By Clarisse Mideva
The African Centre for technology Studies (ACTS) is currently leading a consortium implementing the Green & Digital Innovation Hub (gDIH), which amongst others, is advancing AI innovation in Kenya by empowering MSMEs and Innovators with services such as Test before Invest, Access to Finance, Skills and Training & Innovation and Ecosystem Development. gDIH supports the development of sustainable AI solutions and ensures that MSMEs and Innovators can leverage AI to drive growth and foster green and digital transition while aligning with global trends. gDIH also supports the MSEs and Innovators to protect their innovation through intellectual property rights.

“AI is the new electricity. I can hardly imagine an industry which is not going to be transformed by AI” – Andrew Ng, Landing AI and deeplearning.ai.
Artificial Intelligence (AI) has become the driving force behind modern innovation and technological development, permeating every sector from agriculture, healthcare, e-commerce, finance, banking to energy and all other sectors.
AI is a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence, with limited or no human intervention. The rapid advancement of AI is reshaping our world from the way we work to our daily lives. From self-driving cars to virtual assistants like Alexa and Siri, facial recognition, advanced web search engines, autonomous drones and more, AI is revolutionizing the way we do things. AI systems are emulating human cognitive functions, and are even generating innovations and creative works sometimes entirely independent of humans.
AI is a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence, with limited or no human intervention. The rapid advancement of AI is reshaping our world from the way we work to our daily lives. From self-driving cars to virtual assistants like Alexa and Siri, facial recognition, advanced web search engines, autonomous drones and more, AI is revolutionizing the way we do things.
AI systems are emulating human cognitive functions, and are even generating innovations and creative works sometimes entirely independent of humans.
As AI continues to reshape how humans create, innovate and invent, understanding its intersection with Intellectual Property (IP) has never been more critical since IP rights and the current IP systems were designed to foster human creation and innovation. AI is currently the most prolific new technology in terms of the number of publications and patents. The concept of AI emerged in the 1950s. It was first mentioned during the Dartmouth Summer Research Project on Artificial Intelligence in 1956. Since that time, the World Intellectual Property Organisation (WIPO) in its WIPO Technology Trends report highlights that innovators and researchers have published over 1.6 million AI related scientific publications and filed patent applications for nearly 340,000 AI related inventions.
With AI increasingly becoming more autonomous and the required human input is decreasing, it has triggered many questions such as: Does AI innovation and creation fit into the current IP system?
The Basics of Intellectual Property
According to WIPO, Intellectual Property (IP) refers to creations of the mind. IP consists of different rights that are meant to protect innovators and creators and allows them to be able to control and receive incentives for their innovations and creations. They include:
- Patents: which protect new inventions such as processes, machines, methods, apparatus etc.
- Copyright: which protect literary and artistic works such as software, books, music, art etc. Copyright extends protection to literary works, musical works, artistic works, dramatic works, audio-visual works, sound recordings and broadcasts. The work has to be original and written down, recorded or otherwise reduced to material form.
- Industrial designs: Protects the aesthetic appeal of products e.g., the design of a solar panel.
- Trade secrets: which protect the confidential information your business owns that is of commercial value; and
- Trademarks: These protect words, phrases, letters, numerals, shapes, colors, logos, labels or a combination of these that a company/business may use. The Trademarks Act in its definition, states that a Trademark is a distinguishing guise, slogan, device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof whether rendered in two-dimensional or three-dimensional form.
- Plant breeders rights: which protect new varieties of plants that are distinguishable, uniform, and stable;
- Geographical Indications: which protect products that have a specific geographical origin and possess qualities or a reputation that are due to that origin; and
- Traditional Knowledge and Traditional Cultural Expressions: which safeguard the cultural heritage of indigenous people and local communities.
AI Data and IP
The current success of AI and the continued development of AI relies on the recent availability of good quality training data. It learns from training data rather than explicit programming.

Over 1.3 billion pictures are uploaded on Instagram each day, 34 million videos are posted on tiktok every day, 500 million tweets per day, 350 million picture uploaded on Facebook daily and 500 hours of video footage on YouTube every minute. These platforms and other sources generate a staggering volume of user-generated content daily thus being a rich source of data for AI systems.
Data per se is not protected by the classical IP system. Raw data is often considered a mere fact and is not eligible for protection. Under the Copyright Act, facts are not protected because copyright only applies to “original works/original expression of ideas”. Data such as telephone numbers, football scores, and dates of birth are facts and are not original works as they represent objective, real-world information that exist independently and do not possess any creative expression. There are however situations where a compilation of facts may be protected if the creator arranged the facts in a creative and original way e.g. Travel guide books, cookbooks, directories, databases etc. While the individual facts within the compilation may not be protected, the way the facts are selected and arranged can be protected by copyright. That said, the law of confidence and trade secrets are often used to protect data that has economic significance. These protections however depend on the measures taken to keep the data confidential.
A key concern has been whether the use of IP protected works in training AI models constitutes IP infringement. There are several ongoing cases against top global ICT companies for IP infringement with the plaintiffs alleging that their IP works (books, photographs, research, art etc.) were used to train AI models. For example, Getty, which is a well-known image licensing service, filed a lawsuit against the creators of Stable Diffusion alleging unauthorized use and infringement of its watermarked photograph collection. Another example is where some authors have filed a suit against an ICT company claiming that their works have been used to train data, resulting in the improved quality of existing generative AI tools which when prompted, can produce detailed summaries, analyses and outlines of their works. They argue that the company should license their works hence protecting them & other authors from being exploited without consent, credit, or compensation.
AI developers may thus inadvertently or intentionally use IP protected works raising questions about unauthorized use and whether IP laws should evolve to address this.

AI Algorithms and IP
AI algorithms are a set of instructions that enable machines to analyze data, learn and make decisions. The algorithms perform tasks that would generally require human intelligence.
Algorithms are considered too abstract and are regarded as a mere mathematical methods or mental acts and thus not patentable due to the lack of a technical effect.
With the uncertainties surrounding patent and copyright protection of AI algorithms, Trade Secrets are the only viable option for protecting AI algorithms. Trade secrets protect sensitive information that is commercially valuable and limited to a group of persons. They are not limited to a set term of protection however, the rightful holder of the information should take reasonable steps to keep the information secret e.g. by using Non-Disclosure Agreements, Non-Compete Agreements, implementing robust IT security infrastructure among many other ways.
While Trade secrets do not grant exclusive rights like patents and cannot be enforced against those that independently discover the secret, they do provide legal remedies in cases of unlawful acquisition and misuse. If a Trade secret is stolen or its confidentiality is breached, the rightful holder can get compensation and an injunction for the violation.
The challenges surrounding protection of AI algorithms under the IP system have sparked discussions about the need for sui generis systems that are tailored specifically for AI to ensure that they remain commercially viable while encouraging innovation.
AI Assisted and AI Generated output and IP
The IP system was designed to foster and reward human creation and invention. Key word being “human”. Most current legislative frameworks require a human inventor or creator. In Kenya, Industrial Property Act No.3 of 2001 defines an inventor as “the person who actually devises the invention as defined in section 21 and includes the legal representative of the inventor”. The Copyright Act Cap.130 also defines an author as “the person who first makes or creates the work”. Similarly, in the US, the US Copyright Office and the courts decided that, “authorship” is synonymous with human creation. This means a work cannot be registered for copyright without a human author.
Unlike the US and many other countries, UK Copyright law has an explicit provision for computer-generated works. The UK Copyright Designs and Patents Act 1988 states that: “A computer-generated work is “a work generated by computer in circumstances such that there is no human author of the work (S178)”, “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken (S9)”.
The above provisions leave no doubt regarding ‘persons’ for the purposes of being entitled to enjoy IP protection. You might be familiar with the famous ‘Monkey Selfie Case’ where a monkey took a few pictures using a camera set up on a tripod by a British photographer. One of the issues that arose was whether non-humans can own copyright and the court ruled that a monkey cannot be considered an author within the meaning of the US Copyright Act
AI has been used to generate creative works from music, images, books, artwork and even films. Questions on who owns these works (is it the company that owns the AI system, the programmer or the user?) are still being debated as many countries do not yet recognize AI generated works as copyrightable.
AI has also assisted inventors in the invention process or has constituted a feature of an invention. The role of AI in the invention process is increasing, and there have been cases where the applicant has named an AI application as the inventor in a patent application. A notable case is the “DABUS”, a type of connectionist artificial intelligence, was indicated as inventor.
The UK Supreme Court determined that a patent application cannot name AI as an inventor as it is not a person hence the inventor requirement was not met. DABUS was however acknowledged as an inventor in South Africa and many noted that unlike some countries, South Africa only undertakes formal examination of its patent applications and not substantive examination hence no substantive decision regarding the merit of the invention, or the applicability of an AI system as an inventor, opening the door to new interpretations of AI’s role in innovation.
Policy discussions on AI and IP have been held and some people feel that if AI was recognized as inventor or creator, it could lead to rapid advancements in fields such as energy, pharmaceutical, health, agriculture etc., while some have raised concerns about ethics, accountability and the value of human creativity. Many governments are also exploring drafting specific laws that address AI inventorship and creativity. The rise of AI as a creator or inventor challenges the current IP Laws. As countries explore different approaches, harmonized global standards may be important in shaping a forward thinking future for AI and IP.
REFERENCES
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Lavrichenko, Michelle, Thaler v. Vidal: Artificial Intelligence—Can the Invented Become the Inventor?
South Africa was wrong to patent an AI’s ‘invention’ – David Cochrane and Christopher Mhangwane, 2022
Mezzanotti, F. and T. Simcoe. 2023. Innovation and Appropriability: Revisiting the Role of Intellectual Property.
P Nirwan, ‘Trade Secrets: the Hidden IP Right’ WIPO Magazine December 2017 https://www.wipo.int/wipo_magazine/en/2017/06/article_0006.html accessed 11 February 2021.
WIPO (2023). AI Inventions Factsheet. (WIPO, Geneva). https://www.wipo.int/export/sites/www/aboutip/en/frontier_technologies/pdf/WIPO_AI_Inventions_factsheet.pdf
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