Knowledge and creativity are valuable assets, and in partnership they can become something profitable and desired.
In order to preserve the rights of the inventors, there is the intellectual property which has been challenged by the rise of artificial intelligence (AI) and the ability of machines to create in an autonomous way.
In this article, we are going to approach the concept of IP, its types and benefits, and we are also going to understand the impact of AI and respond to the following question: who holds the intellectual property of creations performed independently by a machine?
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What is intellectual property?
Intellectual property is an area of property rights responsible for ensuring, through regulations and good practices, that knowledge is a private and protected asset.
According to World Intellectual Property Organization (WIPO), “intellectual property is related to the intangible creations of the human intellect, such as literary and artistic works; designs; symbols, names and images used for commercial purposes.”
WIPO is an independent agency which holds the mission to lead the creation of models of IP that assure the innovation for the sake of all and also the legal protection for the inventor.
Types of Intellectual property
According to the WIPO, IP can be divided in two categories: industrial property and copyrights; while the Brazilian Association of Copyrights prefers to place it in three categories:
The industrial property is regulated by Law No 9,279/96 and covers industrial patents, trademarks, industrial design and geographic indication (GI). It includes companies as well as individual activities, and ensures the owners the exclusivity to manufacture, commercialize, import, use and sell the invention.
Some examples are:
- Machines and equipments;
- Chemical and pharmaceutical products;
- Food compounds;
- Product names;
- Trade names.
The law No 9,610/98 guarantees the copyrights of intellectual work, including books, music, photographs, software, films, documentaries, events, etc.; in other words, everything referring to artistic, literary and architectural works.
The copyrights can be divided in two fronts: copyrights and related rights.
For example, in the case of the creation of literary works and its interpretation in the theater. The right in relation to the original work belongs to the author, and its interpretation by another person, and in another way, is considered a related right.
This model is considered a “legal hybrid”. It is an intermediate figure between industrial property and copyright, and includes:
1. Integrated circuit topography, as explained in Law No 11,484, which explains the incentives to the Digital TV equipment and electronic components industries.
2. Cultivating, which consists of the reproduction or vegetative multiplication of a plant.
3. Traditional knowledge associated with genetic resources, in accordance with Convention on Biological Diversity and of Decree nº2,519.
Intellectual property for technology products
A software is distinguished as a copyright by the Law No 9,609/98, mostly known as “Software Law”.
The law specifically addresses the protection of intellectual property and commercialization of computer programs, in addition to establishing that they are protected in the same way as literary works.
In this, the registration of the software source code must be done in the National Institute of Industrial Property (INPI) and its validity period is fifty years.
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Regulatory authorities in Brazil
The regulation of the intellectual property involves some organizations, laws and regulations.
In Brazil, INPI is the main body responsible for registering trademarks and granting patents. However, the INPI is exclusive for the industrial property area – there are some exceptions, as in the case of software.
For copyrights, there are specific entities, according to the type of work:
- National Library: performs the registration of literary, artistic, scientific and musical productions.
- Federal Engineering Council, Architecture and Agronomy (CONFEA): maps, architectural projects, geographic maps, etc.
Agreements and regulations about copyright
Brazil is part of the Agreement on Trade-Related Aspects of Intellectual Property – TRIPS, – which was created by World Trade Organization (WTO), and sets down the standard of copyright protection.
All participating countries are required to ensure that national laws are in agreement with the standard set out in TRIPS. Law No 9,279/1996 regulates the Intellectual Property (IP) in Brazil.
Impact of artificial intelligence in the field of IP
Artificial intelligence affects many areas, due to its high capacity of data interpretation.
The trend is that it keeps transforming the way we work, and we live, besides affecting production and distribution chains, as it has already been done to education, health and economy.
For the intellectual property field, the main challenge is the evolution of the machine learning which allows that algorithms capable of evolving would be able to teach the machine what actions to be performed.
The machine learning allows a program to become intelligent to a level that it can create certain things, as texts and paintings.
See the examples:
* Text creation
Program GPT-3 is able to create different kind of texts and even song lyrics. The model was developed by the OpenAI, through deep learning, one of the most advanced techniques of machine learning.
The human only needs to feed a prompt with initial instructions and the GPT-3 does the rest of the work.
* Painting creation
Ai-Da is an ultra-realistic artificial intelligence robot and is considered an artist.
She is capable of making abstract drawings, sculptures and also portraits, once she has cameras in her eyes that, in conjunction with AI algorithms, process the image and command the robotic arms to draw.
According to WIPO, the main question about intellectual property of artwork as the ones mentioned above is in relation to creativity.
Is an artificial intelligence machine creative? Is it possible to consider Ai-Da as an idealizer, since she herself is a creation?
Another interesting example is the project The Next Rembrandt, which used artificial intelligence to analyze the artist’s original paintings and create a new one with patterns from the original painter.
The process was the following:
- Collection of data about Rembrandt artwork;
- Model Definitions;
- Generation of models on the basis of the previous phases;
- Final painting creation.
How is the Brazilian Intellectual Property Law?
By default, intellectual property includes creations of the human mind, and Brazilian law requires an individual to be the author of a work. Therefore, a machine cannot be copyright owner.
This is a very controversial topic.
In theory, without copyright, the work created by artificial intelligence is unprotected and becomes public domain, which is not attractive for companies that invest in the development of technology.
If there is no copyright for the company that develops artificial intelligence to profit in any way, there is no incentive to create new technologies.
Possible solution: modify the legislation so that the copyrights of works of literary nature, artistic, etc., would be given to the creator of artificial intelligence responsible for the final result.
Benefits of the use of AI in the field of intellectual property
Artificial intelligence is also an ally of intellectual property regulators.
WIPO has explored the use of AI to streamline the patent registration process, and also intends to use technology in searches in database, through the recognition of photos, patterns, etc.
According to Francis Gerry, ex-general director of WIPO, the volume of requests is the main factor that encourages the use of artificial intelligence in the management of intellectual property. He believes that AI tools increase the quality of the process.
Despite the challenges and complexity that artificial intelligence can bring to the intellectual property field, this is a necessary and urgent discussion. AI will continue to evolve, and laws and regulations need to be adjusted to the reality of a technological world.
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