Consortium Legal - El Salvador
  June 5, 2019 - El Salvador

El Salvador: The Adaptation of Intellectual Property to Artificial Intelligence

A few years ago artificial intelligence was a concept applied to nothing else but science fiction films, nowadays, it has become a reality for many companies and industries in the development of their commercial, corporate and industrial activities. Before we start to understand the strengths or weaknesses of artificial intelligence and its perspective from the right of intellectual property, it is considered convenient to conceptualize it.

In this regard, there are several concepts of artificial intelligence; from the more general ones that define it as “Systems that think or act as humans”, to definitions that serve empirical meanings such as “Intelligence carried out by machines”. Personally, I prefer to refer to it as a concept that in addition to technical meets its main objective, which is why we define artificial intelligence as “The combination of algorithms raised with the purpose of creating systems or machines that have the same capabilities and skills than the human being”.

Although this article does not aim to fully develop the subject of artificial intelligence, but its implications in Intellectual Property, it is relevant to know the main advantage and disadvantage that its practical application presents in various areas of the global economy. Its main advantage is closely related to the economic aspect that its application generates in the industry of certain types of companies, since it simplifies and accelerates each of the operational and administrative tasks which have traditionally been executed by human labor. A clear example is the implementation of artificial intelligence in customer services that are currently provided from websites or even by telephone, which allows to provide services 24 hours a day, every day of the year. This advantage is summarized in greater productivity and efficiency at a lower cost.

Its main disadvantage is based on the reduction of the emotional quotient in some activities that traditionally, not only imply an operative function, but also imply a reasoning based on moral values, good customs or even religious, as for example, educational services; although they can be provided by technological means, they lack the emotional aspect that a teacher can transmit to his/her students… a council or a word of encouragement.

According to the World Intellectual Property Organization (WIPO), intellectual property is defined as all creations of the human mind such as inventions, literary and artistic works, as well as symbols, names and images used in commerce. Intellectual property is divided into two categories: Industrial property, which covers patents for inventions, trademarks, industrial designs and geographical indications; and copyright, which covers literary works (for example, novels, poems and plays), films, music, works of art (for example, drawings, paintings, photographs and sculptures) and architectural designs.

For its part, WIPO also defines intellectual property rights, which are similar to any other property right, that is to say, they allow the creator or owner of a patent, trademark or copyright, to experience the benefits derived from it or of the investment made in relation to a creation.

As can be seen from the definitions expressed by WIPO, the property derived from the artificial – nonhuman intellect, which is a prevailing reality in a large number of countries worldwide, is not included. Exemplifyingly, an entity of artificial intelligence is in the capacity to create commercial models that translate into brands of products or services, to create patents or to develop literary or artistic works.

Predominantly, the creation of works through artificial intelligence could have very important implications for copyright. Traditionally, ownership of copyright over computer-generated works was not in question because the program was nothing more than a tool to support the creative process, very similar to pencil and paper.

The challenge of most countries in the world is to try to adapt their legislations to the technological advances that artificial intelligence involves, especially, as the right of intellectual property will be adapted so that these creations are protected by the corresponding patentability, registration or deposit mechanisms. Likewise, based on the fact that artificial intelligence has the capacity to create new creations, legislation must be adapted so that works that may arise from these entities are protected.

Creative works benefit from the protection of copyright if they are original, taking into account that most definitions of originality require a human author, so it is worth asking, what luck do those created by artificial intelligence have?

In most jurisdictions, the Central American legislation included, only works created by a human being can be protected by copyright. However, in the latest types of artificial intelligence, the computer program is no longer a tool but takes many of the decisions associated with the creative process without human intervention.

Surely, things will become even more complex from the protectionist point of view, as the use of artificial intelligence by companies, merchants or artists that produce creative works becomes widespread, which will further blur the distinction between the works of art made by a human being and those made by a computer. It is for this reason, the importance of adapting the regulations in force.

The lack of legislation applicable to artificial intelligence not only discourages the creation of artificial intelligence entities, it also discourages these entities from creating as a final purpose. No matter the professional environment in which we all work, it is vital to accept and adapt to the technological changes that artificial intelligence entails, adapting not only our regulatory framework, but also through education in our new and old generations; thus achieving an interaction between human and artificial intelligence according to our personal and business needs.

Promoting the protection of intellectual property emanated from artificial intelligence is imperative, since in the first place, the progress and welfare of humanity depend on its ability to create and invent new works in the spheres of technology and culture. Secondly, the legal protection of new creations encourages the allocation of additional resources for innovation. Thirdly, the promotion and protection of intellectual property stimulate economic growth, generate new jobs and industries, and enrich and improve the quality of life.

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