Introduction

Recent years have seen the rise of Artificial Intelligence (AI) from a niche field of computer science to a revolutionising force that has changed industries. AI systems have been performing tasks traditionally associated with human creativity, such as writing poems, composing music, designing logos, etc. This continuous and exponential rise has led to multiple changes in our perspectives. Now, we are questioning how we define ownership, authorship, and related rights in the legal field. 

A central question that often crops up in the context of AI in creative fields is how Intellectual Property (IP) law should react to the creations and innovations generated by or with the help of AI. IP laws around the world have so far given ownership of creations only to human beings. But AI has challenged the traditional notions of who can be an author or inventor under current laws. This has necessitated reforms in IP laws. 

Understanding the Basics

What is Artificial Intelligence? 

Artificial Intelligence (AI) is a technology that enables computers and machines to mimic human learning, comprehension, problem solving, pattern recognition, creativity, and autonomy.¹ We all have used AI, probably even without realising it. Netflix suggests shows to watch using AI to recognise patterns in individual preferences. Advanced forms of AI, such as OpenAI’s ChatGPT or xAI’s Grok, go a step further and create ‘original’ content based on prompts given by the user. 

What is Intellectual Property Law? 

World Intellectual Property Organisation (WIPO) describes Intellectual Property (IP) law as creations of the mind, like inventions, literary and artistic works, designs, symbols, and names used in commerce.² 

There are mainly four types of IP³: 

1. Copyright, which protects works like books, music, software code, and artwork. (The Copyright Act, 1957)
2. Patent, which protects inventions (both products and processes) that are new, useful, and non-obvious. (Patents Act, 1970)
3. Trademarks, which protect brand identifiers like logos, names, etc. (Trade Marks Act, 1999)
4. Trade secrets, which protect confidential business information, like Coca-Cola’s recipe. 

Copyright and AI

Copyright is perhaps the most challenged intellectual property law by artificial intelligence. Copyright is deeply rooted in the idea of human creativity. It exists to protect expressions of thought, imagination and skill. But what happens when those expressions are generated not by a person, but by an algorithm?

Let’s breakdown the issues that AI poses in context of Copyright: 

1. The human authorship requirement: 

The Indian Copyright Act, 1957, recognises authorship on human creators. Section 2(d) defines an ‘author’ in relation to various works but consistently refers to natural persons. In the USA, the Copyright Office has stated its stand that only works generated by human beings are eligible for copyright protection ⁴. 

In the United Kingdom, there is little flexibility, as the United Kingdom’s Copyright, Designs and Patents Act 1988 uses the words “computer-generated” works. Section 9 (3) of the Act states, “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”  But courts still lean towards the requirement of a human factor for claiming copyright, as seen in the case of Thaler v. Comptroller-General of Patents, Designs and Trade Marks^5, where the court said that only a natural person can be recognised as an author or inventor. 

2. Ownership and originality?

Let’s say you use an AI to generate a digital artwork. The tool might have created it, but you gave the prompt, adjusted the outputs, and curated the final version. Do you own it? This is where things become complex. 

Since copyright protection hinges on the idea that work needs to be original, this issue also raises a philosophical question: “Can an output by a machine be original?” AI systems are trained on large sets of data, which means the work could be derivative or transformative. 

Patents and AI 

Patents are meant to reward those novel, useful, and non-obvious inventions that push the boundaries of what is possible. But what if the “inventor” isn’t a person, but an AI  that identified a solution no human would have thought of?

This is no longer a theoretical question. It’s already being tested in courts and patent offices around the world.

One of the famous cases on this issue is Stephen Thaler’s AI system called DABUS, which tried to register a patent with DABUS as the inventor. The United States Patent and Trademark Office (USPTO) ruled that a machine cannot be listed as an inventor⁴. 

Under India’s Patents Act, 1970, the inventor must be a natural person. The Indian Patent Office has not accepted any AI-generated inventions yet. The forms and procedures involved in the application for a patent assume a human applicant as it requires signing a declaration. 

Patent law requires applicants to explain their inventions in a way that others can understand and reproduce. But many AI models’ internal logic is difficult to trace or explain. If the ‘inventor’ themselves cannot fully understand how their AI reached a solution, can they truly satisfy the disclosure requirement? This is an unresolved issue that complicates AI’s relationship with patent law.

Trademarks and AI

On the face of it, it may appear that trademark law must be least affected by artificial intelligence since it is all about brand names, logos, and slogans. But in reality, AI is shaping how brands are created, marketed, and protected. AI can generate brand names and can act as virtual assistants, handling brand interactions. AI tools can instantly suggest unique brand names, logos and a whole brand identity. The question arises, “Can brand identity be registered as a trademark in that case?”

Under the Trade Marks Act, 1999, trademarks must be applied for by a legal or natural person, therefore, there is no recognition of AI as a creator or as an applicant. 

However, AI is a useful tool for protecting trademarks. Brand owners can use AI-driven tools to scan the web for counterfeit goods, logo theft, and brand impersonations. These systems can detect unauthorised use of brand assets as well as monitor social media and the marketplace for fakes. This can potentially make enforcement more proactive and efficient, which is useful in a country such as India, where the volume of small-scale IP violations can be overwhelming for human teams alone. 

while AI complicates authorship in trademark law, it is also helping to safeguard brand value in increasingly sophisticated ways.

Reimagining IP law in the AI era

Artificial intelligence is testing the boundaries of intellectual property law and its core assumptions. The question is no longer if the law needs to change, but rather how soon and in what direction it needs to change. 

One of the biggest gaps in current IP laws is the absence of clarity on how much human involvement is needed to claim authorship or inventorship. Legislation needs to define what constitutes AI-assisted creation and AI-generated creation. This direction can help in determining protection and ownership. 

Much of the confusion around IP and AI stems from the fact that the data on which these AIs are trained is opaquely handled. If AI tools are to be used in IP industries such as film and pharma, then a transparency mandate is necessary. This will help creators and regulators to understand what data the AI was trained on and whether it includes copyrighted or trademarked material. 

India has a massive pool of talent and a growing creative economy, and it can lead the conversation in the global south. India can launch a dedicated AI and IP Law Commission to study the issue and run pilot projects with AI creators to explore regulation. 

Conclusion

With artificial intelligence rapidly transforming the landscape of creativity and innovation, intellectual property law stands at a crossroads. For centuries, our legal systems have been built on the assumption that only humans can create and invent, but artificial intelligence has challenged it. 

Most of the Courts across the world have refused to recognise AI as an author or inventor, sticking to the old philosophy of human mind requirement. Yet businesses and creators have been embracing AI tools that stretch these boundaries. This has created a mismatch between the reality of creation and the laws that govern it. 

Moving forward, reform should not be reactionary, but rather we should proactively reimagine the frameworks of IP laws. This could mean defining new categories for AI-generated works and demanding transparency from the developers. 

Ultimately, AI does not have to threaten human creativity and innovation, it can be an aid to these. However, the law needs to evolve to recognise and integrate AI laws in IP laws. The longer we delay, the more we risk letting outdated laws dictate the terms of the future they were not designed to understand. 

AUTHOR: SARGUN SINGH

References

1. What is artificial intelligence (AI)?, Cole Stryker, IBM, 2024. (Available at: https://www.ibm.com/think/topics/artificial-intelligence) 
2. What is Intellectual Property?, Home, About IP, World Intellectual Property Organisation, 2020. (Available at: https://www.wipo.int/en/web/about-ip) 
3. Ibid. 
4. Copyright and Artificial Intelligence, Part 2: Copyrightability, copyright.gov. (Available at: copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf#page=47.99) 
5. Thaler v. Comptroller-General of Patents, Designs and Trade Marks, [2021] EWCA Civ 1374. 
6. Petition, United States Patent and Trademark Office. (Available at: uspto.gov/sites/default/files/documents/16524350_22apr2020.pdf)