As the world becomes increasingly digital, the importance of intellectual property rights (IPR) has grown exponentially. The intellectual property now comprises one of the most valuable assets of any organisation, with patents, trademarks, copyrights, and trade secrets playing a critical role in facilitating innovation and growth. While IPR exists to provide legal protection and incentives to creators and inventors, new technologies and future trends in law will shape the future of IPR. In this article, we'll examine the emerging technologies and legal frameworks in India that will affect the future of IPR.
At present AI has been able to perform tasks involving human intelligence and the research and development on AI are still going on and the functions which AI will be able to perform in the near future are beyond imagination. But when we are discussing the benefits we must not forget that ultimately it is a machine and for a machine and there have been instances where the machine got beyond the control of the programmer and started performing tasks on its own.
Now these tasks can be either constructive or destructive but it gets difficult to control the AI machine or program if it starts performing actions on its own and goes beyond the programmer's hands. Though a lot has been done in the field of Artificial Intelligence there are still many ambiguities which still prevail and there is hope that the same is being resolved in the near future and we will have a clear roadmap as to what extent AI can function in human lives and inventions as well.
The future of IPR is being shaped by some of the emerging technologies in India. The following are some crucial emerging technologies that are likely to have a significant impact on IPR:
Artificial Intelligence (AI) and machine learning (ML)
AI and ML are among the most prominent emerging technologies that will impact IPR in India. With the emergence of AI-enabled machines, there is an impetus to redefine existing IP protection laws to make them more stringent. There is a growing concern about the lack of legal mechanisms to protect AI-generated works such as music, art, books, and films. In India, the adoption of technological advancements such as AI and ML will require a robust legal framework. To protect the creators of AI-generated work, new IPR laws and frameworks have to be implemented.
Blockchain
Blockchain is another emerging technology that has the potential to revolutionise the global economy. The technology has the ability to track and manage digital assets securely, which could lead to the development of new and better ways to register IPR. As blockchain provides a decentralised and transparent management system, its implementation could provide more transparency and secure copyrights, patents, and trademarks in India. Adopting blockchain technology would help streamline the IPR acquisition process and reduce the time and cost involved.
Internet of Things (IoT)
The Internet of Things (IoT) has brought unprecedented connectivity to the world. The technology connects devices such as home appliances, cars, and other electronics, generating massive amounts of data. With this new level of connectivity, creative inventions will arise, which will require protection from exploitation by third parties. India has some existing legal frameworks to address IoT, such as the Information Technology Act. However, further legal and regulatory assessments will be required to reach a consensus on a uniform framework that considers the complexity of protecting IPR in the Internet of Things ecosystem.
India's development model includes a large amount of technological progress, including AI. AI is not limited to social media and entertainment but is also accelerating retail. From online shopping to online car services, the country has experienced rapid technological changes. Problems in developing countries such as India are more concerning because it is the basic infrastructure that needs to be modified. India has well-established patent and copyright laws. However, there are no specific laws or provisions to regulate AI. Existing legislation does not cover the scope of artificial intelligence but is based on older types of intellectual property such as books, creative works, discoveries, etc.
The scope of artificial intelligence is much more complex and must be addressed differently than the existing system. Under the 1970 Patent Act, computer programmes, commercial methods, and mathematical formulas are not considered patentable inventions. In addition, the terms patentee" in Article 2 (p) of this Act and "person interested" in Article 2 (t) of this Act create barriers to the inclusion of AI in its scope. The Act specifically prohibits patentees of other persons who are interested in being humans.
Under the Copyright Act, two basic doctrines define the originality of work under the Act: the Heat of the Brow Doctrine and the Modicum of Creativeness. The theory states that a minimum of creativity is also acceptable, so you can include the original work of AI. The author of this act has been implied to be a human or legal person, thus restricting the idea of a machine being protected under this act.
The Act specifically prohibits anyone other than a human being from becoming a patentee. A patent gives the proprietor exclusive rights to the innovation, forbidding others from creating or selling it for a set period of time. The notion of "true and first inventor" is specified in Section 2(y) of the Act, for whom the right is granted. The actual and first inventor is not the person who brought the innovation into India or the person to whom it was communicated from outside India. Section 2 (y) does not require that the "true and first inventor" be a person; hence, works made by AI systems are within the definition's scope.
The Indian Parliament has passed several bills, including amendments to existing laws that have had an impact on IPR. Progressively, novel legislations such as the Geographical Indication of Goods Act, 1999, the Indian Copyright Act, 2012, and the Patents Act, 1970, have helped create the legal framework for intellectual property protection. These laws have greatly contributed to the establishment of a comprehensive legal framework for IPR protection in India.
However, emerging legal frameworks also need to be considered to catch up with the growth of new emerging technologies that undermine the integrity of IPR protection. The following are some of the emerging legal frameworks that will impact IPR in India:
Draught National Artificial Intelligence Policy
With emerging technologies such as AI and ML comes the need for comprehensive policy frameworks. In India, the Draught National Artificial Intelligence Policy has been developed to guide the ethical, privacy, legal, and regulatory frameworks for the development and use of AI. The policy recognises the need to create adequate IPR laws to protect the creators of AI algorithms, which are patentable. The policy emphasises the development of mechanisms to recognise and reward the creative efforts of individuals and establishments that leverage the potential of AI technology.
In a survey of IPR and emerging technologies, it was found that there are already some specific changes that the Indian Patent Office has carried out in response to the use of AI in the patenting landscape: "The Indian Patent Office has imposed comprehensive guidelines strictly about the AI platform's operation mechanism and the nature of the AI algorithm in the application process." (Sahu and Paranjape, 2021)
The Data Protection Bill, 2019
The Data Protection Bill, 2019, is an essential piece of legislation that has a direct impact on intellectual property rights in the digital landscape. It aims to create a legal framework that encourages consistent data protection practises by defining and enforcing data protection rights. The bill provides guidelines on the use of personal data that could be used to protect the real creators of original work while discouraging unauthorised access and use of such data.
The Data Protection Bill proposes to enshrine the right to data confidentiality and is expected to benefit copyright holders in India, particularly in the entertainment space. (Singh and Sahay, 2020)
Cyber Security Policy
A robust cybersecurity policy plays a critical role in protecting IPR in the digital environment. With the adoption of new emerging technologies, cyber threats are becoming more sophisticated, and cybercrime is growing exponentially. India has drafted a National Cybersecurity Policy to establish an effective regulatory framework that will secure IPR from cybercrimes. The policy focuses on providing the right infrastructure, training, and personnel to ensure that IPR is adequately protected from threats posed by cybercriminals.
Conclusion
Emerging technologies and legal frameworks will have a significant impact on the future of IPR in India. With AI and ML, blockchain, and IoT being adopted at a fast pace, it's essential to put in place legal and regulatory frameworks that support the growth of the digital ecosystem in India. The laws created by the government must be designed so that we can benefit from technology without jeopardising our rights.
As part of a historic judgement, the Supreme Court of India examined the concept of a legal person and ruled that there are no theoretical restrictions on the forms of legal personality granted (Shiromani Gurdwara Parbandhak Committee vs. Som Nath Dass and others), thus enabling changes leading to the creation of a legal entity where AI can be the co-owner of the invention. The IP industry grows proportionally to the growth of artificial intelligence. Consequently, innovation will also increase because transparency will increase, expenses will decrease, and the process will be easier. AI software data protection must be included in a specific law that includes all civil and criminal duties and offences.
A new interpretation of the law is also imperative for AI to succeed as IP owners and expand the scope of IP. For example, Canada has developed a statistic called the Intellectual Property Concentration Index (IPCI) to measure the frequency with which certain nations grant patents to artificial intelligence concepts over time.
The introduction of such an index can be used to measure the competitiveness of an industry or technology field based on the distribution of Indian patents in that market or industry. This discovery indicates that the extraction of text and data from copyrighted works can be allowed under the interim copy exemption (if the copied work has no independent economic meaning) and in licencing agreements. With a quasi-patent right with limited exclusivities and a short life expectancy, the consultation aims to work alongside the current patent system.
As India strives to become a digital-first economy, it is becoming increasingly important to establish IP protection mechanisms that secure creativity and innovation. A comprehensive and robust legal framework for IPR protection coupled with a policy framework to guard against cyber threats will help secure India's intellectual property while promoting innovation and creativity.