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August 6, 2022
IP framework for protection of work created by an AI mechanism.
Kangan Roda is Partner at IlluminIP, an IP boutique firm offering a complete range of services in India relating to contentious and non-contentious Intellectual Property (IP) issues. The key areas of Kangan’s practice include Intellectual Property Rights – trade marks, copyright and designs. She has represented acclaimed companies from sectors like Fast Moving Consumer Goods (FMCG), Pharmaceuticals, Food & Beverages (F&B), Information Technology, Banking and others.
Q. On the personal front, why did you choose to specialise in IPR?
After having wet my feet in mostly all streams of the legal profession during law school and after that, I found myself drawn towards IPR the most.
Since something new is being penned every day, taking the world forward through innovation, protecting the innovation and the innovators’ interest is something that intrigued me — the back-end process, you know. Because of IPR relevance in today’s time specially in promotion and protection of research, innovation, and start-ups, I strongly believe that it plays an important role in any country’s economic development.
Unlike other statutes and streams of laws that are mostly bound or specific to our country, IPR thanks to provisions of the Madrid protocol also opened doors for the Indian IP experts to provide their services not just in domestic ambit but almost to all countries world-wide. The vast international field of play was one of the main reasons I chose to specialize in it.
Having said that, and having realized that IPR not only touches the higher end of the economy but also each and every fragment of the economy, I firmly believe that India is yet to realize IP’s full potential.
Here I would like to refer to a quote by Shakespeare, which was quoted in one of the judgments and it completely changed the way I look at IPR:
“Good name in man and woman, dear my lord, Is the immediate jewel of their souls: Who steals my purse steals trash; ’tis something, nothing; ‘Twas mine, ’tis his, and has been slave to thousands: But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.”
Q. During the COVID-19 pandemic situation, there are some essential innovations taking place across the world in the tech and medical spaces to provide much-needed relief to populations. Do you think IPR can be a hindrance to more and more people getting access to such essential products?
Well, this is a tricky one. It’s sort of a double-edged sword. With the innovations taking place around the world in especially medical space due to COVID and the pace with which it is happening, I think that IPR while playing an important role in more than one way also acts as a hindrance in getting those innovations out in the open for the public to utilise.
Having said that, it is extremely important that the intellectual property is protected but there are always ways to regulate it better in special circumstances such as this one.
The protection of the Research & Development/process involved in the making of the medicine/drug one, takes time and two, increases the cost of the drug for procuring such protections.
I believe for the pharmaceutical industry, these aspects must be taken care of by way of strategic policies and laws in the field of IP, which may help public to access the essential products faster and at a cheaper price.
Q. We are in the midst of an Artificial Intelligence boom. What are some of the challenges that AI is posing for the IP system?
The answer can be two-fold.
One, since we see AI already taking over basic jobs from humans and us seeing software advancement every day to try to cut on human errors and taking over their roles in certain industries. I don’t see that happening in IP system anytime soon. I am sure that the registration process and filings will soon be flawlessly atomized but when it comes to expertise and advisory no form of AI can take over the human mind. We IP experts have trained ourselves to find the right method, means and form to help another human protect its creation or concept by using the prevailing law in various shapes and structure, which only a human can comprehend.
On the other hand, ironically, there is another challenge posed by Artificial Intelligence for the IP system which is to distinguish between work created by humans and work created by machines itself. The current IP framework helps humans protect their IP rights which includes patents, copyright, industrial designs, and trade secrets but does not include extension of such protection to the machines. It is therefore going to be a need for the future to device a framework for protection of work created by an Artificial Intelligence mechanism itself.
Having said that, who knows that one day I will work on protecting such a technology unknowingly that may one day take over my job, as there are no limits to innovation. Hope it does not come to that though.
Q. We recently held a webinar during which the chief speaker, Hon’ble Justice Prathiba Singh of the Delhi High Court, described copyright law as similar to “space”, saying that copyright law has no limitations and that its full potential has not been realised. In your opinion, in a nutshell, what are the further additions that can be made to the copyright laws in India and maybe in the international context too?
Copyright law is indeed like “space” which has no limitations. Copyright subsists in a work as soon as the original work is created, which means that as soon as you type words (literary work), click the shutter on your camera or mobile phone (photography), apply paint to canvas or paper (artistic work) or lay down tracks for your next hit (musical/cinematographic work), you have acquired a copyright.
Most people are not aware of their own rights and therefore, the works are exploited both commercially and otherwise without the knowledge of its rightful owner. It is for this reason that better enforcement laws pertaining to copyright, to protect one’s copyright should be added both in India and internationally.
Q. As a young lawyer, have you experienced any India-specific problems pertaining to IPR?
Yes, in India, there is a tremendous problem pertaining to IPR which is the lack of knowledge among people regarding their own rights to protect their Intellectual Property, which at times leads to the exploitation of their work/research and innovations. There is a substantial gap in this system.
Though now our government is taking extensive steps in this directions and introducing multiple opportunities for start-ups and small enterprises to support them in protecting their IPR.
Q. The pandemic has forced shopping malls to shut down and most businesses are transitioning to online models as customers seek to get everything at their doorsteps. What relevance would IPR have in this major transition of businesses?
We have seen an exponential increase in e-commerce during the COVID and is expected to increase post COVID period as well.
I cannot say if IPR’s relevance has increased any more than it already was apart from every business whether small or big getting their IP registered, there has been an increase in the number of trade mark applications for sure but more than that this transition in business model has had a very interesting and relevant impact on enforcement of IPR.
Specifically, territorial jurisdiction pertaining to trade mark and copyright infringement suits. With the landmark judgment delivered by the Delhi High Court in the suit titled Ultra Homes Construction Private Limited Vs. Purushottam Kumar Chaubey and Ors. (commonly referred to as “Ultra Homes Judgment”), there has been a major shift in the territorial jurisdictions in IP infringement suits.
Our judicial precedents have established that every click made by a costumer for purchase is an acceptance of a contract. Applying the said principle, each click/purchase made by any person shall give rise for an independent cause of action to the holder of trade mark or copyright, in case of any violation of their rights. This opens a pandora box of forums, having jurisdiction to entertain suits for infringements especially with the mass reach of the e-commerce industry.
Another interesting aspect to the entire gamut of territorial justification, especially in the COVID-19 era is a shift towards digital courts from physical courts. While complete digitization of the Indian judicial system is a distant dream however, a movement in the said path has also opened a lot of other possibilities.
Q. On a personal level, how are you adapting to the changes in professional environments brought about by the pandemic and the lockdown? What do you like to do when you are not working?
On a personal level I have come to realize that as unprecedented as the times are right now, we all at some-point needed this break that the pandemic forced us to take allowing us to contemplate and review our choices on personal and professional front. Personally post the first month of complete lockdown and when things started to get back on track and work commenced, I felt more energetic, encouraged and had a new perspective on a lot of things which I would have done differently say if I did not have the contemplation time forcefully handed to me by COVID-19.
On a more professional front, we operate a paper-less office, which has been a blessing for us in the times of the pandemic and the lockdown. All our files are electronically maintained which makes accessing the records effortless and efficient. Honestly, I am amazed to see how well technology can be utilized to cater to one’s everyday functioning, when properly equipped. Having said that, adapting to the professional environmental changes has been smooth for me.
I am a strong believer of “Necessity is the mother of invention”, and therefore, adapting to the changing times is need of the hour.
To answer the second part of your question, when I am not working, I love to go out for nature walks and I am quite passionate about photography. I try to catch up on what’s trending in terms of movies/ web series and spend as much time as I can with my loved ones and my dog Noddy, a Labrador.
