ADAPTING THE LAW FOR A WORLD IN MOTION

Abstract

One of the oldest of all legal frameworks, IP law, once inextricably bound to the physical and the human, is being challenged like never before. From music compositions and patents conceived by artificial intelligence and genetic engineering that alters genomes, to digital worlds that dissolve national boundaries, IP law’s underlying tenets-originality, ownership, and geographical boundaries-are in a state of disarray unimaginable by the jurists that shaped them. This blog explores the ways in which IP law needs to transform in order to become an effective provider of protection for innovation, an age of incessant technological disruption.

INTRODUCTION

IP law developed in an era of printing presses and pharmaceutical laboratories. At its heart lay the premise that one human author is responsible for one original work; that an inventor develops one new invention; and that one trader uses one distinctive mark for one well-known business. The Statute of Monopolies, 1624, the Statute of Anne, 1710, and the Trade Marks Registration Act, 1875 (and, much later, others) respectively, all responded to the prevailing commercial and creative conditions. That age is no more. An ML algorithm can now generate a patent draft within seconds after reading millions of previous judgments.

A CRISPR edited organism may blur the line between natural phenomenon and patentable invention. A viral social media sound clip may traverse the earth, remixed and relabeled, in the process blurring copyright authorship and platform liability. IP law needs to catch up, not in legislative text but in jurisprudential assumption. This blog discusses three lines of pressure: AI and authorship, biotechnology and patentability, and digital commerce and territoriality.

AI and the Authorship Crisis:

However, probably the most philosophically troubling challenge to IP law posed by AI is the authorship of AI generated works. IP laws throughout the world require human authorship to meet their most basic requirement of copyrightability. The Delhi High Court affirmed that moral rights accrue to a human creator’s persona in Amarnath Sehgal v. Union of India (2005). The US Copyright office has denied registrations to computer generated works that do not have a human author, and AI can generate complex, economically viable outputs of any form –paintings, music, poetry- DALL-E, Midjourney, GPT-4 etc.

Two main schools of thought exist on this issue. One is the instrumentalist view, arguing that economic incentives should drive IP protection – if legal rights protect AI generated output then more money will flow to the creation of AI, so the developer or implementor of the AI should own the copyright. Another is the personhood view, which argue that labor theory or Kant’s theory of artistic autonomy apply to AI generated works in none of the ways required by Lockean theory of intellectual property and Kant’s theory of autonomous expression. There is no provision for computer-generated works in India’s Copyright Act, 1957, although the definition of “author” in section 2(d) implies a human source. India will undoubtedly need to update its laws. The UK’s Copyright, Designs and Patents Act, 1988 offers a possible blueprint; it provides for copyright in computer generated works, and grants ownership of them to the person who makes the necessary arrangements. However, this simply side steps the more profound issue of whether AI is actually the ‘author’.

The patent system is in a similarly dire crisis. The DABUS saga, where an AI system was named as the inventor on patent applications filed around the world, was ultimately denied in the U.S., U.K. and European Patent Office, each because the term inventor was understood to require a natural person. Only South Africa’s Companies and Intellectual Property Commission briefly recognized it as such, a decision widely seen as a mistake and procedural blip rather than a substantive legal finding. Indian law, under its 1970 patent act, defines person such that read with General Clauses Act of 1897 it may or may not include a legal person, but doesn’t contemplate a machine. The evolutionary task is evident, in this instance, for the first time in the history of the patent system: what will it be from here-the machine as tool, as co-inventor, or some other capacity.

Biotechnology, Gene Editing, and the Boundaries of Patentability

The arrival of the CRISPR-Cas9 gene editing system has reopened debates on patentability of life. The basic questions originally put forth in Diamond v. Chakrabarty (1980), when the US Supreme Court held that a genetically engineered bacteria constitutes patentable subject matter, are now compounded exponentially. CRISPR offers accurate, inexpensive and scalable edit of a gene sequence in plants, animals, and possibly human germlines. Legal system is failing to cope with such rapid advancements.

In India, Section 3(b) of the Patent Act, 1970 clearly lays out that inventions whose chief use would be contrary to public order, morality or would cause serious prejudice to human, animal or plant life shall not be patents. Further, Section 3(j) excludes plants and animals in whole or any part thereof and seeds. Therefore, patentability of CRISPR edited organisms specifically gene-edited plants with an aim to make them resistant to drought occupies a debatable zone. If the edit produces a phenotype which is no different from what would have naturally selected, the product may be analogous to a product of nature, which is generally not patentable. If, however, a new function has been conferred, then the product deserves to be patented.

Biological Diversity Act, 2002 makes another complex dimension requiring benefits-sharing with the local community, for access to any biological resource obtained from India. However, as the field of synthetic biology moves towards engineering completely new organisms rather than modified versions, IP law will need to determine if its structure as applied to machines and chemical compounds is appropriate for life itself.

E-Commerce, Territoriality, and Platform Liability.

At the heart of IP law lies the presumption of territoriality. A patent granted in India will only protect the same in India and not in Pakistan; the mark secured in Germany will afford no protection against infringement in Brazil. This may be a sound assumption in an age of physical goods but becomes unsustainable with digital commerce. When a song can be streamed instantly from India to one hundred and ninety different countries; a SAAS (software-as-a-service) delivered from a particular jurisdiction to clients in all parts of the globe; and an NFT is traded on and transmitted via a global and de-territorialized blockchain-then the presumption of territoriality begins to break down. The evolving Delhi High Court view on intermediary liability, which has now been enshrined in the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, employs a system of differentiated safe harbor principles for significant social media intermediaries which require their establishment of a grievance redressal mechanism, proactive discovery and deletion of infringements, and close cooperation with law enforcement agencies.

 The proactive injunctions in cases such as UTV Software Communication Ltd. v. 1337X.to (2019) and the subsequently granted John Doe injunctions demonstrate the Indian courts’ capacity to interpret a traditional injunctive principle and apply it to the digital sphere. However, at a speed at which data can be uploaded, downloaded, copied, and seen by millions before a court can step in-a retrospective remedy can only fail. Indian IP law needs to move toward proactive algorithmic enforcement; however, the algorithm itself will need to be moderated by appropriate due process.

CONCLUSION

Evolutionary IP isn’t a metaphor; it’s an imperative for our institutions. In all three areas we looked at on this blog-AI authorship, biotechnology and digital commerce inventorship- the problem has been the incompatibility of existing statutory intellectual property rules with the fluid, unbounded, non-human nature of 21st century invention. The answer is not to dismantle IP-the economic theory of incentives that underlies the IP system is strong. The answer is to adjust and adapt the existing IP system through reasoned, evidence-based arguments that will inform policy development.

India is at a crucial turning point on this issue. Because of its expanding technology sector, vast creative industries, and amazing biodiversity, India is one nation that is well positioned to assume a leadership position. Moreover, India has already shown its ability to apply its public-interest focused judiciary to difficult issues of intellectual property in the context of Novartis AG v. Union of India, 2013. What India needs now is the vision to write appropriate legislation for future technologies, and the judiciary must learn to ask, “What must the law be,” not just “What is the law?”

The IP legal regime has undergone transformations in the past- from protecting guild monopolies to providing incentives to invent. It evolved from regulating print to managing the internet. The IP system will again adapt to the emergence of AI, synthetic biology, and the digital globalization of business. We shall see if the adaptation will be proactive or reactive.

REFERENCES

Statute of Monopolies, 1624 (UK).

Statute of Anne, 1710 (UK).

Trade Marks Registration Act, 1875 (UK).

Amarnath Sehgal v. Union of India, 2005 (30) PTC 253 (Del.).

Copyright Act, 1957 (India), s. 2(d).

Copyright, Designs and Patents Act, 1988 (UK), s. 9(3).

Patents Act, 1970 (India), s. 2(1)(s); General Clauses Act, 1897.

Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022); Stephen L. Thaler v. Comptroller-General of Patents, [2023] EWCA Civ 1412 (UK).

Diamond v. Chakrabarty, 447 U.S. 303 (1980).

Patents Act, 1970 (India), ss. 3(b), 3(j).

Biological Diversity Act, 2002 (India).

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (India).

UTV Software Communication Ltd. v. 1337X.to, CS(COMM) 724/2017 (Del. HC 2019).

Novartis AG v. Union of India, (2013) 6 SCC 1.