This blog is written by Shravya Mohan, a Second-year law student of The National University of Advanced Legal Studies, Kochi

Brain-Computer Interfaces and The Ownership of Thoughts

Many legal arguments have been sparked by the announcement that Elon Musk's company implanted a Brain-Computer Interface chip in a human. Copyright law is one such area of law that is being introduced. Throughout history, copyright laws have focused solely on human creativity and the unique nature of the content to be safeguarded by copyright, but with the introduction of BCI, there's a debate about who should own the copyright to the technology—the user, the company, or a collective that contributed ideas. This blog discusses these issues and suggests updating copyright laws to keep up with technology.

WHAT IS THE BRAIN-COMPUTER INTERFACE?

"Analyze brain signals in real-time to control external devices, communicate with others, facilitate rehabilitation or restore functions" is what a brain-computer interface (BCI) is used for.[1] The technology analyses brain signals to bypass the usual neural and muscle pathways that are often utilised for specific tasks or communication. The original idea behind the technique was to help those suffering from "locked-in" syndrome, a condition in which paraplegic patients were unable to move any part of their body—not even their eyes—but were still conscious of their surroundings. Users of BCI systems don't use physical movements to generate signals to control computers or communication devices, instead, they intentionally manipulate their brain activity.

HOW DOES BCI INTERPLAY WITH COPYRIGHT LAW?

One of the earliest technologies to question the tacit belief that copyrightable expression must be fixed at the direction of the motor cortex will be brain-computer interfaces or BCIs.[2] By directly receiving thoughts from brain networks, deciphering them, and digitally recording—that is, "fixing"—the thoughts to a digital medium, BCIs will successfully abridge the traditional, biological process of expression.[3] BCIs, which were initially defined as “communication system[s] that [do] not rely on the brain’s normal typical pathways of peripheral nerves and muscles,”[4] are, in essence, “new output channel[s] for the brain.”[5] For the first time, the author does not have to be there for "the fruits of intellectual labour" to flourish. Thanks to BCIs, humans will be able to express and fix their thoughts without the need for the motor cortex, and if these thoughts are sufficiently unique, they should be protected by copyright under current copyright laws.

In brief, brain-computer interfaces (BCIs) enable the manipulation of external devices using only the power of thought. They also facilitate direct stimulation of the brain to promote the formation of new cognitive experiences. Additionally, BCIs allow for the linking of minds and the transfer of data through brain-to-brain communication. Some research even suggests that as individuals gain the ability to perceive previously unnoticeable aspects of the color or sound spectrum, this technology will result in technologically enhanced human capabilities.

CASE STUDY - NARUTO V. SLATER

The story of "Naruto," the macaque photographer who stole a camera and then took a selfie. Due to his creative input into the camera's setup and his purported friendship with the monkey family, which led them to adopt him as one of their own, the owner of the stolen camera asserted that he was the rightful owner of the copyright connected to the photograph. In Naruto v. David Slater et al., No. 16-15469, 9th Cir. 2018, the case was transferred to a US District Court in California when PETA asserted that the photographer had published the image in a book without permission, citing Naruto's copyright ownership. The judges of the US District Court while dismissing the complaint stated that if Congress and the president had intended to allow animals, people, and legal entities to sue, they should have clearly expressed this intention when they authorized it.

For instance, the French Civil Code's Article 514-14 states that "Animals are living beings imbued with sensibility," which is a very subtle way of saying that animals are legally entitled to a personality. According to French law, originality necessitates the "personality imprint of the author."

It's crucial to remember that animals and "AI"-enabled software are not the same thing. As things stand right now, "AI" is incapable of showing curiosity, sensibility, or even personality.

IV. DIFFERENT POLICIES

"The legal rights are granted based on the assumption that those rights can be enforced."[6] Thus, the primary purpose of upholding a legal framework for intellectual property is to enable the imposition of suitable sanctions in cases of is copyright infringement. Historically, copyright enforcement has had difficulties because to technological advancements. As was the case with the invention of photography, the copy machine, and widespread internet access, copyright rules are challenged by artificial intelligence (AI) in general and BCI in particular, prompting us to investigate alternatives. "As technology complicates the enforcement of intellectual property rights, it becomes increasingly critical to have public support for these rights."

During the exploration of alternatives, this paper recognizes four methods that jurisdictions can implement: (1) providing protection for the human author, (2) awarding copyright to the human author upon reviewing the work, (3) permitting copyright protection for work generated entirely by non-humans, and (4) attributing the authorship to the programmer of the device. Those ways are enumerated as follows:

Human authorship after review

Jonathan Baker argues that although BCI-encoded brain signals are eligible for protection under the Copyright Act of 1976, they should only be eligible for copyright if an exceptional effort requirement is established by Congress. This creates a complicated situation where new legislation must be passed by the US Congress in addition to reviewing an existing 1976 statute. According to Baker, "[t]his requirement would grant copyright protection to BCI encoded brain signals only after the author edits or polishes them to remove the spontaneous thoughts and neuronal noise that a BCI device would capture alongside otherwise discernable and copyrightable expression." The author emphasizes that the expense of producing a work solely composed of BCI-encoded brain signals doesn’t substantially increase the cost of reproducing that work. Therefore, granting copyright protection to such signals accordingly does not serve the utilitarian goals of U.S. copyright law. The constitutionally approved utilitarian system serves as the foundation for the author's suggestion. Like the previous approach, this one provides an extra choice for work produced when BCI is interfered with on both the input and output pathways. After considering the Copyright Office's analysis under the guidelines pertaining to AI-generated work, this is probably the best course of action for the United States. An analogous application to work generated with BCI would result in material that is protected by copyright if the artist "modifies material originally generated by... BCI technology to such a degree that the modifications meet the standard for copyright protection" or the human reviewer "selects or arranges BCI-generated material in a sufficiently creative way that 'the resulting work as a whole constitutes an original work of authorship." In this case, however, copyright protection will only cover the "aspects of work authored by humans”.

Authorship to non-humans as a possibility

Some jurisdictions, such as South Africa and Australia, have seen courts decide that non-humans can get intellectual property protection for their creations.[7] In Australia, a federal court decided in 2021 that patent protection is available for ideas created using artificial intelligence.[8] The court reasoned that because the Australian Patent Act defines "inventor" as an agent noun, encompassing both human and non-human entities. Justice Beach declared that it is erroneous to contend that an inventor must necessarily be a human. An artificial intelligence system could be an inventor, but it couldn't also be the owner, controller, or patent holder of a patentable invention in such a situation." In addition, the judge distinguished between copyright and patent law, saying that "no particular feature of patent law would drive a construction of the Act as excluding non-human inventors, unlike copyright law involving the requirement for a human author or the existence of moral rights." Similar to this, but concerning patents rather than copyright, South African IP authorities were the first in the world to grant a patent in 2021 that identified an artificial intelligence agent as the product's inventor. [9]In this instance, the AI that came up with the concept is listed as the inventor on the patent registration, and the AI itself owns the patent.[10] Australia and South Africa offered innovative approaches to patents in both situations, but it is doubtful that this novelty strategy could be applied to the copyright situation with BCI intervention. The closest transposition would be to allow the human author and the BCI equipment to be listed as co-authors of the piece. Though all of this is theoretical at this stage, assigning authorship to the non-human author alone is still an option for the purposes of this analysis. That would not apply to BCI interference, but it might work for AI-generated work. Attorney Sarah Ligon highlights a fascinating caveat to the theory. This arrangement implies that, in cases where copyright protection is relevant to their work, non-human authors—such as robots or artificial intelligence—may also breach copyright. This theoretical framework suggests that in order to guarantee that non-human infringement will have repercussions, granting copyright protection to non-human entities will require the development of a new legal framework. This presents a novel, actionable assertion. "AI artists should consider evaluating the resulting AI work to determine whether it is sufficiently transformative before releasing it to the public," along with recording the creative process when selecting and inputting the underlying art to reduce the possibility of any infringement claims.

Authorship to the programmer

Certain jurisdictions, such as Hong Kong, India, Ireland, New Zealand, and the UK, have taken the stance of giving the BCI programmer authorship. This method was codified in section 9(3) of the Copyright, Designs and Patents Act (CDPA), section 157 of U.K. copyright law, which says: "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. "Corresponding to this, a computer-produced work is described as such under section 178 of the CDPA: "is generated by computer in circumstances such that there is no human author of the work." The U.K. decided to give copyright protection to the person who arranges for the computer to make the work in order to get around the need of all-human authorship. According to Gaudamuz, "granting copyright to the person who made the operation of artificial intelligence possible seems to be the most sensible approach, with the UK's model looking the most efficient." However, because it eliminates the authorship contribution, this method is most likely insufficient for BCI in both input and output channels.

Addressing the legal implications of Brain-Computer Interface (BCI) technology requires close collaboration between lawmakers and judges. They must work together to develop effective laws, interpret existing ones accurately, and innovate as needed to uphold justice and protect people's rights in the face of technological advancements. This collaboration may lead to the development of new legal theories to address the challenges posed by these emerging technologies. Legislators should collaborate with experts to create legislation that effectively regulates BCI technology while promoting innovation and safeguarding individuals' rights, while the judiciary plays a vital role in interpreting current legislation and applying it to BCI cases. Courts may establish precedents and principles addressing the unique challenges presented by BCIs. Specialized courts or tribunals focused on resolving disputes involving cutting-edge technologies like BCIs can enhance the legal system's ability to address complex technical issues.

References:

[1] Guger, C., Allison, B. Z. & Edlinger G. (Eds.) 2013, Brain–Computer Interface Research:

A State-of-the-Art Summary, Springer, Heidelberg (accessed on 06 September 2024)

[2] One may argue that the emergence of artificial intelligence has already challenged this implicit assumption. See generally Andres Guadamuz, Artificial Intelligence and Copyright, WIPO MAG. Oct. 2017, at 14, 19, https://www.wipo.int/export/sites/ www/wipo_magazine/en/pdf/2017/wipo_pub_121_2017_05.pdf [https://perma.cc/ RS5C-QBR9] (“[G]iven enough computing power, soon we may not be able to distinguish between human-generated and machine-generated content. . . . [I]f and when we do get there, we will have to decide what type of protection, if any, we should give to emergent works created by intelligent algorithms with little or no human intervention.”) accessed on 05 September 2024.

[3] See Jerry J. Shih, Dean J. Krusienski & Jonathan R. Wolpaw, Brain-Computer Interfaces in Medicine, 87 MAYO CLINIC PROCS. 268, 271 fig.2 (2012) (detailing the basic components and functions of BCIs) accessed on 06 September 2024

[4] Jonathan R. Wolpaw, Niels Birbaumer, William J. Heetderks, Dennis J. McFarland, P. Hunter Peckham, Gerwin Schalk, Emanuel Donchin, Louis A. Quatrano, Charles J. Robinson & Theresa M. Vaughan, Brain-Computer Interface Technology: A Review of the First International Meeting, 8 IEEE TRANSACTIONS ON REHAB. ENG’G 164, 165 (2000) (emphasis omitted) accessed on 06 September 2024

[5] Ibid

[6] 1 U.S. CONG. OFF. OF TECH. ASSESSMENT, OTA-CIT-302, INTELLECTUAL PROPERTY RIGHTS IN AN AGE OF ELECTRONICS AND INFORMATION, 98 Impact of Technology on Enforcement of Intellectual Property Rights, PRINCETON UNIVERSITY (1986), accessed on 06 September 2024https://www.princeton.edu/~ota/disk2/1986/8610/861007.PDF [https://perma.cc/ZKW2-5625] accessed on 06 September 2024

[7] Thaler v. Commissioner of Patents, [2021] FCA 879, ¶ 226 (Austl.) https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0879; Tom Knowles, Patently Brilliant... AI Listed as Inventor for First Time, The Times (July 28, 2021), https://www.thetimes.co.uk/article/patently-brilliant-ai-listed-as-inventor-for-first-time-mqj3s38mr accessed on 06 September 2024.

[8] Thaler v. Commissioner of Patents, [2021] FCA 879, ¶ 226 (30 July 2021) (Austl.) https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0879 [https://perma.cc/2HLS-99YN] accessed on 06 September 2024.

[9] Tom Knowles, Patently brilliant... AI listed as inventor for first time, THE TIMES (July 28, 2021), https://www.thetimes.co.uk/article/patently-brilliant-ai-listed-as-inventor-for-first-time-mqj3s38mr [https://perma.cc/2CTN-XYNC] accessed on 06 September 2024.

[10] PAT. J., July 2021, at 255, https://iponline.cipc.co.za/Publications/PublishedJournals/E_Journal_July%202021%20Part%202.pdf [https://perma.cc/87N5-VNN3] accessed on 06 September 2024.