Nowadays, technology has developed so rapidly that things we thought would be impossible just a few decades ago have actually been among us, changing our way of life. One of these is the technology in relation to the human brain, also known as brain interfacing, or brain-computer interface (BCI). However, some experts have pointed out that brain interfacing might have some conflicts with the current IP Law, specifically patent and copyright, if developed further and applied in real life. So, what are brain interfacing and its intertwined aspects with copyright and patent laws?
When talking about Elon Musk, electric cars and super spaceships must be one of the things that pop up the first in people’s minds. However, for experts in biology and technology, that might not be true.
For them, it’s Neuralink – a breakthrough technology for the brain that Elon Musk has developed in recent years.
Basically, the Neuralink project is built to develop a ‘link’ or neural implant that allows the user to “control a computer or mobile device anywhere they go.”
The initial goal of this technology is to help people with paralysis to regain independence through the control of computers and mobile devices. These devices are designed to give people the ability to communicate more easily via text or speech synthesis, to follow their curiosity on the web, or to express their creativity through photography, art, or writing apps.
Not just Elon Musk but Facebook and other big tech giants also have plans for a game-changing BCI technology that would allow for more efficient digital communication.
Nonetheless, with the recent breakthrough of Neuralink, there has been a rising concern about brain interfacing and its potential conflicts in determining IP rights holders, as well as other problems.
So, what exactly is brain interfacing, and could there be problems with this technology and the IP system?
Brain interfacing
A brain-computer interface (BCI), sometimes called a brain-machine interface (BMI), is a direct communication pathway between the brain’s electrical activity and an external device, most commonly a computer or robotic limb. BCIs are often directed at researching, mapping, assisting, augmenting, or repairing human cognitive or sensory-motor functions. Implementations of BCIs range from non-invasive (EEG, MEG, EOG, MRI) and partially invasive (ECoG and endovascular) to invasive (microelectrode array), based on how close electrodes get to brain tissue.
Research on BCIs began in the 1970s by Jacques Vidal at the University of California, Los Angeles (UCLA) under a grant from the National Science Foundation, followed by a contract from DARPA. Vidal’s 1973 paper marks the first appearance of the expression brain-computer interface in scientific literature. Due to the cortical plasticity of the brain, signals from implanted prostheses can, after adaptation, be handled by the brain like a natural sensor or effector channel.
Following years of animal experimentation, the first neuroprosthetic devices implanted in humans appeared in the mid-1990s. Recently, studies in human-computer interaction via the application of machine learning to statistical temporal features extracted from the frontal lobe (EEG brainwave) data have had high levels of success in classifying mental states (Relaxed, Neutral, Concentrating), mental-emotional states (Negative, Neutral, Positive) and thalamocortical dysrhythmia.
The intertwined aspects between BCI with copyright and patent laws
The rapid development of brain interfacing has left many potential legal loopholes that should be addressed and taken more seriously by all related organizations.
Specifically, we should not just focus on what can brain interfacing brings to humanity but also on the potential impacts of it, both good and bad.
This is because although brain interfacing can boost the creativity aspect that is critical to the development of IP assets, specifically patent and copyright, it also decentralizes the sovereignty of an individual in their innovation and creation.
When a brain interfacing technology is involved, it usually comprises multiple individuals. Not just in regards to this technology but nowadays, most creations, whether it is in the forms of music, book, invention, etc., the creators usually do not consist of only 1 individual.
It is a team effort.
Consequently, brain interfacing technology enhances this trend, not downplays it. With that being said, when there are multiple inventors, and creators in a kind of virtual space with no specific agreement, it is hard to determine the authorship or inventorship since all of the efforts used to make that creation are merged in the BCI.
Not just the problem of finding the correct author or inventor in a BCI project, many experts have also pointed out that there is a potential risk that tech giants might use the technology to misappropriate the creation as they have direct access to the technology and may conduct illegal actions without anyone knows about it.
Inventor, creator, owner?
As we have already known, nowadays, the creator of something is not automatically the owner of that work.
In fact, cases where the creator is also the owner rarely happen anymore as most of the works created by the inventors/creators automatically belong to the company that hired them to make that work a reality.
There is no unfairness here as the company is the one who hires them and pays for the project, as well as their salaries and even bonuses.
As the current legal structures already contain the ability to assign the rights of the individual to an organization, company, or group and have the trend to spread it further, to a point where the individual’s creator is actually the rarer case, the implication of this to brain interfacing is the same.
On this matter, Saumya Kapoor, an IP attorney at Adira Legal in Delhi said: “Hence, in the case of protection of creations developed via brain interfacing, the owner might have to be determined by according protection to not just one autonomous individual, but towards a more enhanced non-individualized ownership. This will lead to a system that favors corporate ownership of creativity. For creations attributed to brain interfacing, another issue that could arise is determining the owner in case of an anonymous worthy contribution. Protecting the rights of such owners might prove to be challenging and we might have to take recourse in protecting the inventors as john doe or jane doe in such cases.”
She adds: “Another way in determining ownership maybe if artificial intelligence is allowed to be listed as an inventor, as brain interfacing patents may also come within the same umbrella. Essentially, the final output may be created by AI after accumulating all the ideas from the other brains in the brain net and then transferring a refined version of this concoction of ideas to the receiver brain. Thus, patent laws have to take into account the possibility of including and allowing AI to be listed as an inventor. In any case, an AI-dependent world is inevitable in the future.”
Avanee Tewari, a senior associate at Chadha & Chadha in Delhi, comments that with brain interfacing, a group of individuals’ thoughts would be protected, instead of just an individual’s intellectual property.
Considering the matter from an IP perspective, the intellectual property of the entire brain nets such as multiple brains connected together via computer interfaces would be the subject of protection, not an individual’s thought and idea.
Tewari said: “With respect to the patent system promoting the progress of science and useful arts, it would continue to do the same, but the patent systems would need to be more robust than ever to include several possibilities of claims from all the brains in the brain net contributing to the final output. Nowadays since there is much talk about the possibility of AI being listed as an inventor, the same may lay a path for brain interfacing to merge into the patent laws. In a way, the final output is being created by an artificially intelligent system, including machine learning algorithms, that is then transferred to the final brain via BCI. Keeping in mind the fact that more machines are being created with better learning capabilities and autonomous thinking, granting patent rights to AI-generated inventions, including the inventions that are a result of brain interfacing, would act as a catalyst for superior improvements in every field, which would have otherwise been impossible to obtain or would have taken a long time if relied solely on human ingenuity.”
Describing the future of brain interfacing and its application and intertwined aspects with not just IP in particular but other aspects in society in general, Yingying Zhu, a partner, Beijing Mingdun Law Firm in Beijing said: “While this new technology will be facilitating communication of thoughts and social collaborations, it could also have significant impacts on ethics, freedom of thought and expression, right to privacy, the IP system, to name a few. Legislators should take an in-depth examination of the technology and devise a legal framework that could utilize brain-computer interfaces to enhance the progress of science and useful arts rather than limit it.”
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