Jul 2, 2020

Intellectual Property Law: A Footing For Artificial Intelligence In Nigeria | Adeniran Oluwabukunmi


Artificial intelligence first made appearance in science-fiction books and movies, like the Metropolis of 1927, in the first half of the 20th century which are believed to have steered the consciousness of mathematicians, scientists, scholars and philosophers to the concept of artificial intelligence. The first humanoid robot, Herbert Televox, was built by Ron Wensley in 1927. Herbert Televox could lift a receiver to accept a phone call, he could also control simple processes by operating switches according to the signals it received. Herbert Televox, however, lacked the ability to speak and was simply humanoid in appearance (1). However, robotics has since then advanced in both appearance and abilities. Sofia is a particularly remarkable creation as she is the first robot to achieve citizenship status (2). Sofia has a family, a delicate appearance and is capable of more than 50 facial expressions. AI is affecting the world’s economy and has become an essential part of the technology industry as it makes appearance across the world. As machines become increasingly capable, it is bound to not only rely on Intellectual Property law but transform Intellectual property concepts, triggering a need for IP law reforms.

 

Technology is advancing at an unparalleled speed. Faster and quicker than we can meet up with or make preparations for. Generally speaking, Technology and Innovation intersect with Intellectual Property rights as they confer exclusive rights to inventions and creations on the inventor or owner of a work, protecting said works from idea theft or expropriation, consequently encouraging inventiveness and out-of-the-box thinking. Today, Technologies are advancing beyond what available Intellectual property provisions can secure. The implication is that law makers are now faced with an obligation to revisit and modify laws suitable for the upsurge in discoveries of new technology and knowledge across the globe.

 

Artificial Intelligence, also called Machine Intelligence, is distinct from Natural Intelligence displayed by humans and animals. Although there is no universally accepted or all-encompassing definition to the concept, it can either refer to the intelligence displayed by machines or a discipline of computer science that is aimed at developing machines and systems, such as robots, that can carry out tasks and chores normally considered to require human intelligence, such as visual perception, speech recognition, decision making and translation between languages. Machine learning and deep learning are two subsets of AI (3).

Is Nigeria ready for AI? Nigeria’s Federal Ministry of Education is making plans to include robotics and artificial intelligence (AI) in the post-basic and secondary education curricula in Nigeria (4). According to the plan, this is aimed at bringing students up to par with 21st century technology and education standards. This is expected to begin with the 104 federal unity colleges spread across the country’s six geo-political zones. While we may argue whether or not Nigeria is ready and why, what is important is that it is time Nigeria keys into AI technology bearing in mind its potential benefits, how it will help citizens to live better lives, how it will upshoot her economy, bringing Nigeria to limelight. Recently, the University of Lagos, in an effort to improve learning and safety in the face of the COVID-19 outbreak took delivery of some robots. Ready or not, it is happening.

 

AI and Patents

According to the World Intellectual Property Organisation (WIPO), since the emergence of primitive AI in the 1950s, researchers have published over 1.6 million AI-related scientific publications and filed patent applications for nearly 340,000 AI-related inventions (5). The impact of AI on Intellectual Property (IP) is circled around patent law and patent protection of AI technologies (6). However, more relevant IP concepts that protect AI are Copyright and Trade secret.

 

Patent protection gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time on the condition that the patentee will publish an enabling public disclosure of the invention at a future date. Patent protection is highly valued among AI developers as it gives the patent owner a monopoly. Hence, competitors who are found to have exploited the patented AI technology will be ordered by the court to cease the act of infringement whether or not they had knowledge of the patent or patented technology at the time of developing their technology. Nonetheless, lack of knowledge may be relevant to whether the court also awards damages or an account of profit.

 

What if inventions are made by an AI system? According to Stephen Hawking, “…there is no deep difference between what can be achieved by a biological brain and what can be achieved by a computer. It, therefore, follows that computers can, in theory, emulate human intelligence and exceed it”.

 

Under the United States Patent Law, inventor is defined as the individual or individuals who invented or discovered the matter of the invention. Many have argued that the law’s references to an inventor as an “individual” could be applied to a machine. However, the US Patent and Trademark Office (USPTO) has ruled that artificial intelligence systems cannot be credited as an inventor in a patent (7). This position is the same in the United Kingdom and in Nigeria. Hence, patent may be claimed by the inventor or the owner of the AI system.

 

 

AI and Copyright

Copyright protects the software programmes which are the “building blocks” of the AI system (8). In Nigeria, computer programs are eligible for copyright protection under literary works provided that they satisfy the requirement of originality, ownership and fixation under Section 1 of the Copyright Act. Copyright protection arises automatically upon creation and extends to the expression of the source code embodied in the software that underlies the AI technology. In contrast to patents, a copyright term is much longer (the author's life plus 70 years) and copyright protection is cheaper and less strenuous since it is not required that the documentation be registered (5).

 

Do AI systems own copyright in their works? Another facet to this discourse is whether artistic, dramatic, literary or musical works that are creations of Artificial Intelligence are protectable under Copyright Law. As AI systems advance, we find them doing things that ordinarily require human intelligence or creativity. A suitable example is E-David, a painting robot, who takes pictures with an added camera feature and making his own decisions, draws original pictures or paintings from these pictures. According to Section 2 of the Copyright Act, provided that a work is not copied, has an element of originality and is fixated, it is protectable. However, the copyright act is silent on whether the author of a work can be anything other than a human. Seeing as AI machines are yet to be recognized under Nigerian Laws, they cannot own copyright.

 

AI and Trade secrets

Trade secrets is highly effective in protecting important business information especially from competitors. Trade secrets trade secrets assist with the non-disclosure of information, which includes formulae, compilations, programs, methods, techniques, processes, designs and codes of various AI inventions (9), which have a quality of intrinsic confidentiality, the secrecy of which is highly valuable to its owner. They are enforced through actions for breach of confidence or, if a non-disclosure agreement or clause exists, breach of contract (5). Like copyright, Trade secrets require no registration to be protectable; rather, trade secret protection arises automatically provided that the trade secret owner can establish that the information is not already in the public and that if it were disclosed to a competitor, could cause real or significant harm to the owner of the secret. Trade secret protection can theoretically last forever, as long as secrecy is maintained and the information is not publicly known.

 

With the advent of AI, computers and machines will potentially create millions of original works which may not be protectable under Intellectual property laws unless amendments are made. This defeats the purpose of Intellectual property which is to encourage ingenuity, protect the production of creative minds and attribute honour to whom honour is due. Hence, the need for Intellectual property law reforms.

 

Written by:

Adeniran Oluwabukunmi.

 

 

 

 


 

References

1. A Brief History of Robotics: The Origin of The Fisrt Humanoid Robot. LUCA Robotics.

2. Stone, Zara. Everything You Need To Know About Sophia, The World's First Robot Citizen. 2017.

3. Artificial Intelligence and Intellectual Property. WIPO.

4. Oluwanifemi, Kolawole. Nigeria may not be ready to include robotics and artificial intelligence in its secondary school curriculum. Techpoint.Africa. February 25, 2020.

5. Nina, Fitzgerald and Andrew, McClenahan. Introduction to the protection of IP rights in artificial intelligence. 2019.

6. Kurzweil, Ray. Intelligent Trademarks. 2008.

7. John, Porter. US patent office rules that artificial intelligence cannot be a legal inventor. The Verge. April 29, 2020.

8. Mayowa, Oluwafunmilayo. Who owns Copyright in an AI Invention? 2019.

9. Andrea, Jeffries, Emily, Tait and Jason, Garr. Protecting Artificial Intelligence IP: Patents, Trade Secrets or Copyrights? 2018.

10. Ijeoma, Olorunfemi and Ikenna, Uwadileke. Artificial Intelligence technology: Is Nigeria ready? Vanguard. April 22, 2019.

 

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