By Sileshi Hirko
Putting Africa at the Forefront in Digital Economies
Central to the flourishing digital economies, the transformative power of Artificial Intelligence (AI) and the potentials of big data are considered to be the drivers of sustainable development. Indeed, AI and big data are both interlinked and essential for their mutual and optimal contributions towards sustainable development. In this respect, “Africa has a unique opportunity to leverage new digital technologies to drive large-scale transformation and competitiveness.” Given its untapped potential wealth of innovative human capabilities and talents, “Africa cannot and should not be left behind.” If historical past is worth a lesson in setting new development trajectories, Africa must learn to avoid the bitter and exploitative experiences of the industrialization era and its consequent underdevelopment.
Digital Technologies and IP as Development Tools
In the current knowledge-driven digital era, digital technologies and intellectual property (IP) serve as crucial development tools. Indeed, appropriate and development-oriented utilization of these tools can be consequential in the continent’s efforts to harness its untapped wealth towards fostering its sustainable development. In leveraging the new digital technologies, IP however entails profound implications for a transformative utilization of AI and big data. Despite their respective attributes and functions, both IP and AI technologies can be instrumental in promoting sustainable development through creative innovation and market competitiveness.
In the private sectors, industries such as pharmaceuticals, high-tech and biotech companies are leveraging IP protection and AI technologies to maintain their competitive advantages. In addition to the global tech industries that operate in Africa, there are a number of local tech and related industries that proliferate across the continent. In AI-driven production and distribution of products and services, both global and local tech industries thriving across the world including Africa depend upon AI and big data for innovation and competitiveness in various sectors. As an essential input for, and product of, AI technologies, big data is thus vital for innovation in the digital industries. Given its untapped talents and demographics, Africa has the potential to be at the forefront of the Fourth Industrial Revolution (4IR). Nonetheless, there are policy, institutional and legal challenges that constrain Africa’s capabilities to harness the full potentials of AI and big data—the core elements of the 4IR.
Exploring the Interface Among AI, Big Data and IP
Serving as a vital instrument of innovation and knowledge production while restricting unauthorized access to knowledge, IP rights are implicated in AI technologies and big data. In particular, the instrumental role of the existing IP system is crucial for the creation and protection of as well as access to the big data itself on which AI operates. For instance, IP rights such as patent, copyright, database right and trade secret are largely involved both in the existing works that constitute the big data and inputs for the AI-generated works. Despite their instrumental roles as an incentive mechanism for creation and dissemination of knowledge for AI/big data applications, the exclusive IP rights tend to restrict access to the knowledge contained in the big data. Consisting of both personal and proprietary data, big data remains an essential prerequisite for AI development and implementation.
Conceptual and Doctrinal Incongruities between AI and IP
In contrast to the uncontested importance of IP-protected works as vital inputs for AI, the appropriateness of IP for AI-generated works is disputed, inter alia, due to the conceptual misfit between AI and the notions of authorship and inventorship as known in the existing IP system. Considered inapplicable for mere machine-created outputs without human creative choices or inventive human efforts, both authorship and inventorship vest in human authors or inventors. Even for the AI inputs under IP protection, harnessing the inseparable AI technologies and big data requires a set of harmonized and access-oriented flexibilities that facilitate unimpeded and legitimate access to the protected knowledge. In this context, the existing IP system not only offers promises but also poses daunting challenges to harnessing AI and big data for sustainable development. In particular, the restrictive international IP system built upon the major IP treaties such as the Berne Convention, the TRIPs Agreement and the WIPO Internet Treaties have serious repercussions for development in Africa without appropriate legal flexibilities such as limitations and exceptions (L&Es).
Rethinking the Existing IP System or Devising Alternative Mechanisms
In view of their significant implications for the much-desired development in Africa, it is imperative for Africa to harness IP-related AI and big data. Nonetheless, this might necessitate rethinking or recalibrating the existing IP system in order to facilitate reasonable access to IP-protected knowledge that serves as an element of big data and input for AI-applications. As to the issue of protecting and access to AI-driven outputs, one might consider the need for accommodating this technological development within the existing IP system.
As an alternative, devising an access-oriented sui generis mechanism might be considered in order to offer necessary incentives for the AI-driven innovative outputs while promoting reasonable public or users’ access to the outputs. In the meantime, the existing flexibilities embedded in the international IP regime needs to be leveraged in its fullest extent in a manner that facilitates the optimal utilization of AI and big data while mitigating the challenges. In the owners-skewed international IP system, African countries should build a robust and development-oriented IP system that promotes development efforts to optimize the values of AI and big data.
In order to spur big data-driven innovation through AI technologies, appropriate enabling conditions or flexibilities are essential to allow unimpeded public access to the inputs for, and outputs of, the application of AI/big data. In this regard, L&Es such as the three-step test, text and data mining (TDM) exception and users-oriented open-ended fair use are instrumental to facilitate access to IP-protected knowledge for utilization in data-driven AI applications.
Thoughts for Further Exploration and Reforms
For a better understanding of the roles of IP in the development and utilization of AI and big data as drivers of digital economies, a series of in-depth studies and careful policy deliberations is essential to explore the promises and challenges of the owners-centered IP system. In the deliberations, a compehensive and development-oriented approach is vital in order to direct and promote Africa’s efforts of harnessing AI and big data towards the continent’s sustainable development. Given Africa’s desire to leverage digital technologies for its long-awaited development, it is imperative to rethink or recalibrate the relevant IP regimes. Indeed, evidence-and-context based policy and legal reforms are needed to catch up with the rapid technological development. For instance, it is important to explore development-related flexibilities such as conditions of IP protection and the L&Es as embedded in the major IP treaties in force and their effects in Africa.
This post first appeared on the AI4Good blog series here.
 Youssef Travaly & Kevin Muyunyi, “The Future is Intelligent: Harnessing the Potential of Artificial Intelligence in Africa,” Africa in Focus, Monday, January 13, 2020 [“The Future is Intelligent”].
 See “Regulating Internet Giants: The World’s Most Valuable Resource is Not Oil, But Data,” The Economist, May 6th 2017 edition; Thomas Niebel, Fabienne Rasel & Stephen Viette, “BIG data – BIG gains? Understanding the Link Between Big Data Analytics and Innovation” (2019) 28:3 Economics of Innovation and New Technology 296-316. MaryAnne M. Gobble, “Big Data: The Next Big Thing in Innovation”(2013) 56:1 Research-Technology Management 64-67.
 Njuguna Ndung’u & Landry Signe, “The Fourth Industrial Revolution and digitization will transform Africa into a global powerhouse,” in Brahima Coulibaly & Christina Golubski, Foresight Africa: Top Priorities for the Continent 2020-2030, Africa Growth Initiative at Brookings, 2020.
 Mizuki Hashiguchi, Artificial Intelligence and the Jurisprudence of Patent Eligibility in the United States, Europe, and Japan, 29 INT.PROP. & TECH. L. J. 3 (2017); Shlomit Yanisky-Ravid & Luis Antonio Velez-Hernandez, Copyrightability of Artworks Produced by Creative Robots, Driven by Artificial Intelligence Systems and the Originality Requirement: The Formality-Objective Model, 19 MINN. J.L.SCI. & TECH. 1;
 Ibid. Daniel Gervais, “Exploring the Interface Between Big Data and Intellectual Property Law” (2019) 10 Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC) 22.
 Ce´line Castets-Renard, Editorial, “The Intersection Between AI and IP: Conflict or Complementarity?” (2020) 51 ICC 141-43.
 Gervais, supra note 6 at 24 & 28.
 Ibid; see Johanna Gibson, “Artificial Intelligence and Patents: DABUS and Methods for Attracting Enhanced Attention to Inventors” (2021) 11:4 Queen Mary Journal of Intellectual Property 401.
 Ruth Okediji,Ruth L. Okediji, ‘Government as Owner of Intellectual Property? Considerations for Public Welfare in the Era of Big Data’ (2016) 18 Vanderbilt J Entertainment and Technology L 331 at 361.