Artificial Intelligence (AI), one of the most popular terms in the modern world, was coined in the year 1955 by Stanford Professor John McCarthy, who defined it as the “the science and engineering of making intelligent machines”. Over the years, this definition has been substantially augmented owing to further developments in the area of science and technology, thereby giving it a wider amplitude.

Artificial intelligence (AI) has been pivotal in driving remarkable progress in technology and the economy. The proliferation and large-scale availability of data, coupled with the dynamic capabilities of contemporary computers, fuels the expansive growth of AI. Yet, this rapid and dynamic development in AI poses a myriad of challenges within the realm of Intellectual Property which include the ascertainment of ownership of patents, copyrights etc., the determination of originality, non-obviousness and so on. For example, take the case of The Next Rembrandt, a computer-generated 3-D–printed painting developed by a facial-recognition algorithm that scanned data from 346 paintings by the Dutch painter Rembrandt Harmenszoon van Rijn through a machine learning process lasting more than a year. Such a case, one of the many, raises prime questions of ownership.

Copyright and patent laws when formulated, did not envisage protecting machine-created subject matter. This lack of clarity around AI creations obtaining IPR protection poses several issues and at present, it remains a matter of debate whether the Indian Patents Act, 1970 as well as the Copyright Act, 1957 are equipped to facilitate inventorship, authorship and ownership by Artificial Intelligence. Since the late 1960s, machines have been creating basic artistic works, and this trend continues. Many of these machine-generated artworks relied on the creativity of the developer, viewing the machine as a tool or canvas, much like a paintbrush or canvas. However, at present, there is a lack of ‘human’ element in creations and inventions and a rise in inventions and creations wholly the works of AI. When it comes to patents as well, one of the major requisites are that to be patentable, an invention must be novel and non-obvious. In the case of AI-generated innovations, it can be difficult to determine whether the invention is truly novel and non-obvious, as the AI system may have been trained on existing data and may have simply combined or recombined existing ideas in a new way. While this may not always be the case, it raises questions about the level of originality required for AI-generated innovations to be considered patentable. Engaging in this procedure of AI entails legal vulnerabilities, notably in terms of intellectual property infringement. The question of ownership regarding content produced by generative AI platforms, whether for businesses or their customers, lacks clarity.

Generative art (art created by or through Artificial Intelligence) is therefore, currently a field in which legal rules need to carefully balance the access to and protection of IPR protected content. AI is a powerful tool for creating works such as films, music, or architectural designs. Such tools are already being offered to the general public for free. The conditions for use of such tools and their output (including sale as nonfungible tokens) vary greatly and can have important effects on the contemporary business models of the artistic community. Some developers are not sufficiently aware of, or are not willing to abide by, copyright protection rules. Others miss out on advantageously structuring the use of their tools through contractual arrangements. Working, together with stakeholders, from this situation towards a more appropriate legal and factual framework for generative art constitutes a worthy task both for authorities associated with IP and for the general discourse on AI protection carve-outs. To fully leverage the advantages of generative AI, businesses too must comprehend these risks and take measures to safeguard themselves. Identifying these challenges therefore prove to be necessary for tackling the issues that arise from the ever-expanding presence of Artificial Intelligence in the modern world.


Adv. Minnu Bridgit

This blog is for information only and should not be treated as an opinion in the matter.