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About seven decades ago, we considered only humans as possessing specific forms of higher intelligence. However, the narrative has changed as machines now possess the ability to communicate in decipherable speech. These machines make decisions without human intervention, express emotions, compose and sing songs and process much more information than humans. This ability is generally regarded as Artificial Intelligence (AI). Siri, Alexa, and Google Assistant are relatable examples of AI.
Robots are proliferating as a major form of AI. Accordingly, the International Data Corporation (IDC) revealed that robots import all over has increased from 100,000 in 2000 to 250,000 in 2015. The share of jobs requiring AI has also increased by a mind-blowing 450% since 2013 as shown by Adobe. Moreover, according to Juniper Research, global spending on AI is also estimated to grow from $2 billion in 2018 to $7.3 billion in 2022.
Given the ingenuity and capital that characterizes the production of AI in its entirety, the protection of these inventions by relevant Intellectual Property laws are non-negotiable. These protective laws are twofold namely: laws protecting AI invention and production of Artificially Intelligent machines on one hand and the protection of possible creative works, ideas and inventions that may be put forward by AI machines on the other hand.
The Intersection of AI and IP: Patents, Trade Secrets, Industrial Designs and Copyrights
Robots, more or less, are inventions and as such their production are protected under IP laws. It is noteworthy that in protecting their financial and intellectual interests, robotics companies employ multifarious Intellectual property approaches. Developers of robotic technology can register their distinctive technology under local patent laws. Therefore, they possess exclusive rights to the use and reinvention of the Artificially intelligent machine.
Patent protection enables the developers to get regulatory approval on one hand. On the other hand, they can secure their investment interests and invention strategy after commercialization of the machine. As stated by WIPO, this has its advantages and disadvantages.
According to WIPO, many robotics companies use patent documents to figure out latest technological developments and gain insights about competitor strategies. This invariably means that each competitor in the industry can spy on the latest inventions and the scientific methods involved in reaching such end products. While this increases competition, spying on other companies patents can also allow for altering of the processes and reverse engineering. Moreover, the United States Supreme Court decision in Alice Corp. v. CLS Bank International 573 U.S. 134 S. Ct. 2347 (2014) made it evident that not all abstract technological concepts or processes are patentable.
Many robotics industries, therefore, seek a better IP instrument to protect inventions namely Trade secrets. Article 39 of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement regard trade secrets as secret information so long as such information:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
Trade secrets are preferred because they are better means of protection and are cost-effective. However, they possess their own demerits as they are susceptible to leaks by employees. Other IP instruments used to protect robotics research and development include Industrial designs that protects the shape and form of robots, computer codes and copyrights protecting software.
Does IP Protect creative works and inventions of Robots?
The event and possibility of a robot producing independently or in conjunction with a human an invention, an idea or any intellectual property raises a bigger question. Can such intellectual property receive protection in favor of the robot?
In answering these questions, jurisdictional differences ought to be taken into account. Currently, the general trend in most nations is that inventions by robot cannot be patented. This is because only human creations are allowed to lay claim to patents under relevant IP laws. Flowing from this, an Australian court ruled in Acohs Pty Ltd v Ucorp Pty Ltd  FCAFC 16 that a work generated with the intervention of a computer could not be protected by Intellectual Property law because it was produced independently of human intervention.
However, countries like Japan and Korea are making laws to make IP rights extend to robots. In New Zealand, the 1994 Copyright Act allows patent rights to extend to robots even though they considered such invention as belonging to the human owner of the robot. Arguments have been raised in support and against robots possessing IP rights to their inventions or creative works. These arguments include bolstering technological advancement and the possible disintegration of human intelligence respectively.
Finally, if Artificially Intelligent Machines are bestowed with rights to own patents for invention, will they also be liable if other intellectual properties are infringed upon? A European Parliament Resolution titled Civil Law Rules on Robotics considered this question and answered in the affirmative thus suggesting the legal personality of robots. Complexities come hand in hand with innovation and as disclosed in a 2018 article by the World Economic Forum, the fact that these questions have arisen at a point where the position of the law is yet unsettled, relevant stakeholders should prospectively consider these challenges and propose a system that efficiently and effectively provide solutions.
Adebanjo Olamilekan Olamide
For IPTLCUI Media Team