In 1495, Da Vinci created a robot (automaton) before the word ‘robot’ even existed. That was five and a quarter centuries ago. Think about ten years ago from today and you’d still be thinking about the future.
The “future” has thrust itself upon us. It is not a graduated process which we are smoothly transitioning into, or coalescing into in an osmosis-like manner. It is abrupt, it is unnatural and it is disruptive. The future has been dominating us for the past decade at least.
In an article I authored in 2017, I presented the same diagnosis (though the symptoms described therein exhibited less severity) with a few propositions. My proposition back then was simple: law typically is ‘backward looking’ but the ‘future’ is such that it requires us to recalibrate our framework and conjure up all the legal reasoning prowess to produce a forward looking, future peering branch of jurisprudence.
Earlier this year, in a first, Justice Jonathan Beach of the Federal Court of Australia and South Africa’s Companies and Intellectual Property Commission (CIPC) ruled that artificial intelligence (AI) could be named as an inventor. However, the United States Patent and Trademark Office (USPTO) and the European Patent Office denied the patent to AI and refused to name AI as the inventor. USPTO relied on the US patent law, which uses the pronouns ‘his’ and ‘her’ (which, according to USPTO, could not be used to refer to AI), has a requirement of ‘mental conception’ (which, according to USPTO, lacked in AI systems) and states that inventorship comes with rights (which USPTO said did not exist and was thus not willing to confer the same to the AI in question). This seems more like ‘lifting the veil’ as USPTO was more concerned with tracing the ultimate inventor instead of examining whether the invention satisfied the requirements of ‘subject matter’, ‘non-obviousness’ and ‘usefulness’, etc.
Justice Beach (of the Federal Court of Australia) made some very fascinating remarks in the case including the following:
“The term ‘inventor’ is an agent noun. Like ‘computer’ or ‘dishwasher’ it refers to the agent that does the act denoted by the verb to which the suffix ‘or’ or ‘er’ is appended. It is not limited to a human agent.”
Justice Beach appears to be answering two questions:
- What is the definition of an inventor?
- Who can be an inventor?
Justice Beach views an ‘inventor’ as the ‘doer’ who performs an action and an ‘act-or’ (actor) who may trigger a change and bring about the effect. He uses the reductive form of legal analysis (bordering on ‘open texture’), laying the inventor bare. In legal jargon, Justice Beach provides a ‘functional’ definition of the term inventor, as an inventor (speaking simplistically) does not have to be ‘someone’ – it could be an animated being exhibiting a set of specific characteristics because the definition of the term does not provide so. Justice Beach liberates ‘inventorship’ from biases that we may have and stretches the concept to non-humans. Hence, Justice Beach, through his statement, decimates the monopoly of humans as inventors. He puts the trophy up for grabs and through his reasoning extends the role of inventor to an algorithm run program (the AI).
Justice Beach further stated,
“As there is a requirement to identify an inventor of a patent, the false attribution of inventorship to a human, when the true inventor is AI, has the potential to invalidate the patent. This is therefore an important matter to resolve.”
This statement is particularly interesting. Justice Beach categorically renders AI as something capable of inventing and as the ‘true inventor.’ This is in contrast to the reasoning of USPTO, which seemed to have applied a test akin to the ‘ultimate beneficial owner’ in ascertaining the ‘actual’ inventor. Additionally, Justice Beach seems to suggest that when AI has brought about the effect and invented something, it would be “false” to attribute such an invention to a human being. The judge seems to have granted ‘equal’ and ‘positive’ rights to AI, which is also something the USPTO denied the AI. If we follow the trajectory that Justice Beach has embarked upon, then the next logical thing will be to award ownership rights of the invention to the AI. Before that, let us consider another thing.
In 2011, Naruto took a photo, a selfie to be precise, in a green jungle of Indonesia. Naruto, however, used the camera which belonged to David Slater. Naruto was smiling while he took the selfie. The selfie was a hit, it was available all over the internet and that was when certain people realized that Naruto should exercise copyrights over his selfie, effectively restricting third parties from making use of it. However, before Naruto could pursue this, he had to answer whether he had the right to do so. The matter went to the court. Naruto’s supporters, including many rights groups, claimed that Naruto owned copyrights to his own selfie. That was very natural and logical, irrespective of who owned the camera! However, there was one issue. Naruto was not a human. Naruto was a monkey. The matter went to the US Federal Court where the reasoning of US District Judge William Orrick regarding the US Copyright Act not extending to animals was upheld. Naruto, being a living, breathing being, but not a human being, was denied the ownership of copyrights.
It is puzzling why the US courts took such a conservative approach towards conferring personhood upon animals. It is puzzling because the courts have been very inventive and innovative when it comes to creating legal fiction. The non-sentient, non-living, inanimate ‘companies’ all have separate, identifiable legal personalities. The courts have even blessed personality to a non-existent company of a cobbler.
Justice Beach had also been reluctant when he went on to state the following:
“Some things will not change. For example, the owner of a patent must be a legal person; an AI system cannot own a patent.”
One can only wonder why such caution was exercised. He assigns the role of inventor to the AI, he goes on further and clarifies that when AI invents, humans have no claim, but then he stops just there. Following his logic, we can say that if AI is an inventor, then the AI ‘ought’ to be the ‘owner’ of the invention as well. Because, the term ‘owner’ also refers to the act of owning and fits perfectly within the parameters set by Justice Beach. And so does the word ‘photographer’, which applies to Naruto. Justice Beach and the South African CIPC have, unfortunately, given birth to an ‘inventor–owner’ dichotomy in the field of law where the ‘idea–expression’ dichotomy has created problems for many years.
Why let the controversy prevail? Perhaps the judiciary wants the answer to come from the legislature, or perhaps the answer is not known with precision yet. But then again, Sophia, the robot, has been honoured with a rare citizenship awarded by the Kingdom of Saudi Arabia, despite the fact that she is missing a soul and has a “date of activation” instead of a “date of birth”. More fascinating is the fact that the “Sophia” uses the pronoun she/her for reference to herself.
Another thing that emerges from the foregoing discussion is that different jurisdictions exhibit a different tendency to adopt and assimilate technologies. Moreover, US judiciary seems to be generally more conservative, despite the fact that technological advances have hit similar high-income and developed countries with almost the same magnitude and manner. Globally, there appears to be a general consensus that the relationship of humans and AI should ideally be in the form of “AI for humans”, but some nations, like South Africa, have developed policies which are likely to drive them (and in the next phase, the region) towards “AI and humans”.
There seems to be a disconnect between technology and the law. And as has been witnessed so far, technology always prevails. The future is of coded-beings, a future where ‘reality’ will be like a toy. Terms like ‘synthetic reality’ are already in circulation. But will the keepers of law continue to take a backseat, only to emerge when called for? Should the law stay reactive and only come into action when invoked? Should we wait for Kurzweilian ‘singularity’ to occur and only then do something about it?
Jack Welch famously said, “Change before you have to.”
 Hart, H. L. A. The Concept of Law. Oxford: Clarendon Press, 1961
 The nature of intellectual property rights is that they are negative rights which create monopolies. Negative rights means that a person who owns a certain IPR can restrict others from exercising rights over the IP in question. An analogy in real property is that an owner of a land is capable of restricting others from trespassing on his/her land.
 Salomon v A Salomon & Co Ltd  UKHL 1,  AC 22
 To know more about robots, see my article: https://www.thetau.institute/post/will-robots-be-the-end-of-us
 Kurzweil, Ray. The Singularity Is Near: When Humans Transcend Biology. New York: Viking, 2005. Print.
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