The curious case of generative AI and IP rights

Caught in one of Bengaluru’s notorious traffic jams, a businessman’s eyes shift to his smartphone. He opens his retail bank's app and chats with the AI-powered chatbot. As his car inches forward, he easily finalises his business transaction.

In the heart of Mumbai's media hub, a creative director checks her client’s content calendar. A click of a mouse activates her agency’s generative AI; up on the screen pops headlines, the copy, and striking visuals. A few tweaks, and the content populates seamlessly across multiple media channels.

At a co-working space in Gurgaon, the co-founders of a niche travel startup watch users interact with their newly launched app’s generative AI as it creates unique itineraries—surfing in Bali, wine tasting in Tuscany–tailored to each user’s dream vacation metrics. And the bookings roll in.

You have just scrolled through real-life examples of generative AI at work. It’s no longer the stories of futurists; it’s today’s reality for businesses big and small.

And with all this tech goodness, questions around intellectual property rights emerge, making it more crucial than ever to understand the legal landscape.

So, let’s delve into the world of IP rights and generative AI.

There is no argument around this: AI is getting really good at making things. But when looking at it in business terms, this question arises: who owns that?

The human who told AI to do it or AI itself? What if this AI-made art breaks some copyright rules? Who’s to blame?

The two issues that need clarity are: the ownership of AI-generated works and the infringement of IP rights in the process of creation of these AI-generated works.

Let’s look at the ‘ownership’ conundrum first.

The Indian Copyright Act, (Section 2(d)(vi)), was amended in 1994 to address computer-generated work, defining the ‘author’ as the person who causes the work to be created. But only a real human can be an author; so, AI is out of the game.

The same goes for patents in India. Section 2(1)(j) of the Indian Patent Act spells it out clearly—an ‘inventor’ needs to be a living, breathing person. That means AI doesn’t get to be the inventor either.

But …

South Africa, one of the BRICS nations, has set a precedent by granting inventorship rights to an AI system for a patent. This shakes up the global debate, but its full implications are yet to be realised.

Now let’s take a look at ‘privacy’.

Generative AI relies heavily on huge pools of data to do its work, opening up a Pandora’s box of privacy concerns, especially if that data is personal or sensitive. At times, it even mimics parts of the data sets used to train it.

The big question then is whether this copying is legal, and the jury is out on the ‘fair use’ defence being tossed around. This adds questions to the already complex legal discussions happening around AI.

The crossroads where generative AI meets IP rights is a puzzle for the digital age—intriguing but needs careful consideration.

As the law currently interprets it, content generated through human-AI collaboration is eligible for copyright protection, given that human input guides the process. However, works autonomously generated by AI are not, mainly because AI lacks the status of a human author and therefore falls outside the copyright law.

Debates about this conundrum rage every day with support for both sides coming from across the business spectrum and a Parliamentary Standing Committee Report recommending the “revisiting of IPR legislations and implementing a strong IPR framework” in order to “extract benefits from AI”.

What the future holds, only time will tell. Until then, the business world, especially the small and medium businesses, will adopt and reap the benefits from the use of generative AI.

The author is Managing Director, Arctic Invent, an IP consulting firm.