The concept of artificial intelligence (AI) is a global phenomenon that has taken over every aspect of life. AI is the possibility and capability of computer systems to perform human-designed tasks with little or no errors. Early innovators and researchers of AI believed that human intelligence and behaviour could be neatly copied and translated by intelligent machines that had been designed to do so. In Nigeria and globally, AI has been widely accepted and indoctrinated across various fields of life.

It is an open argument whether the results issued by AI systems are their original thoughts or the programming commands originally embedded in their database by their programmers. This has led to several posers on the validity of IP materials developed or created by AI. Can AI possess intellectual property rights? Who owns the IP rights over a given material developed by AI? Is it the AI or its programmers?

Relationship between IP law and AI

The law is trite that IP rights grant exclusive rights to owners over inventions and contents created and developed by them. These rights empower and authorise inventors and creators of IP works to derive all forms of benefit from their creations, including the right to institute an infringement action for unauthorised use. Conventionally, this is the bedrock of IP law, however, can this apply to AI-generated inventions? To answer this question and others, the emphasis will be on patent and copyright, which are the core areas of IP law that are most affected by the AI insurgency.

Under patent laws, it is generally required that an inventor must be mentioned in the course of filing a patent application. A patent application will be filed unsuccessfully in the absence of a named inventor. This was put to the test when Stephen Thaler filed patent applications across multiple countries designating DABUS, an AI system owned and created by him, as the sole inventor.

Every patent office and court that has examined the issue so far has ruled that DABUS is not entitled to be named as an inventor on a patent application as the law requires a natural human to be named as an inventor. For instance, Section 2 of the Nigerian Patent Act provides thus:

Subject to this section, the right to a patent in respect of an invention is vested in the statutory inventor, that is to say, the person who, whether or not he is the true inventor…

Section 5 (1) (f) also provides thus:

(1) A patent shall be granted by issue to the patentee of a document containing-

(f) where appropriate, the name and address of the true inventor.

Furthermore, the European Patent Office concluded that the inventor of a patent must be a human because the “family name, given names, and full addresses” of the inventor must be named. Based on the above, it can be deduced that an AI system cannot be named as a patent inventor.

Similarly, Section 2 of the Nigerian Copyright Act provides as follows:

(1) Copyright shall be conferred by this section on every work eligible for copyright of which the author or, in the case of a work of joint authorship, any of the authors is at the time when the work is made, a qualified person, that is to say-

(i) an individual who is a citizen of, or is domiciled in, Nigeria; or

(ii) a body corporate incorporated by or under the laws of Nigeria.

The Copyright Act clearly states that a copyright author must be a qualified person, not an AI system. There is also an assumption that an author must be a natural person since the validity of copyright is tied to the lifetime of an author. This cannot be said for AI systems that do not possess human attributes.

While it has been established above that an AI system cannot be an inventor of a patent or an author of a copyright work, this does not mean that inventions and works created by AI systems can never be protected under IP laws. Consequently, it is important to distinguish between AI-assisted content, where AI is merely used as a tool to create an invention or work, and AI-generated content, where an invention or work has been generated by an AI system with limited or no human input.

IP protection may be obtained over AI-assisted content, as there is human involvement. In this case, where a natural person (an inventor) incorporates the use of AI in their inventions or works, this can be likened to the use of electronic tools and should not be a barrier to IP protection due to obvious human involvement.

Whether AI-generated materials with minimal or no human involvement should be accorded IP protection is more controversial, and will depend heavily on the applicable legislation in each jurisdiction.

IP ownership of AI materials

IP ownership is important due to the plethora of rights it confers on an inventor or an author as the case may be. It has been widely considered that since AI systems do not possess legal capacity, they are deemed incapable of owning IP rights. The question is who owns the IP rights over works created by AI systems. It can be argued and agreed that the owner of the AI system should retain the ownership; the system developer who has coded the AI system; the trainer of the AI system; the user or operator of the AI system; or some permutation of the above.

It is also possible to assign IP ownership through contractual provisions. For instance, the terms of use for OpenAI’s services, which include ChatGPT and DALL-E, expressly assign the IP rights to any AI-generated content to the user:

“As between you and OpenAI, and to the extent permitted by applicable law, you (a) retain your ownership rights in Input and (b) own the Output. We hereby assign to you all our right, title, and interest, if any, in and to Output.”

The best means of tackling these unresolved posers is through enactment of laws. Most of the existing IP laws were enacted prior to the inception of AI. The US Copyright Office has published guidelines on works containing AI-generated material, stating that “When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application.” Based on these guidelines, where an AI system produces text or image solely based on a prompt from a human, the output will not be protected by copyright.

The UK Copyright, Designs and Patents Act 1988 (Section 9(3)) provides that in the case of a literary, dramatic, musical or artistic work which is computer-generated, the author (and the first owner of the copyright in the work) is “the person by whom the arrangements necessary for the creation of the work are undertaken”.

Ukraine has arguably gone further, having amended its copyright law in December 2022 to grant special rights over non-original output created by AI systems. These rights either belong to the individual who has the software licence that created the work or the software owner.

Protection of AI creations under Nigerian laws

Nigeria, on the other hand, is yet to enact AI-specific laws, however, there are a plethora of sector-specific legislations that regulate AI-related components. Laws regulating data protection and privacy, cybercrime, IP, and consumer protection also regulate AI in Nigeria.

AI goes in pari passu with IP laws. This is because the programming code through which AI is invented can be said to be subject to IP protection. These codes, once published, are classified as copyrights. The Copyright Act is essential in regulating AI affairs in Nigeria relating to IP. The Act protects eligible works such as literary works, musical works, artistic works, cinematograph works, sound recordings, and broadcasts. Any AI original materials that fall within the mentioned works are entitled to copyright protection.

Furthermore, AI-related materials that are eligible for IP protection can be protected as trademarks, designs, and patents. The names, logos, mottos, and slogans are classified and registered as trademarks. In Nigeria, currently, AI-related inventions are not registerable as patents; they are at best registered as business methods (which is a form of patent).

It is worth noting that the relevant IP laws in Nigeria attribute ownership and rights to a natural person. Currently, Nigeria has yet to enact or domesticate any laws regarding AI ownership, thereby leaving the issue to the interpretation of the courts. The Copyright Act authorises the Nigerian Copyright Commission to demand codes and access to any copyright database of an AI creator where it is suspected that the AI was developed using copyright materials without consent.

Although there is no specific law regulating AI in Nigeria, the Nigerian government has taken major steps in establishing regulatory frameworks on AI in the country. The National Information Technology Development Agency (NITDA) announced in 2022 that it was seeking the contributions of stakeholders to enable the development of the National Artificial Intelligence Policy (NAIP).

In March 2023, the NITDA announced that it had completed the first draft of the NAIP. In August 2023, the Federal Ministry of Communications, Innovation and Digital Economy (FMCIDE) announced steps to expand on the draft NAIP by developing a comprehensive National Artificial Intelligence Strategy (NAIS).
In August 2024, the Federal Minister of Communication, Innovation, and Digital Economy released the draft NAIS. The NAIS provides a roadmap for developing a robust framework that will support the ethical and responsible use of AI and launch Nigeria as a global leader in the AI space. It is worth noting that the considerations mentioned in this article are not exhaustive.

This is a co-published article originally published on WIPR.

ARIPO Office closed during the holidays

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