IPR And Artificial Intelligence

Posted On - 17 August, 2023 • By - King Stubb & Kasiva

The intersection of Intellectual Property Rights (IPR) and Artificial Intelligence (AI) is one of the most intriguing and complex inventions of the modern-day evolution of technology and law. Intellectual property Rights act not only as a crucial method to protect and empower the discoveries and creations of human cognitive power but also enables the creators to obtain due credit for their work.

Artificial Intelligence (AI) is one of the emerging areas of technology and jurisprudence wherein the dilemmas and debates relating to copyrights, patents and other intellectual property issues are still under development with the major contention revolving around the issue of human efforts and AI generated resources.

Patentability Of Inventions By Artificial Intelligence

There are various essentials that have been listed down by the TRIPS agreement and various other domestic laws which are necessary to be fulfilled in order to obtain a patent such as:

  1. Patentable Subject Matter
  2. New or Novel Invention
  3. Application in industry
  4. Innovative or Inventive Steps

According to various statutes, reports and judgments of the Hon’ble Supreme Court and other authorities, it is a well-accepted principle that only a person can be a holder of any patent in the country.

Therefore, the AI and related tools cannot be given the status of a juristic or artificial person and the same view has been held in the landmark judgment of the Hon’ble Supreme Court in Som Prakash Lekhi V. Union of India wherein it was held that since AI does not fulfil various essential conditions such as the power to sue or get sued, it cannot be considered as a juristic person and the law cannot attribute duties to it. Therefore, patents cannot be granted to any AI generated content.

In order to attain a patent, a necessary human intervention and role is a pre-requisite and therefore, in order to obtain a patent for AI generated content or novelty, it would be necessary to have a human force behind it which shall be eligible to obtain the patent.

Copyright Protection Of Inventions By Artificial Intelligence

Since the advent of content-creating AI platforms in the technological arena, one of the major issues in extending protection to the AI generated content comes under the ambit of copyrights law.

In India, the courts have remained silent on the legal status and protection granted to the AI generated content. There are various challenges to granting any ownership or authorship right to the AI generated content due to the fact that the mechanically generated content has been generated by infringing an already copyrighted piece of work and therefore extending protection to artificially generated content would lead to a breach of copyrights of a party already holding authorship rights on the content.

Secondly, since AI is a non-juristic person, it cannot be sued in its own name, nor does it enjoy the locus standi to sue anyone. Therefore, in order to decide upon the question of granting copyright to an AI generated content, the question of the legal status of Artificial Intelligence would have to be decided first by the legislature.

Lastly, according to the 60 – year rule governing the copyrights of an artistic or literary work and granting protection only till 60 years post the death of the author, the same shall not be applicable due to the perpetual existence of artificial intelligence, therefore defeating the entire purpose of extending copyright protections.

Issues Governing Trade Secrets And Confidential Information

One of the biggest assets for any organization in the present day is its trade secrets and confidential data. Since the boundaries of artificial intelligence are usually not defined, the content generated through the application of various arithmetic algorithms may lead to breach of sensitive and confidential data which may expose the users to potential lawsuits and infringement of the intellectual property rights of the information holders.

Secondly, such exposure of confidential information and sensitive data such as consumer information, trade secrets, healthcare data or other details may cause damage to life and liberty of individuals or overall detrimental impact on the economy at large. The only way to protect such a breach would be proper data protection by organizations and firms along with barriers in the form of non-disclosure agreements with every party who would get access to the confidential data of any party.


Several legal issues have come into place post the creation of Artificial Intelligence software that need to be taken care of before any intellectual property rights can be successfully granted to any content generated by AI.

There is a huge scope of codification of laws pertaining to the legal personality of AI by the legislature along with interpretation by the judiciary.

As the present artificial intelligence system is under evolution, intellectual property rights issues have become increasingly complex and there is a pressing need to create a system of pro-active adjudication of issues along with creation of proper policies so that patents, copyrights and other necessary rights can be granted to the content developed by AI and the protection of consumers is also not hampered.

Since AI has also increasingly become a part of the present economic system, it is crucial to expand and develop the boundaries of intellectual property rights to cover the domain of artificial intelligence and protect the rights of inventors and developers.


Can artificial intelligence own intellectual property?

Despite some increasingly ‘human’ traits, AI is not human and our legal system preserves IP ownership exclusively to humans and their corporate employers (which we recognise as being a separate legal person of sorts).

How does AI affect copyright law?

AI technologies can be used to replicate or mimic existing copyrighted works. The algorithms can analyse and generate content that closely resembles protected works, raising questions about the legality and ethical implications of such replication.

Can AI be patentable?

According to Article 52(2) and (3) of the EPC, AI inventions are not excluded from patentability. They must fulfil the patentability requirements of novelty, inventive step, and susceptibility of industrial application (Article 52(1) EPC).

King Stubb & Kasiva,
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