Byte Meets Brain- A Case for Extending the Scope of Intellectual Property to Thoughts

I. ABSTRACT

Technology has now advanced enough to record thoughts emanating directly from the brain. Such technology raises concerns in the realm of intellectual property as it threatens the guarding of what one’s mind generates. This article discusses the urgency to include recorded thoughts under the ambit of intellectual property and provides methods to incorporate the change, such as utilizing existing copyright and patent laws or reforming the regime. Lastly, this article aims to provide guidelines to be kept in mind while reforming the present system. It concludes by providing scope for future research avenues and highlighting the need to keep up with technological advancements and make the law accommodative. This article shall lay out a legal analysis along with policy suggestions by utilising literary sources, first-hand data from other countries, and novel arguments.     

II. INTRODUCTION

It is not uncommon to see instances where people report that their thoughts, once spelled out, were stolen. In fact, twenty-nine percent of employees have attested that a colleague has stolen an idea. However, what if that idea was never shared?

Mind reading may not be a proven human talent, but technology indeed has progressed enough to read minds.[i] The ability to control devices with just thoughts is not far from reality, as Elon Musk and Mark Zuckerburg are known to be working on a Brain-Computer Interface (BCI) that can decode thoughts and convert them into words in real time.[ii] Techniques such as BCI have the ability to decipher the language of the brain, which can be understood by anyone to reveal what we are thinking despite not uttering a single word,[iii] thus, giving greater opportunity to steal your thoughts and ideas.

The use of the word “steal” itself sets a justifiable premise for our case to cover thoughts under the ambit of intellectual “property” capable of being taken away. It has already been stated through research that the cropping of new technologies poses new obstacles to the world of Intellectual Property,[iv] making it imperative to address the challenge of protecting thoughts recorded by the latest mind-reading technology.

Inarguable urgency to include recorded thoughts under intellectual property

Intellectual property, apart from providing protection to its owner, has a myriad of benefits, such as the stimulation of development and preservation of collective interest. For example, firstly, in the case of patents, there is also a detailed description of the invention,[v] so if thoughts recorded through BCI technology are provisionally patented, then it would ensure the safekeeping of rights associated with the thinker of any novel idea, while at the same time ensure the authorized public release, in a prescribed format, of essential information required for societal good or knowledge.

Secondly, let’s assume that the thoughts of an individual possessing a trade secret are recorded. In this case, in order to uphold the secrecy and protection of the trade secret, it would be essential to protect the recorded thoughts containing the same. 

Thirdly, there needs to be a mechanism to protect recorded thoughts from reaching the wrong hands or any anti-social elements for which intellectual property rights would function as a barrier and serve the dual purpose of protecting both personal and societal rights.         

A human rights perspective 

Till now, we can already infer that there is massive potential for the exploitation of human rights with the introduction of these technological advancements. A human right is not a luxury but a universal entitlement,[vi] and it is also incontestable that intellectual property rights must be in harmony with human dignity spread over international human rights instruments.[vii] 

A major international human rights instrument to which India is a party is the International Covenant on Economic, Social and Cultural Rights (ICESCR), wherein Article 15[viii] specifies every individual has the right to enjoy the benefits accrued out of scientific progress and its applications. However, for IPR laws to be consistent with the ICESCR norms, it is necessary that the invention in question also upholds the dignity of the individual.[ix] Pointedly, thoughts recorded through the BCI technology can be protected through the introduction of neuro right.[x] and intellectual property rights as it ensures stricter accountability[xi] and would overcome the lack of practical implementation of human rights.[xii] After all, humans should have the first right to choose how they wish to act on their thoughts and ideas as what good is societal good if we are inconsiderate of the individual units of society?

How to include recorded thoughts under the existing intellectual property regime

There is a plethora of ways that recorded thoughts can be protected under the present intellectual property law regime.

(A) Through Copyright law: Under Indian copyright law,[xiii] it has been identified that an author has ‘moral rights’ with respect to their original works.[xiv] This essentially means that there is a right to protect and guard your own work irrespective of part or full protection under copyright law.

Specifically, in the context of thoughts recorded by BCI technology, there exists a strong case for copyright protection. Firstly, Section 13(1)(a)[xv] establishes the doctrine of originality, though it does not define it. It is indisputable that thoughts originate in one’s mind and hence come under the ambit of original works. Secondly, these thoughts are being ‘recorded’ subsequent to being read by a machine of some sort constituting a ‘brain recording’. Hence, if sound recordings are accorded protection,[xvi] then this affirms a case for providing protection to ‘brain recordings’ as well. Thirdly, it is notable that the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which India aims to follow,[xvii] specifically provides that data and its compilations in machine-readable forms constituting intellectual creations are bound to be protected,[xviii] which should be broad enough to include the data of thoughts that are recorded as they are original and intellectual creations of one’s own mind.

(B) Through Patent Law: When something is novel, involves an inventive step, and satisfies the criteria of industrial application, in the ordinary sense, it would be patentable as an ‘invention.’[xix] However, there may be a case wherein a recorded thought through the BCI technology contains a vivid description of such an invention and would not be covered under the Patents Act in its current form. This is problematic as there could be an involuntary collection of such thought which becomes ‘publicly disclosed’ as soon as it is recorded and loses its patentability. Though ‘ideas’ in itself cannot be patented, and rightly so,[xx] there needs to be a difference between how an ‘idea’ and a ‘recorded idea’ satisfying the other tenets of patentability are treated.

Technology is growing at a rapid pace, and almost fifty percent of technology’s growth consists of disruptive technology such as Artificial Intelligence (AI) and Robotics.[xxi] This calls for a revolutionary change in the way intellectual property rights are structured, and technology fosters novel potential segments of the same.[xxii] Hence, one potential segment in light of brain-related technology could be the recognition of “brainial” IP as a form of intellectual property.

Guidelines for a reformed intellectual property regime

The authors believe that it is imperative to bring about change and highlight that certain guidelines must be incorporated amidst a structural change in the intellectual property regime, specifically in the context of recorded thoughts.

Firstly, in the case that there is incorporation through copyright law, it is imperative that a threshold is decided as to what constitutes an ‘original’ thought. It is not uncommon to perceive thoughts as our own when they are actually not.[xxiii] Hence, a careful examination as to which thought is eligible to be protected under intellectual property is warranted. It is also possible that the recorded thoughts are ‘fleeting thoughts’ without any concrete basis; such thoughts should not be accorded protection, and only clear and unambiguous thoughts should be subject to an intellectual property right.

Secondly, to ensure that there is an avoidance of potential privacy risks, it is imperative to introduce certain procedures for using recorded thoughts as evidence in court. IPR regulation would act as a hindrance against justice in certain cases, and this must be kept in mind while structuring the reformed IPR system.

Thirdly, if recorded thoughts are granted intellectual property protection, especially under patent law, then there must be an implied understanding that the thought would materialize into an invention. Regular reviews and checks must be ensured in respect of the same. An appropriate time limit should be specified under which there must be significant progress regarding the same to avoid inordinate delays in the execution of ideas meant for the public good.

Lastly, it is significant to note that thoughts, in general, are subjective in nature, and intellectual property rights generally involve airtight and defined boundaries as to what is to be protected. Hence, there needs to be a mechanism to circumvent this obstacle and allow its inclusion in the form of a new intellectual property segment.

III. CONCLUSION

For the sake of our country’s development, it is not feasible to hinder technological advancements, yet it is essential to prepare for the potential scenarios and risks brought forth by the changes. It is also our duty to ensure that international companies don’t steal data from our citizens or take advantage of their monopoly and our reliance on them. Hence, ideally, there must be the introduction of policy amendments internationally, such as more diversified data protection guidelines, including technology such as BCI in order to increase accountability, but until then, it is our prerogative to work with what we can and introduce or amend national legislation while advocating for the same internationally.

Thoughts are something very personal to every individual and have been the birthplace of every invention yet that led our civilization to where it is. It was a very thought that led to the inception of devices that could read and interpret thoughts. While it would be an obvious privacy hazard if this tech is incorporated in major social media applications or any such platform where there is no express consent to permit it, even if just for the purpose of targeted advertisements, the potential for exploitation of the same makes it imperative that it be incorporated under the intellectual property rights regime.

Thus, even though there are developments in infinite spheres happening simultaneously, such as AI, the more subtle and less talked about developments cannot be ignored. In an era where TikTok claims to read emotions,[xxiv] and Facebook and Twitter read brains, the policymakers cannot sit back and wait for disastrous outcomes to reveal themselves. Proactive measures in the form of committees and research must be taken to analyse not just the present scenario but also the future scope of current scenarios in order to create a framework that is flexible towards the human need for development and their uncompromisable intellectual and human rights.

[i] The authors are students at the Dr. Ram Manohar Lohiya National Law University, Lucknow.

Monique Lopez, UT creates device that reads minds, turns thoughts into text, CBS Austin (May. 3, 2023), https://cbsaustin.com/news/local/ut-creates-device-that-reads-minds-turns-thoughts-into-text.

[ii] Musk's Neuralink cleared for human test of brain implants, DW, (Dec. 28, 2023), https://www.dw.com/en/musks-neuralink-cleared-for-human-test-of-brain-implants/a-65738428.

[iii] Sigal Samuel, Mind-reading technology has arrived, Vox (Jan. 13, 2024), https://www.vox.com/future-perfect/2023/5/4/23708162/neurotechnology-mind-reading-brain-neuralink-brain-computer-interface.

[iv] 4 Daniel Chow & Edward Lee, International Intellectual Property: Problems, Cases and Materials, 2d 290 (American Casebook Series 2021).

[v]Benefits of intellectual property rights, European Commission, (Dec. 30, 2023) https://policy.trade.ec.europa.eu/enforcement-and-protection/protecting-eu-creations-inventions-and-designs/benefits-ipr_en.

[vi] Audrey Chapman, A Human Rights Perspective on Intellectual Property, Scientific Progress, and Access to the Benefits of Science, Georgetown University Press, 153 (1994).

[vii] Id.

[viii] International Covenant on Economic, Social and Cultural Rights, 1966, art. 15.1.(b), 993 U.N.T.S. 3, 1966. 

[ix] Audrey, supra note 7.

[x] Ishika Garg, The time is Now for a ‘Neuro-Rights’ Law in India, Vidhi Centre for Legal Policy (Dec. 22, 2023), https://vidhilegalpolicy.in/blog/the-time-is-now-for-a-neuro-rights-law-in-india/.

[xi] Ernest Young, Mitchell Berman & Anthony Reese, State Accountability for Violations of Intellectual Property Rights: How to “Fix” Florida Prepaid (And How Not To), Duke Law School, 1037-1197 (2001). 

[xii] Julie Fraser, Social Institutions and International Human Rights Law Implementation (Cambridge University Press 2020).

[xiii] The Copyright Act, 1957, § 57, No. 14, Acts of Parliament, 1957.

[xiv] Amar Nath Sehgal v. Union of India and Anr., 117 (2005) DLT 717, 24.

[xv] The Copyright Act, 1957, § 13(1)(a), No. 14, Acts of Parliament, 1957.

[xvi] Copyright Registration for Sound Recordings, United States Copyright Office, 1 (2021), https://www.copyright.gov/circs/circ56.pdf; A Hand Book Of Copyright Law, https://copyright.gov.in/documents/handbook.html#:~:text=The%20Copyright%20Act%2C%201957%20protects,no%20copyright%20in%20an%20idea (Jan. 5, 2024).

[xvii] UNCTAD Secretariat, The TRIPS Agreement and Developing Countries, United Nations Conference on Trade and Development (1997), (Dec.23, 2023) https://unctad.org/system/files/official-document/ite1_en.pdf.

[xviii] Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994, art. 10.2, 33 I.L.M. 1197,1994. 

[xix] The Patents Act, 1970, § 2(j), No. 39, Acts of Parliament, 1970.

[xx] Diamond v. Chakrabarty, 447 U.S. 303 (1980); Yahoo! Inc. v. Intellectual Property Appellate Board, (2010) 5 LW 104 (Mad) (DB) (India).

[xxi] Paul Michael, Technology statistics: How fast is Tech advancing? Media Peanut (Jan. 4, 2024), https://mediapeanut.com/how-fast-is-technology-growing-statistics-facts/.

[xxii] Lester Thurow, Needed: A New System of Intellectual Property Rights, Harvard Business Review (Jan. 1, 2024), https://hbr.org/1997/09/needed-a-new-system-of-intellectual-property-rights.

[xxiii] Mahdyel, Why You’ve Never Had an Original Thought, Medium (Jan. 5, 2024), https://medium.com/illuminations-mirror/why-youve-never-had-an-original-thought-dad10fe1863b.

[xxiv] Damien Black, TikTok accused by privacy watchdog of tracking user emotions to sell advertising slots, Cybernews (Dec. 20, 2023), https://cybernews.com/privacy/tiktok-privacy-tracking-emotions-advertising/.