By Favour Lazarus*
Introduction
We talk about the fact that humans have alarmingly lost that which makes them distinct from other animals in terms of reasoning and intelligence. This is undoubtedly so, given that a simulation of human intelligence into machines has extended that ability and divulged that peculiarity from humans. However, we hardly converse on how almost every aspect of our lives and laws will be tremendously affected by this new normal and will, consequently, require a redefinition.
Defined broadly, Artificial Intelligence (AI) may be regarded as strong, problem-solving algorithms or machines that have been programmed with human-like capabilities using techniques such as neural networks, machine learning, and logic programming, through which they are trained to be able to perform tasks that simulate human intelligence such as solving problems, understanding languages and creating things.
Sequel to the foregoing, this paper analyses the relationship between intellectual property, specifically patents and artificial intelligence with the view of attempting a redefinition of this relationship to suit a data-driven world.
Intellectual property vis-a-vis a technology-driven world
Intellectual Property (IP) law, as the name implies, is the law that protects the intellectual property of humans and their moral and economic rights over these properties. It includes Copyright (protecting literary, artistic, musical works as well as sound recordings, broadcasts, and audio-visuals), trademark (the insignia on a product), patents (inventions), and industrial designs. When the laws regulating intellectual property were drafted, AI and other forms of technology were not envisaged, and as such there were no clear provisions for them in the laws and conventions regulating intellectual property. It is worth noting that there have been a few statutory enactments in response to digitisation, generally.
However, it is obvious that the legislative milestones which have been achieved in response to digitisation within the intellectual property rights system are not enough to place intellectual property law at par with the current technological revolution. This is underpinned by the borderless nature of the internet and the constancy of scientific evolution. A ready instance is the concept of plant breeding and plant variety rights. Inasmuch as treaties and domestic laws such as Article 27(3)(b) of the TRIPS Agreement[i] explicitly require the protection of such varieties, arising issues for instance the lack of access to these technologies and the plant varieties themselves show that a lot still has to be done. Therefore, the impacts of AI technologies and gaps in the law and international best practices become important dimensions for interrogation for a balanced appreciation of existing or emerging issues.[ii]
Despite the issues that revolve around AI and its operational existence in IP law, AI offers enormous opportunities for IP such as aiding the enforcement, assessment, and monitoring of patent applications. Tools like "plagiarism check" which help in the protection of copyrighted literary works have also been affected by AI.
Therefore, we can conclude that the first challenge AI poses to IP is the determination of whether or not works entirely invented 'by' AI programs are patentable under the law.[iii]
Rethinking patents for a data-driven world
The fact that IP has nothing on AI and the regulation of such a level of digitisation makes it easier for redefinition. A rethink in this context implies filling up the lacuna in our laws as regards the patentability of AI inventions and clearly defining the position of the law to avoid inconsistency in opinions and judgments.
Thus, it is my humble submission that the law tilts towards the point of view that AI inventions are patentable and deserving of copyright protection. Instead of courts trying to analyse whether or not AI is a person capable of inventions as in the case of Stephen L. Thaler v The Comptroller-General of Patents, Designs and Trademarks[iv], they should be more concerned with whether or not the invention itself fulfils the requirement for patentability under the law. This is due to the fact that the law seeks to protect IP and not the source of the intellect.
The first and most important requirement for patentability as provided by the UK Patent Act of 1977, the Industrial Property Act (Kenya), the Kenya Patent law, Patent and Designs Act of 1970 (Nigeria) is Novelty/Newness. For instance, section 1(1) of the Patent and Designs Act of 1971 (Nigeria), provides that:
"Subject to this section, an invention is patentable –
(a)If it is new, results from inventive activity and is capable of industrial application…"
Under the above section, an invention fulfils this requirement if it is novel to the industrial sector; once it is new, the invention ought not be published or disclosed before the time of application. The law also considers the inventive activity of the inventor and the industrial application of the invention. Therefore, the personality of the inventor is not part of the requirements for the patentability of an invention. Hence, it is a sheer refusal to apply the law as it is and of course, a promotion of the uncertainty of the "written" law to deny AI inventions patentability on the shallow ground that patentable inventions should be created by natural persons.
Laws are essentially dynamic and can be interpreted, or where impossible amended to suit the sociological and scientific progression of the society in which they are applied in the event the law initially and specifically referred to natural persons. This is exemplified by the fact that, initially, the law considered persons as limited to only "natural" persons. However, in the case of Salomon v Salomon[v], the court articulated that the recognised body incorporates as falling within the legal definition of persons and ascribed to them the status of artificial or juristic persons. Likewise, it can be inferred that this is another recognition the law via the courts ought to make by rightly recognising artificial need for reform. Bold steps must be taken to effect that reform.
Furthermore, some scholars have argued that AI machines cannot be inventors. Rather, they are tools with which inventors make their inventions. Howbeit, it is pertinent that these scholars and all who share their point of view be brought to the knowledge that these machines are gradually attaining a point of self-awareness thus wielding a certain level of autonomy over their actions. As the Australian Deputy Commissioner of Patent (DCP) rightly stated in Stephen L. Thaler[vi], "…there would have been no doubt that inventors were natural persons, and machines were tools that could be used by inventors. However, it is now well known that machines can do far more than this, and it is reasonable to argue that AI may be capable of being inventors". No truer, realistic and updated words. With the rate at which AI machines are becoming self-aware and autonomous, they should be incorporated into the legal definition of persons and be allowed as much rights as every legal person is entitled to.
Conclusion
The fact remains that the goal of IP law is to protect the intellectual property of a person. Therefore, as long as there is an intellect from whom creative property is exuded, there is something for the law to protect. Thus, it will be a crying opprobrium for the law to neglect its clear responsibilities on very shallow grounds.
*The author is a student at Nnamdi Azikiwe University, Awka, Anambra State, Nigeria.
[i] Trade Related Aspects of Intellectual Property Rights, 1 January 1995, U.N.T.S.299.
[ii] Desmond Osaretin Oriakhogba and Ifeoluwa Olubiyi, 'Intellectual Property law in Nigeria; Emerging trends, theories and practice' Paclerd Press Limited, Benin City, 2023.
[iii] Oriakhogba and Olubiyi, "Intellectual Property law in Nigeria".
[iv] Stephen L. Thaler v The Comptroller of Patent, Designs and Trademarks [2020] EWHC, 2412.
[v] Salomon v Salomon (1897) AC 22.
[vi] Stephen L. Thaler [2021] APO.