Intellectual Property and Artificial Intelligence

By: Abdulnasser Radman
Arab Certified Intellectual Property Practitioner
Intellectual Property Deputy Manager in Abu-Ghazaleh Intellectual Property –Yemen Office

The intellectual property system is based on the principle of rewarding human's creativity and efforts in the form of innovative ideas for new products and new ways of doing daily works, such as technical innovations and attractive designs, distinctive trademarks, musical works, films, theatrical works, songs, paintings, sculptures, computer software, different forms of trade secrets and other creative and innovative products. Yet, this system is about to change radically with the emergence of artificial intelligence and its various applications that will change the IP system in many concepts, primarily the concept of creativity and innovation as well as ways of dealing with innovative and creative products.

Artificial Intelligence is a computer science field that aims to develop machines and systems responsible for performing tasks that are perceived to require human intelligence, whether they require limited human intervention or even without human intervention, based on machine learning and deep learning.

Until a few years ago, computer technology remained tool that helped creators and innovators to provide innovative products, and also helped ordinary users to save effort in their daily work. Computer technology was nothing more than tools to improve innovations and shorten the time to complete tasks. But with the emergence of artificial intelligence, the function of computer technology has changed to become a generator of innovations, in which any user can write commands to those applications for the purpose of generating new and impressive texts, designs, images and videos, and here the biggest challenge for those in charge of applying the intellectual property system arises, which is how to determine the ownership of these innovations and creative works that the average user did not make any effort to generate except typing few keywords in the search box of the artificial intelligence program!

In the absence of legislation regulating the ownership of creative and innovative products generated by artificial intelligence, attempts have appeared in the form of judicial precedents and administrative rulings to determine the ownership of intellectual products generated by artificial intelligence in some countries. One opinion went to consider the designer of the artificial intelligence program as the one who owns the rights in all products generated by the program, while another argued that the designer/programmer only owns the intellectual rights in the program itself, and does not own what that program produces. A group of experts calls for the ownership of the artificial intelligence product to be attributed to the user who gives the command to the intelligent program to generate it and not to the program designer. Others point out that ownership of those products should be attributed to the AI program itself! On the other hand, provisions appeared that prevent granting any rights in artificial intelligence products to any party and affirm that intellectual property rights can only be granted to humans and not to rigid applications that do not benefit from the economic or moral rights granted by the intellectual property system to a human who needs reward and incentive for creativity and effort for what he made and will make.

In the following lines, we will discuss the most important milestones in which the intellectual property system will interact with artificial intelligence, from the author's point of view:

First: Legislation and Enforcement of Intellectual Property Rights:
With the spread of artificial intelligence applications in many daily work, there has been an urgent need to develop new legislations on intellectual property and draft new agreements that address the challenges posed by artificial intelligence; in order to ensure that there is no confusion and contradiction in administrative and judicial decisions related to intellectual property rights in different countries. All these legislations and agreements are governed by a number of international agreements, most notably, The Paris Convention on Industrial Property and the Berne Convention or the Protection of Literary and Artistic Works. In this direction, the World Intellectual Property Organization (WIPO) recently began holding open dialogue sessions aim to provide stakeholders with a pioneering global framework to discuss the impact of leading technologies, including artificial intelligence, on intellectual property rights. Seven sessions were held in this global forum and an important document was issued entitled (Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence) in May 2020 as a global guide for administrative and judicial systems concerned with granting and enforcing intellectual property rights in different countries.  This document is expected to be the main base for the development and updating of global intellectual property agreements in respect of the challenges posed by artificial intelligence in this field.

Second: The use of artificial intelligence in the examination of different intellectual property rights applications and in drafting patents applications:
As artificial intelligence applications will maybe create a problem for the examiners of applications concerning the registration of intellectual property rights, in determining the originality of the intellectual products to be registered. These same intelligent applications will also be part of the solution through their use by the examiners in conducting the substantive examination of applications for registration related to trademarks, patents, and industrial models; as it will be easy for examiners to determine the degree of originality and innovation in those intellectual products, based on the final results presented by those applications, that will rely on more than one database in conducting search and verification. These applications will also enable examiners to conduct substantive examinations in more than one way, which will ensure the quality and accuracy of the results of the examination of applications.

Determining the novelty of inventions and drafting applications for patents registration are the most prominent difficulties faced by inventors when submitting requests to register their inventions with the Patent Offices; as these tasks require capabilities and skills that many inventors do not have, such as legal knowledge, writing skills, linguistic formulation, and analytical skills for the subject matter of the invention. Artificial intelligence applications will act as personal assistants for inventors in determining the novelty of the inventions they are developing or in the semi-final formulation of applications for registration of their inventions at the Patent Offices.

Third: The use of artificial intelligence in combating counterfeiting:
Artificial intelligence applications will assist judges as well as administrative decision-makers in intellectual property rights registration offices and customs authorities in determining the degree of similarity in intellectual property rights in dispute, and take appropriate decisions in disputes arising from the granting and use of those rights by various parties. These applications will also help to increase the level of enforcement of Intellectual property rights through the assistance of specialists who work in customs outlets; as it will make it easier for them to determine the degree of similarity between goods subject to customs examination, and this will greatly limit the entry of counterfeit goods into the market.

Fourth: Originality and competitive advantage:
The widespread and excessive use of artificial intelligence applications in various aspects of daily and professional business will lead to the emergence of a wave of retreat to originality and human creativity, and this wave will be strengthened by the errors and shortcomings of artificial intelligence in addressing human complex problems related to cultural and psychological aspects. As a result, some business owners will adopt human originality in developing and presenting their products, and build their competitive advantage on the basis of providing products developed by real people away from artificial intelligence applications. Some phrases such as (Prepared by Human) or (This Service is Provided by Real People) will appear when promoting products developed outside the artificial intelligence applications, similar to the phrase (Hand Made) which has become synonymous with perfectly crafted products in light of the overwhelming presence products of medium or poor quality manufactured by machines and robots.

Fifth: Business ethics and artificial intelligence:
With the excessive use of artificial intelligence tools in business, transparency, responsibility and professionalism will be at stake, and there will be the need to develop mechanisms and clauses in work contracts and development agreements between companies, employees and contractors to ensure reasonable use of artificial intelligence applications in developing and delivery of creative and innovative products.

Conclusion:
Artificial intelligence will radically change intellectual property laws and mechanisms of granting and enforcing intellectual property rights around the world. The greatest burden will fall on legislators around the world led by the World Intellectual Property Organization (WIPO) in building a flexible and dynamic intellectual property system that ensures a balance between stimulating and encouraging human creativity and innovation on one hand, and effectively dealing with the changes and challenges that artificial intelligence will impose on the owners of intellectual property rights and on those who are working in granting and enforcing those rights in government and judicial agencies, legal agents and lawyers in the field of intellectual property.