owner. It is very important to emerge new laws regarding this, address AI generated works and authorship or ownership of such property and give a well established law and policy to deal with such matters.
References
[1]‘What Is Intellectual Property
(IP)?’ (WIPO) <https://www.wipo.int/about-ip/en/> accessed 5 March 2025
[2]Salle S and Rini WSD, ‘Development
of Artificial Intelligence Regulations and Implications for Intellectual
Property Rights Protection’ (Artes Libres
Law and Social Journal)
<https://arteslibres.com/index.php/law/article/view/10> accessed 4 March
2025
[3]Mahima Singh, ‘The Impact of
Artificial Intelligence on Intellectual Property Rights in the Legal
Perspective’ (2023) 1(1) ILE Lex Speculum APIS 3920-0036, ISBN 978-81-964391-3-2.
[4]'Intellectual property rights: An
overview and implications in pharmaceutical industry' (2011) 3(2) Journal of
Natural Science, Biology and Medicine 107
[5]Craig L, Laskowski N and Tucci L,
‘What Is Ai? Artificial Intelligence Explained: Definition from TechTarget’ (Search Enterprise AI, 1 October 2024)
<https://www.techtarget.com/searchenterpriseai/definition/AI-Artificial-Intelligence>
accessed 5 March 2025
[6]Goldstein, P., 'Copyright and Its
Substitutes' (1997) 1997 Wis L Rev 865.
[7]Menell, P.S., 'Intellectual
Property: General Theories' in B. Bouckaert and G. De Geest (eds), Encyclopedia
of Law and Economics, vol 2 (Edward Elgar 2000).
[8]World Intellectual Property
Organization Convention
[9]Copyright Act, 2023
[10]Dinwoodie, G.B., 'The Death of
Ontology: A Teleological Approach to Trademark Law' (1999) 84 Iowa L Rev 611.
[11]Long, C., 'Patent Signals' (2002) 69
U Chi L Rev 625.
[12]'Management of intellectual property rights in Mainland Tanzania
and Rwanda: reflecting on the one-stop centre strategy' (2023) Journal of
Intellectual Property Law & Practice
[13]Setiawati D and Huang NK,
‘Intellectual Property Rights Analysis in the Context of Artificial
Intelligence Development in the Indonesian Legal Context’ (E, 1 October 2024)
<http://lenkasia.com/ejustice/article/view/10> accessed 4 March 2025
[14]Setiawati D and Huang NK,
‘Intellectual Property Rights Analysis in the Context of Artificial
Intelligence Development in the Indonesian Legal Context’ (E, 1 October 2024)
<http://lenkasia.com/ejustice/article/view/10> accessed 4 March 2025
[15]Reichman, J.H., 'Legal Hybrids
Between the Patent and Copyright Paradigms' (1994) 94 Colum L Rev 2432.
[16]'AI's assault on our intellectual
property must be stopped' Financial Times (London, 10 January 2025)
[17]'Creative industries are among the
UK's crown jewels - and AI is out to steal them' The Guardian (London, 22
February 2025)
[18]'AI copyright shake-up could breach
international law' The Times (London, 7 March 2025)
[19]McKenna, M.P., 'The Normative
Foundations of Trademark Law' (2007) 82 Notre Dame L Rev 1839.
[20]Thaler vs USPTO (2021)
[21]Reichman, J.H., 'Legal Hybrids
Between the Patent and Copyright Paradigms' (1994) 94 Colum L Rev 2432.
[22]Because It Is Wrong: An Essay On The
Immorality And Illegality Of The Online Service Contracts Of Google And
Facebook' (2019) Case Western Reserve Journal of International Law