IP Rights and the AI Minefield

To be honest, my heart sank when I was asked to write a blog post on the relationship between AI and intellectual property rights (“IP Rights”). It’s like nailing a fast-moving jelly of ever-changing dimensions to a virtual wall. Suffice to say the jury is, almost literally, out.   

However, I have a blog to write. So…let’s define the parameters. I am going to focus on the two IP rights that seem to be uppermost in the IP lawyer’s mind – patents and copyright.

As with all things AI and IP, we need to bear in mind the positives and the negatives. But also, the amazing ability of intellectual property rights and laws to adapt to the ever-changing creative environment – why I do what I do! 

The UK Government Consultation outcome (28th June 2022) summarises the position well: both “patents and copyright reward and protect inventions and creative works. AI plays an increasing role in both technical and artistic creativity.

Patents and copyright must provide the right incentives to AI development and innovation, while continuing to promote human creativity and innovation”.  It is this “human”, genuinely intangible and unpredictable, aspect of creativity and IP rights that is giving governments, courts and IP lawyers pause for thought.  What follows is a summary of some of the key AI issues facing businesses and IP systems globally: 

Patents 

Can an AI system be protected by patents?   

It is theoretically possible for an AI system to be patented. However, many patent registration systems (including the UK system) are reluctant to patent software, computer– implemented/devised inventions, or business processes. So, any application will be reviewed with extreme caution and will likely be rejected in the UK. For the moment, such inventions will have to be carefully protected using copyright and, where possible, as trade secrets.      

Can AI be an inventor?   

In the first instance (and put simply) a patent is granted to an inventor. The next question is “who is the inventor”?  Global patent systems are cautious, but for the moment the consensus seems to be that the inventor must be a human i.e. a “natural person”.  This was recently confirmed in the UK Thaler Supreme Court test case and is supported by responses to the UKIPO and current approach of the UK government.  The word “current” here is important.  If AI becomes more “intelligent” this might change! 

Copyright 

Can AI systems be protected by copyright?   

YES – in the UK, computer programs (and therefore software in part) is protected as a form of literary work provided the code is written down or recorded in some form. The ideas and methodology behind the AI program are not protected. 

Can AI-generated works be protected by copyright?  

The extent to which individuals who prompt or control an AI system might be considered to be an author (and therefore copyright owner) of AI-generated artworks is more complex. As with most things copyright, it will be a matter of degree – just how creative has the human been? A simple “create the Mona Lisa in blue” is unlikely to attract protection, whilst a deeper combination of instructions, processes, knowledge, originality and creativity will move the IP dial towards creativity, and therefore authorship. But is there potential for the human to share authorship with the AI system itself? 

Possibly. In the UK, a computer (AI) -generated work does benefit from protection. Thus, the copyright in the AI portion of work would likely be owned by the AI provider, potentially resulting in joint ownership. The standard terms of some of the major AI providers do not claim these rights, and even expressly grant them to the human creator. 

It is worth noting that in the US, AI-created parts of the work will currently enter the public domain. Thus, if AI-generated works form a key part of business branding or marketing, these rights must be fully researched and clarified.  

Can AI infringe copyright?   

Put bluntly, yes, probably.  We covered this subject briefly in Part one of this blog.  There has been a recent, well-publicised spate of litigation in a number of jurisdictions. Most of these cases are still pending and the outcomes may vary by jurisdiction. However, the key questions appear to be: 

1. Has actual copying taken place?; and 
2. In which jurisdiction did the infringement occur?
     

What is clear is that if you are a copyright owner, you ought to take advice on the best way to protect on-line materials and data. Conversely, if you are an AI-system owner or user, take care – use or processing of materials sourced through or by AI may result in infringement of copyright in those materials.   

In conclusion… 

In the exciting and developing “wild west” AI environment, a cautious but informed approach is required. Expert advice will be invaluable in a number of areas, from identifying and protecting your IP assets to keeping track of new developments, managing AI risks and educating your business accordingly. This is essential for all businesses and IP rights (including designs and databases, not mentioned in this blog), and will provide a solid foundation from which to pick your way through the minefield whilst taking best advantage of the interface of IP rights and AI.