Today marks the 24^th International Intellectual Property (IP) Day. Yet, even as we gather beneath the banner of this year’s official theme, which is IP and Music: Fell the beat of IP, we find ourselves driven towards the realm of Artificial Intelligence (AI), with a special focus on how Mauritius is or rather should be tackling this digital revolution.

It stands beyond dispute that when the French author, A.Nion first mentioned propriété intellectuelle in his book Droit Civil des auteurs, artistes et inventeurs in 1846, he could have never foreseen the seismic shift that AI would bring to the very foundation of IP.

The AI Remix Ara: Is originality dead or just rebooting?

AI is not merely generating original context, it is repurposing existing work, but when one says repurposing, does it not ring a bell? We are currently in an era where there is a blurred boundary between innovation and imitation, especially in the field of IP. By analysing swarming number of datasets, AI can produce creations that closely resemble existing work, albeit with subtle alterations, for instance, a company deceptively using AI tools to generate promotional materials mimicking the Made in Moris branding.

Mauritius: From tradition to innovation

While Mauritius may not yet be Silicon Valley, our island is however quickly positioning itself as a tech hub in the Indian Ocean. In 2020, the government launched the Mauritius Digital Strategy to bolster its IT sector, while the strategy focused mainly on how to facilitate innovative firms to set up in Mauritius and foster domestic entrepreneurship spirit in the field of AI, the bigger issue which was not addressed is whether our IP laws will evolve fast enough to protect both human creators against AI generated works?

One thing is certain, the digital jungle is growing, and Mauritius must sharpen its legal manchete to cut through the complexities of IP and AI. Let us dive into the world of Mauritius’ IP laws, where we will explore the following key legal frameworks shaping this landscape and the uncover the existing loopholes.

Mauritius’ IP Framework

The main IP legislations in Mauritius are as follows:

• Copyrights Act 2014
• The Industrial Property Act 2019
• The Industrial Property Regulations 2022
• Protection Against Unfair Practices (Industrial Property Rights) Act 2022

Copyrights Act 2014 (the Act)

The Act has long protected creators, granting them rights to their works. The Act restricts authorship to human creators, whereby “author” is defined under Section 2 as “the natural person who has created the work”.

Section 3 of the Act guarantees the protection of various works, whether artistic, literary or scientific, ensuring that creator’s IP remains safeguarded. As outlined under Section 6 of the Act, whereby authors’ works are prevented from being copied without authorisation, while also upholding their moral rights as per Section 19 of the Act.

While the Act gives creators exclusive rights to their work, the growing role of AI in the creation may demand a shift in how we define “authors” in Mauritius.

The Industrial Property Act 2019 (IPA)

Here’s where things get spicier. The IPA covers patents but does not yet account for AI’ s role as an inventor. As AI begins to create patent-worthy inventions, Mauritius’ existing laws may need to evolve.

For instance, a reading of Section 13 of the IPA reveals that the right to patent belongs to an inventor. This however leads us to the following pivotal question: Can AI be able to patent inventions it generates or should the credit go to the programmers or companies behind the algorithms?

The Industrial Property Regulations 2022 complement the IPA but do not yet account for AI-driven innovations. Section 6 IPA still limits patent to human inventions. While we recognise that attributing inventorship to AI is inherently complex, it is important to also acknowledge that behind every AI system lies the human input, be in programing, training and thus raising the question as to whether the law should evolve to reflect this collaborative human machine dynamic.

Protection Against Unfair Practices (Industrial Property Rights) Act 2022 (this Act)

This Act steps in to prevent the misuse of industrial property. But the irony is as follows: what happens when AI is used to copy or remix existing works without permission? Does this law cover AI-driven plagiarism; the answer is No! We might need some fresh amendments to ensure that AI creations are protected from exploitation and misuse.

Section 5 of this Act prohibits acts that cause confusion with respect to another’s enterprise or activities. AI systems, especially those generating content or performing tasks autonomously, could inadvertently cause such confusion, there is however no clear guidance on how to handle such confusion.

Additionally, Section 7 prohibits acts that mislead the public. AI systems, particularly those involved in generating or disseminating information, could mislead the public either intentionally or unintentionally. The lack of specific provisions for AI generated misinformation could result in difficulties in enforcing this section.

A pertinent question arises as to whether Section 7 of this Act is sufficiently broad to encompass the confusion that may be caused by AI generated works. While the provision appears to offer general protection, the crux of the matter lies in the attribution of liability. In instances of copyright infringement involving AI generated works, who will be held accountable: is it the developer, the user or the entity deploying the AI system? 

The situation cross border: Ruling by the Changshu People's Court in China

Courts worldwide are grappling with IP issues surrounding AI. The Chinese Courts have taken a progressive stance on copyright subsistence, with multiple decisions, most recently from the Changshu People's Court. This Court has recognised copyright in AI generated images where significant human input and creative directions are involved.

This contrasts with the US Copyright Office which maintains that only human created content is eligible for protection and has rejected claims for purely AI generated works. Despite shared emphasis on human contribution, international consensus on this matter remains unsettled.

The recent ‘Studio Ghibli’ trend

A recent wave of AI-powered platforms has sparked a global trend where users transform their photos into artwork mimicking the iconic animation style of Studio Ghibli, the legendary Japanese studio behind films like Spirited Away and My Neighbor Totoro. While the whimsical, dreamlike results have captivated social media, the phenomenon raises critical questions about intellectual property (IP), copyright, and the ethical use of personal data.

From an intellectual property perspective, the issue is murky. Studio Ghibli’s visual style, while not copyrighted per se, is highly recognizable and arguably distinctive enough to be protected under trade dress (the overall visual appearance and image of a product or service that distinguishes it from competitors). If an AI model has been trained on Studio Ghibli films or artwork without permission, it could be using copyrighted material to generate derivative works, raising legitimate concerns about copyright infringement. However, the legality often hinges on whether the use is transformative or if the platform has used copyrighted material in the training dataset without a license, something that remains largely opaque due to the black-box nature of many AI training processes.

Further, if a user inputs a photo into an AI platform to create Ghibli-style art, who holds the rights the user, the AI platform, or Studio Ghibli itself? Most platforms claim broad usage rights in their terms of service, granting them the ability to reuse, reproduce, and even profit from the output. While the user provides the input (i.e., their image), the AI model developed, trained, and maintained by the company; does the actual generative work. This creates a legal grey area where neither the user nor the platform can claim full authorship in a traditional sense, challenging existing copyright frameworks.

The takeaway: AI and the future of IP

In light of the foregoing, is Mauritius ready to navigate the digital jungle where AI, ownership and creativity intersect? As AI-generated content continues to reshape the creative landscape, will Mauritius lead the way in amending its IP laws to cater for this ever-growing change? Can clear ownership guidelines for AI-created works be established? How will we navigate the fine line between fair use and exploitation in a world where algorithms are the new artists?

True, these are important questions, but the clock is ticking at an accelerated pace which leads to a bigger feat, which is to ensure that Mauritius is not swept away by the digital tide. The future of creativity is being written, the real question is Who will hold the pen?

Until then, wishing all readers a Happy Intellectual Property Day!