New Frontiers in Intellectual Property: Emerging Rights and Protections

Intellectual property law was not built for the world we live in today. It evolved over centuries to protect inventions, books, and brands – tangible creations by identifiable human authors. But what happens when an AI generates a painting, a biotech firm patents a gene sequence derived from tribal knowledge, or a foreign company trademarks a crop that Indian farmers have cultivated for generations? These are not hypothetical concerns. They are live legal debates shaping what scholars call “new generation intellectual property rights” – the expanding frontier of IP protection beyond its traditional contours into digital creations, biotechnology, and traditional knowledge.

Why IP law had to evolve 🔗

Traditional IP frameworks – patents, copyrights, trademarks, and industrial designs – were designed with a specific model of creativity in mind: an individual inventor or artist produces something new, and the law protects it for a fixed period. This model worked well through the 20th century. But the convergence of artificial intelligence, biotechnology, blockchain, and 3D printing has fundamentally unsettled the assumptions on which these frameworks rest. Who is the “author” when an AI writes code or generates art? Who owns a genetic resource that a tribal community has used for centuries? Can a country protect its biodiversity as a form of intellectual property? These questions have driven a new generation of IP thinking, both globally and in India.

Digital creations and the authorship problem 🔗

Copyright law operates on a basic principle: there must be a human author. The moment artificial intelligence enters the creative process, this principle strains under pressure. AI systems can now generate music, art, and written content, fundamentally blurring the lines of traditional authorship – and the legal world is still catching up.

India’s position on AI and copyright 🔗

India’s stance, as clarified by the Ministry of Commerce and Industry in February 2024, is that the current Copyright Act, 1957 and Patent Act, 1970 are sufficient to protect AI-generated works – and that there is no need to create a separate category of rights for AI innovations. In practice, however, this position is under real stress. The Raghav AI Artwork case of 2021 illustrated the tension sharply: artist Ankit Sahni applied for copyright registration of an artwork co-created with the AI tool RAGHAV, listing the AI as co-author. India’s Copyright Office initially accepted it, then reversed course, ultimately confirming that only human creators can hold authorship under current law. The incident exposed a gap that formal clarification alone cannot fully close.

The most consequential current case is ANI Media Pvt. Ltd. v. Open AI Inc. (2024), pending before the Delhi High Court. ANI alleges that OpenAI trained its ChatGPT model on ANI’s copyrighted news content without authorization. The court has admitted the matter and issued notice to OpenAI, declining to offer any “safe harbour” for AI training. This case is widely expected to be a landmark in Indian copyright jurisprudence – potentially determining whether training large language models on copyrighted material constitutes infringement, or falls under fair dealing under Section 52 of the Copyright Act.

Comparing global approaches 🔗

Different countries are taking very different paths. The United States Copyright Office holds that AI-generated content lacking human creative input cannot be copyrighted. The United Kingdom’s Copyright, Designs and Patents Act, 1988 takes a more permissive approach – its Section 9(3) provides that for computer-generated works, the author is the person who makes the necessary arrangements for the work’s creation. The EU’s AI Act (2024) mandates transparency in training datasets and requires developers to respect copyright, with provisions for licensing through collective management organisations. India is actively looking at these models as it considers reforms such as a “significant human input” test, mandatory disclosure norms for training datasets, and statutory licensing schemes.

Biotechnology and the patentability debate 🔗

Biotechnology has created an equally complex frontier. Advances in gene editing and synthetic biology have expanded what is patentable, covering genetic engineering processes, new biological materials, and novel pharmaceutical compounds. But this expansion runs directly into ethical and sovereignty questions – particularly for countries like India, which is one of the world’s most biologically and culturally diverse nations.

The core tension is this: modern pharmaceutical and biotech research relies heavily on biological resources and plant-based compounds, many of which were first identified through traditional knowledge systems. Of the drugs derived from higher plants currently on the global market, a significant majority were developed from leads found in traditional medicinal practices. When private entities patent these leads without acknowledging their origin or sharing benefits with source communities, it constitutes what is widely termed biopiracy.

What biopiracy means in practice 🔗

Biopiracy involves the unauthorized exploitation of biological materials and indigenous knowledge through intellectual property systems – transforming generations of communal knowledge into private, patented property without recognition or compensation. India has faced this problem repeatedly. In 1995, two researchers at the University of Mississippi obtained a US patent on turmeric’s wound-healing properties – knowledge Ayurvedic practitioners had documented and applied for thousands of years. The Council for Scientific and Industrial Research (CSIR) challenged the patent, successfully getting it revoked by demonstrating prior art. Similar battles were fought over neem-based pesticides, basmati rice, and Ashwagandha formulations.

The Convention on Biological Diversity and India’s response 🔗

The international community’s answer to biopiracy began taking shape with the Convention on Biological Diversity (CBD), adopted in 1992 and ratified by 196 countries including India. The CBD has three core objectives: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from the use of genetic resources. Critically, Article 8(j) of the CBD obliges state parties to respect, preserve, and protect the knowledge, innovations, and practices of indigenous and local communities – and to ensure that any commercial benefits flowing from such knowledge are shared equitably with those communities.

Building on the CBD, the Nagoya Protocol on Access and Benefit-Sharing, adopted in 2010, created a more concrete implementation mechanism. It requires that entities seeking to use biological resources or associated traditional knowledge must obtain Prior Informed Consent (PIC) from the country of origin and the relevant communities, and must agree on fair benefit-sharing terms before access is granted.

India’s domestic framework 🔗

India enacted the Biological Diversity Act, 2002 directly in pursuance of its CBD obligations. The Act established the National Biodiversity Authority (NBA), which regulates access to India’s biological resources by both Indian and foreign entities, approves research and commercial use of traditional medicinal knowledge, and enforces benefit-sharing arrangements. Foreign entities cannot use India’s biological resources or associated knowledge without NBA approval. The Act also prohibits unauthorized patenting or commercialization of traditional knowledge, making it a direct legal bar against biopiracy.

The Traditional Knowledge Digital Library: India’s defensive weapon 🔗

Perhaps India’s most significant and globally recognized contribution to new-generation IP protection is the Traditional Knowledge Digital Library (TKDL). Established in 2001 as a joint initiative of the Council of Scientific and Industrial Research (CSIR) and the Ministry of AYUSH, the TKDL is a unique repository of India’s traditional medical wisdom, containing 34 million pages of formatted information on over 2.26 million medicinal formulations drawn from Ayurveda, Siddha, Unani, and Yoga.

What makes the TKDL particularly effective is its design. Rather than being a static archive, it uses an innovative Traditional Knowledge Resource Classification (TKRC) system that maps traditional knowledge entries to international patent classification codes – making it directly searchable by patent examiners worldwide. Knowledge originally recorded in Sanskrit, Tamil, Arabic, and Urdu has been translated into English, German, French, Spanish, and Japanese to close the linguistic gap between ancient texts and modern patent offices.

The TKDL operates through formal access agreements with major international patent offices, including those of the US, UK, EU, Germany, Canada, and Australia. Since its inception, the TKDL has led to the withdrawal or rejection of over 300 patent applications that attempted to claim traditional Indian knowledge as new inventions – covering everything from turmeric and neem to ginger and Ashwagandha. India is the only country in the world to have implemented such a comprehensive global biopiracy watch system.

Geographical indications: protecting cultural and agricultural heritage 🔗

Another dimension of new-generation IP that has grown significantly in India is geographical indications (GIs). A GI tag protects products whose qualities, characteristics, or reputation are essentially attributable to their geographical origin – making it a tool that bridges IP law and cultural heritage protection. Examples like Darjeeling tea, Kalamkari textiles, and Mysore Sandalwood illustrate how GIs prevent the misuse of regional identity and ensure that commercial benefits flow to the communities that have developed and maintained these products over generations. In the context of traditional knowledge, GI protection complements the TKDL by giving legally enforceable territorial rights to specific products rooted in traditional practices.

The unresolved tensions: TRIPs vs. the CBD 🔗

At the international level, a fundamental friction persists between two frameworks. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) treats intellectual property as a private right – applicable to individual inventors and corporations. The CBD, by contrast, recognizes the sovereign rights of states over their biological resources and the collective rights of indigenous communities over their traditional knowledge. These two frameworks do not align neatly. India has consistently pushed at the TRIPS Council for patent applicants to be required to disclose the source of origin of any biological material used in an invention, along with evidence of prior informed consent. This “disclosure requirement” remains a point of active international negotiation, with developed countries largely resisting it and biodiversity-rich developing nations pressing for reform.

What does the future of new-generation IP look like? 🔗

The trajectory of IP law is clear: it will keep expanding into domains that were unimaginable when the Paris Convention was signed in 1883 or when TRIPS was negotiated in 1994. Blockchain technology is already being used to establish tamper-proof ownership records for digital assets, offering a potential solution to some of the authorship and provenance problems that AI creates. Nanotechnology and synthetic biology are adding new layers of complexity to patent law. And as AI-generated content becomes mainstream, the question of what counts as human creativity – and what deserves legal protection – will become impossible to defer.

For India, the stakes are particularly high on two fronts. As a growing technology economy, India needs IP frameworks that incentivize AI innovation without leaving its creators exposed. As one of the world’s most biodiverse nations with an extraordinarily rich repository of traditional knowledge, it needs robust mechanisms – both defensive and positive – to ensure that this heritage is protected, recognized, and fairly commercialized for the benefit of the communities that have sustained it.

What do you think? As AI systems become capable of generating works that are indistinguishable from human creativity, should IP law focus on protecting the human who designed the AI, the user who prompted it, or the creative output itself – and why? And given the ongoing tension between TRIPS and the CBD, do you think a binding international treaty specifically protecting traditional knowledge is achievable, or will it remain a distant aspiration for biodiversity-rich developing nations like India?

References

1. https://www.legalserviceindia.com/legal/article-13719-intellectual-property-rights-in-the-age-of-emerging-technologies.html
2. https://www.pib.gov.in/PressReleasePage.aspx?PRID=2004715
3. https://www.khuranaandkhurana.com/ownership-of-ai-generated-content-a-deep-dive-into-copyright-law-in-india
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5. https://iisppr.org.in/intellectual-property-rights-in-the-digital-age/
6. https://www.iatp.org/sites/default/files/Intellectual_Property_Protection_and_Tradition.htm
7. https://sustainability.shiksha/challenges-to-sustainable-development/biopiracy-exploitation-traditional-knowledge-rights/
8. https://www.intechopen.com/chapters/78249
9. https://uppcsmagazine.com/safeguarding-indias-traditional-medicine-protecting-indigenous-knowledge-from-biopiracy/
10. https://www.wipo.int/en/web/wipo-magazine/articles/protecting-indias-traditional-knowledge-37721
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12. https://thelegalschool.in/blog/scope-of-intellectual-property-rights
13. https://pmc.ncbi.nlm.nih.gov/articles/PMC4588132/