Introduction

The three forces of artificial intelligence (AI), Biopiracy, and global data capitalism are rapidly converging and challenge the assumptions underlying today’s intellectual property (IP) law. No longer grounded on visions of imagination and ingenuity by humans, IP systems struggle to address an era where algorithms create art, companies capture value from the Indigenous genomes, and data about cultures flow freely on the internet. As these developments occur, scholars of law, policymakers, and those who advocate change are compelled to ask if existing IP paradigm approximations are up to the challenge, or if they have to be redesigned at the fundamental level.

I. The Authorship Crisis of the Age of AI

Traditional IP paradigms are grounded on the presupposition of identifiable human authors. Copyright, to give an example, is predicated on originality and fixation in material form, by a natural-person author. But AI models such as those of OpenAI’s ChatGPT or DeepMind’s AlphaCode have begun to generate texts, images, and software with few to no immediate human agents involved. Such works, at times indistinguishable from works produced by human beings, enter into a liminal zone.

U.S. courts have mostly held that works by non-humans cannot be covered by copyrights. In Naruto v. Slater, the Ninth Circuit held that an AI macaque could not sue for copyright infringement of the selfie it captured.^[1] Building on this justification, courts and the U.S. Copyright Office have dismissed works made by AI as unprotectable.^[2] But if AI-generated works soon become prevalent—and it has only just done so—and this puts much content into the public domain by default, this might be beneficial to the public, but it raises questions of incentivization and of ownership where the development of such systems is by and is profitable to companies.

In addition, restriction of human input to one prompt or group of outputs makes it indeterminate if it is sufficient to create authorship. The growing utilization of AI along with other industrial and artistic endeavors means that IP law must evolve to either acknowledge the aid of machinery or redefine the degree of contribution required by the human factor.

II. Appropriation of Traditional Knowledge and Biopiracy

Also at issue is traditional knowledge and genetic resource use under the guise of innovation. Better referred to as “biopiracy,” this practice involves companies or scientists extracting biological material—such as plant genes, microbes, or individuals’ DNA—from indigenous peoples, only to patent products created as an end result.^[3]

For example, the patenting of the neem tree or the medicinal properties of turmeric illustrate the way patent systems of the West always ignore the collective origins and the traditional nature of Indigenous knowledge.^[4]These practices are facilitated by IP systems that are novelty-driven and disclosure-oriented, discounting oral cultures as well as non-Western epistemologies.

Moreover, digitization of biological information—i.e., through genomic databases and biobanks—has enabled so-called “digital biopiracy.”^[5] These databases are now being scoured by companies for profitable traits without consent or fair recompense to source communities. The Nagoya Protocol on Access and Benefit-sharing, an international treaty under the Convention on Biological Diversity, is meant to cap such activity, but enforcement is patchy^[6].

Legal scholars have urged the extension of IP law to acknowledge “cultural commons” or collective authorship to protect traditional knowledge systems.^[7]Such extension would entail both doctrinal reform as well as philosophical redirection towards pluralistic, fair models of ownership.

III. The Rise of Digital Capital and Data Colonialism

In this day and age of the virtual world, data has become the richest resource, on par with oil. But data is not extracted from the earth like oil; it is culled from people’s habits, decisions, and identities. The majority of this harvesting is done on populations of people living in the Global South where government regulations are either lax or easy to evade^[8].

Companies like Meta (Facebook), Google, and Amazon amass huge repositories of behavioural data to sell it for advertising, AI training, and predictive analytics. The process—which has been referred to as “data colonialism”—repeats patterns of resource extraction from the past, with value flowing from the periphery to the center^[9].

Current IP frameworks fail to address this imbalance. In some nations, there are database rights, but these protect data compilers, rather than data subjects themselves.^[10] Individuals whose data is input into AI systems receive no reward or acknowledgement for their “involuntary labour” to fuel virtual economies. Emergent conceptions of law like those of “data dividends,” data cooperatives, and redistributive accounts of data work as labor^[11] each place themselves to more equitably share the benefits of capitalized data. Each is presently theoretical, however, and must transcend strong resistance from entrenched corporate interests.

IV. Redefining Ownership in the Post-Human Economy

The three convergent crises of AI authorship, data colonialism, and biopiracy signal an underlying problem: the concept of ownership under IP law is ceasing to be determined by the reality of production and value generation. When algorithms produce without awareness, where ancient knowledge is applied without credit, where individuals’ behaviors are collected without consent, the initial rationale for IP—compensating work, incenting invention, and ensuring equity—collapses.

A redesigned IP system must make room for collective and non-human creativities. The system must extend both economic imagination and normative imagination to make space for Indigenous epistemologies, data justice values, and post-human agency. That may mean building rights-based modalities of community, ethical AI licensing, or genomic research models using “open consent”.

Moreover, there is a growing need to decolonise IP law per se. Arising from the colonial centres of Europe and America, modern IP systems have always been constructed to protect individual creators and capitalist companies.^[12]They never had it at heart to protect community systems of knowledge or non-Western innovation patterns. But as global trade and networked media spread these structures across the globe, their exclusions became only more intense.

V. The Way Forward

IP law reform is both political and ethical, as much as it is technical, in the era of AI and digital capital. Multilateral institutions like the World Intellectual Property Organization (WIPO) must engage the voices of marginalized communities, the Global South, and the Indigenous peoples while developing future agreements. National parliaments must develop adaptive IP systems that match the tempo of technological change. And civic society must continually struggle to achieve fair access, representation, and recognition under the knowledge economy

High stakes are involved. Letting things remain the way they are, current IP law will only continue to empower abusive data practices, entrenching global imbalances, stifling innovation, but not driving it. But with imagination and people-focused policymaking, we can make an IP system that values both algorithms and origins—a system that is able to capture the plural, multifaceted nature of twenty-first-century creativities.

Author: Khushi Mishra, 2nd Year (B.B.A LL.B.), ABVSLS CSJM UNIVERSITY, Kanpur

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^[1] Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

^[2]U.S. Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, (Mar. 2023), https://www.copyright.gov/ai/ai-policy.pdf.

^[3] Vandana Shiva, Biopiracy: The Plunder of Nature and Knowledge (South End Press 1997).

^[4] GRAIN, Patents on Life: The Neem Tree Case, https://grain.org/en/article/545-neem-patents.

^[5] James Boyle, Fencing Off Ideas: Enclosure & the Disappearance of the Public Domain, 131 Daedalus 13, 18–20 (2002).

^[6] Nagoya Protocol on Access and Benefit-Sharing, opened for signature Oct. 29, 2010, https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf.

^[7] Rebecca Tsosie, Reclaiming Native Stories: An Essay on Cultural Appropriation and Cultural Rights, 34 Ariz. St. L.J. 299, 307–312 (2002).

^[8] Nick Couldry & Ulises A. Mejias, Data Colonialism: Rethinking Big Data’s Relation to the Contemporary Subject, 20 Television & New Media 336, 336–349 (2019).

^[9] Id. at 340.

^[10] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases, 1996 O.J. (L 77) 20

^[11] Glen Weyl et al., Data Dignity: A New Way to Think About Data, RadicalxChange (2019), https://www.radicalxchange.org/media/blog/data-dignity-a-new-way-to-think-about-data/.

^[12] Keith Aoki, Distributive and Syncretic Motives in Intellectual Property Law (With Special Reference to Indigenous Peoples’ Rights), 74 Tex. L. Rev. 1, 18–20 (1995).

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