Artificial Intelligence: Is the Software Programmer Zeus to call AI as Hercules?
Artificial Intelligence: Is the Software Programmer Zeus to
call AI as Hercules?
Introduction
The impact of artificial intelligence
(AI) is evident and the jurisprudential stances are yet to be developed to the
extent which could serve current legal disputes and upcoming situations. Moderately
it may be said that the jurisprudence will be developed in its expected form only
on the basis of disputes which the human civilization will face. However, it
may be said that the increasing uses and implications of AI keep forwarding the
legal thinkers to a situation where in everybody’s answer is regarded as a hypothesis
followed by numerous synthesis. Though the AI generated machines or computers
are used in various sectors but it is just the beginning. It may be argued that
the failure of identifying and legally characterizing AI is because AI is in
its primary level. Till now, to what extent AI can work is dependent upon the
capacity of human intelligence but the future is unknown though presumable. Still
AI is not capable of thinking but one day it will do so. In these circumstances, a jurist or legal mind
may presume a situation as a science fiction writer and give solution to that
situation as a lawyer with having both side arguments. The journey of science
toward a fully developed AI is going on irrespective of all odds. Considering
today’s activity of AI it may be said that the human beings will suffer from apathetic
time in the era of fully developed AI system. The
discussion on the scope of AI to claim ownership of the products generated by
it is made by focusing several questions i.e. whether AI can be regarded as “thinker”
in the present context so far, whether has the capacity to satisfy concept of
property etc. Keeping it in mind, the scope of AI to be covered by intellectual
property (IP) law in the light of the objects, purposes, established principles
of IP laws is also required to be discussed.
Artificial Intelligence:
The discussion of the basic concept of artificial intelligence necessarily demands explanation
of “intelligence” and “artificial” separately.
The definition of “intelligence”
appeared to be both subjective and objective and thus no single definition has
been accepted unanimously. However, the following definition of intelligence
may be taken into consideration:
A very
general mental capability that, among other things, involves the ability to
reason, plan, solve problems, think abstractly, comprehend complex ideas, learn
quickly and learn from experience. It is not merely book learning, a narrow
academic skill, or test-taking smarts. Rather, it reflects a broader and deeper
capability for comprehending our surroundings—"catching on,"
"making sense" of things, or "figuring out" what to do.[1]
The word “artificial” defined as
something made or produced by human beings rather than occurring naturally,
especially as a copy of something natural.[2]
The
definitions of AI usually cover what the things it can do and the method or
process of doing those things. In a well put definition it is provided that AI can
be both the intelligence of machines and computer science with the purpose of
creating intelligence through intelligent agents or rational agents and the
intelligent agent works as a system that perceives a given environment and acts
in such a manner which maximizes its chance of success.[3]
The acts
which AI performs are usually associated with human beings. However, the range
of AI to act may differ based upon the working place. Moreover, AI may be
categorized as weak AI and strong AI. Weak AI connotes computer simulated
intelligence wherein the computer is an instrument for investigating cognitive
process and strong AI connotes a process which is intellectual and has self-learning
capacity. Computers having strong AI can understand through right
software/programmes and can optimize their own behavior on the basis of their
former behavior and experience.[4]
The primary
focus may be put on the question whether AI can think or not. This question is
important as because the capacity to think make the difference in between a
true intelligence and non-intelligence. Therefore, the question requires proper
attention.
The
development of AI is still under process and it may be said that it has a long
way to go before call it a thinker as human beings. The theory as provided by
the computationalism[5] is that human level
intelligent behavior is possible to be implemented in such manner that the
artificially implemented intelligence would become reality. However, Computationalists
also agreed that the current generation electronic computers are thinkers or
have genuine intelligence but these machines are suffering from various
behavioral deficits. [6]Thus, AI cannot think like a
human being can do.
Additionally, two other
theories i.e. dualism and mind-brain identity theories do not leave any scope to
recognize artificial computational implementation of intelligence as thought.[7]
In light of the above
discussion, it may be said that AI still cannot satisfy the requirements of
intelligence to the full extent but it can be said AI is achieving such to a
limited level. Now, the discussion may be focused on the features for which AI
is considered as an intelligent entity. It may be pertinent to say that these
features create new challenges to intellectual property law.
Eight important
features of AI systems have been identified which are: creativity,
unpredictable results, independent and autonomous operation, Rational
intelligence, evolving, capable of learning, collecting accessing and
communicating with outside data, efficiency and accuracy and lastly “Free
Choice” goal oriented. [8]
All the AI systems do not contain all the eight features at a time and some AI
are more like computer software. By using all these eight features the AI
systems are not only solving complex problems not only in the industrial sector
but also in other sectors in several ways.[9]
But whether it can do those things without associating human minds deserve some
attention.
AI, as it is now, is not a
single man’s work rather different persons are involved in different stages to
make an AI work. It is said that there are at least eight types of stakeholders
involved in making an AI to work. Those stakeholders are: the software
programmers, data suppliers, the trainers/ feedback suppliers, the owner(s) of
AI system, the new employers of other players, the operators of the systems, the public, the
government, the investor and the AI system.[10]
All those stakeholders have the eligibility to claim protection under
intellectual property law according to their contribution to the AI system as
their contribution is unique in nature. But who can claim his or her ownership
on the product generated by the AI or has the AI have scope to get ownership?
Who can get ownership of intellectual
property?
It is said that an AI can produce something which would get protection
under intellectual property law if the same was produced by a human being. The
reality is an AI has no legal capacity to claim for such protection under the
present legal structure.
As it is appeared, a work of art is copyrightable if it satisfies three
criteria, namely: creativity though a minimum amount, fixation, and
originality. An AI in a given environment can produce something which will
satisfy all those criteria but none of the legal systems over the world does
permit an AI to get copyright over its work and the same is true for patent.
The very common definition
of intellectual property connotes it is a creation of mind. Necessarily, the
word “mind” used here means a mind of human being. Except human being, no one
can claim the protection or ownership under intellectual property law
irrespective of its intelligence. It can be said if AI is not a thinker being a
non-human then an AI cannot have mind in the light of common understanding. Even
if a non-human generated a product and if that non-human has mind in a sense
may not be able get ownership of that product. A very recent case of U.S.A.
jurisdiction established this principle.
The Ninth Circuit of USA
in 2018 held it clearly in case of Naruto et al v. David Slater that animals,
other than humans, cannot sue for copyright. In the judgment, several cases
have been cited which were decided by the Supreme Court of US and made it clear
that the US legal system allowed only human to get protection under
intellectual property laws.
The U.S. patent law[11]declares that whoever
invents or discovers any new and useful process, machine, manufacture or
composition of matters, or any new and useful improvement thereof, may obtain a
patent. The European patent law[12] declares that if the
invention or discovery is new, involves an inventive step and is susceptible of
industrial application then a patent will be granted. Under European
jurisdiction the question patentability does not depend upon the fact that an
invention is made with or by artificial intelligence. But U.S. patent law makes
it clear that a non-human cannot get patent.
However, European Parliament
Resolution of 16 February 2017 with recommendations to the Commission on Civil
Law Rules on Robotics (2015/2103(INL)) provides article 18 as follows[13]:
“Notes that there are no legal provisions that
specifically apply to robotics, but that existing legal regimes and doctrines
can be readily applied to robotics, although some aspects appear to call for
specific consideration; calls on the Commission to support a horizontal and
technologically neutral approach to intellectual property applicable to the
various sectors in which robotics could be employed;”
All the countries who are signatories of WIPO Convention
and member of WIPO follow almost same standard.[14] Under this standard, a
non-human cannot get the protection of intellectual property law.
Therefore, under the legal regime any kind of AI has no
scope to claim protection over any product generated by it.
Who
Is the Owner of Intellectual Property Generated By AI In the New Era of Machine
Led Creativity?
The answer is difficult under the present legal
regime considering the multiplayer model. But it is evident that the AI system
cannot claim ownership under the existing laws. But theoretically, if the
“Multiplayer Model” takes into consideration then it can be said any of the
players has the scope to claim ownership over the invention.[15]
The software programmers have the capacity to get ownership over an AI. To
understand whether he can get the ownership over the products generated by AI
requires more analysis of the intellectual property law under “law and
economics theory”, “the personality theory” and “Locke’s theory on labour”. This
theoretical aspect is discussed below from a jurisprudential point of view.
The law and economics theory finds that promotion of
production of scientific and cultural goods ultimately promotes economic
efficiency. The production of scientific and cultural goods gets promoted only
when the users pay in return for using such goods and the inventors or creators
can claim such payment for their products when they have ownership over the
products under the intellectual property law. Therefore, it is said that one of
the purposes of intellectual law is to incentivize creators and inventors by
granting them exclusive rights to intellectual products by preventing others
from using their goods without permission or payment.[16]But
an AI system does not need such incentive and the concept of incentive thus
render meaningless regarding AI. Therefore, the AI systems have no eligibility
to have ownership under intellectual property law.
The proponent of personality theory is Hegel and
Hegel argues property rights are a means for developing and realizing one’s
personality.[17]He
also argues that “an idea belongs to its creator because the idea is a
manifestation of that creator’s personality.”[18]Hence,
AI also fails to demonstrate its personality through its idea as personality is
only attributed to human.
John Locke is the proponent of Labour theory and he
wrote that “every man has a property in his own person; this nobody has any
right to but himself. The labor of his body and the work of his own hands, we
may say, are properly his.”[19]Accordingly,
the Locke’s labor theory implies that an inventor has a natural right to the
result of his labor as it is the labour of his mind and soul. Under this
theory, all the persons who are involved with AI are liable to be remunerated
as per their contributions. Here, the personality theory has some relevancy.
Locke’s theory cannot be implemented without taking consideration of
personality theory. Hence, the scope of ownership in favour of AI remains as
narrow as possible.
In the light of the above discussion it may be said
that the AI systems has no scope to get ownership over the products which has
been generated by them. If so, then who will get the ownership? In a
multiplayer model, every stakeholder making an AI to work has the scope to
claim the ownership over the contribution he or she made. But the ownership
over the final products generated by AI depends upon the legal framework of a
state under which jurisdiction it falls.
Moreover, if an AI is given lawful ownership over
the products generated by it then a lot of legal issues will rise, such as, can
anyone file a suit against AI under tort law or contract law or criminal law? Can
AI pay tax? etc.
Though all these questions are now hot topics for
scholars and they are trying best to find a legal solution but yet it cannot
say they find solutions.
Conclusion
The artificial intelligence is a reality but it is
appeared that the human kind is not prepared enough for it. Still the notion of
AI is in primary level and it is unknown whether a demon is summoning or not.
Even more, the limit on working area of AI is required to fix if we want an
protected future.
However, under the present legal regime, the legal
provisions have not been modified or amended by considering the contribution of
AI till today. Thus, it is appeared that the efforts to find out legal status
of AI in the present legal regime have no unanimous conclusion but adequately
such efforts are helping to identify what would be the status of AI. It can be
assumed that the expected modifications of law will bring “not seen by anybody”
like effect on legal systems, economy and society.
Might be the endeavor of AI will create a new socio-legal
structure and in the world of fully developed AI the human beings will be
characterized as “Titans” and computer software as “Zeus” so far. But human
civilization has been experiencing such endeavor of rendering any being as
“god” and this is not fearless one.
Therefore, the law has very important role i.e. to
fix the future. Hence, before asking whether AI should be given legal status it
must ask, considering the overall impact, whether AI should be allowed to be
developed to that far wherein the term “legal status for AI” comes.
[6]Hauser, Larry. Artificial Intelligence, The Internet Encyclopedia of Philosophy, ISSN 2161-0002.https://www.iep.utm.edu/art-inte/.Last accessed on 30.04.2018.
