Artificial Intelligence (AI) and its inventive spin-offs is undoubtedly pushing the boundaries of intellectual property (IP) law.
We may worry about AI’s negative possibilities: a dystopian vision of robots hell-bent on world-domination. The Future of Life Institute, Elon Musk, and Google have agonised enough in calling for a six month moratorium on further AI development. Hopefully, the ethics of AI and its management will follow swiftly enough to allay some of these fears. The impact on jobs, medicine, education, creativity and society generally of AI is incalculable.
The challenge comes from the fact that AI is not the usual software that operates in accordance with the programmes that humans create. AI will make its own rules. Language models such as Chat GPT effectively mimic the neural architecture of the brain so they can throw up the unexpected. Google’s LaMDA model translates Bengali despite not having been trained to do so.
It is new technology so the IP world will have its own anxieties – will IP rights such as patents and copyright be fit to protect the outputs that AI generates? Are they up to scratch to restrain infringements of IP arising from the use of AI applications?
The core balancing function of IP is the reward and protection of human creativity – technical inventions, images, software source code or the written word – at the same time securing the benefits of these outputs for society at large. The advantages conferred by AI will only be delivered if its human originators can use IP to secure commercial rewards. AI should not be feared, if IP can be harnessed and protected in entirely new situations that AI may generate.
Which IP rights are relevant?
Patents
Patents may protect technical inventions and processes that are novel (not having been previously disclosed except confidentially) and showing an inventive step that is not obvious. If the invention has been implemented by a computer, it may be patentable if it has a technical effect. The underlying software, a mere concept, a purely digital process, the software/hardware interface, or a method of doing business cannot be patented. These principles apply to AI systems.
But what of otherwise potentially patentable inventions that have been automatically devised by AI? Examples might be methods for collecting biometric data for Augmented Reality (AR) and metaverse applications. Such inventions may fulfil the criteria of novelty, inventive step, not being obvious, and having industrial applications. But there is absence of a human inventor. Dr Stephen Thaler tried to register his DABUS AI system as the inventor of a patentable technology, but in the UK it should not be possible for anything other than a human being to be shown on the patent as an inventor. This is the subject of an appeal to the Supreme Court. Since patents are centred on human creativity, how can there be an “inventive step” when the invention has been wholly created artificially when inventiveness is an intellectual function? Under the Patents Act 1977, the inventor must be the “actual deviser” which must always be a person. Again, the test of what is “obvious” involves a human judgment, not the decision of a machine.
Copyright
AI source code may itself be protected automatically and without formality as literary copyright. But to qualify for copyright protection, there must be a degree of originality – the code must not have been copied from elsewhere.
What is protected is the literal expression of the code itself, not what effect it achieves. It is difficult if not impossible (unless there has been a breach of confidentiality) for a third party to get its hands on the code itself or the algorithms, or the data on which it is trained. However, any reproduction of the function of the program will not be an infringement of copyright if those functions have been replicated independently.
Under the Copyright, Designs and Patents Act 1988, there can be copyright in computer-generated works but the owner will be the person who makes the arrangements necessary for its creation. We can say that the “arrangements” involve human skill, labour or creative choice so there will be originality.
The worry for copyright owners however is that someone else’s AI, perhaps without deliberate human intent, make copies or use datasets that would infringe their copyright. A recent case was brought by Getty Images against Stability AI, a generative AI platform which happened to create artwork based on existing third-party copyright images and connected metadata. AI platforms can produce articles (not this one!), books, examination scripts and music as well as pictures. The problem is that it will often be difficult to show that an AI product is an infringing copy. The opportunities for infringement are manifold: some relevant issues will be clarified by court cases.
UK Government AI/IP consultation
The Government has responded to the consultation exercise issued in 2021. Despite options to adapt the law to accommodate transformative AI developments, it has taken a reserved view.
The Government won’t address the question of whether an AI application can be a patent inventor until the Supreme Court has handed down judgment in the Thaler case.
No change is likely with respect to ownership of copyright in AI works since the “arrangement” provision for computer-generated works is thought to be adequate. There has been allowance for a limited exception to copyright law for text- or data-mining (TDM) but only if TDM is used for training AI for non-commercial research purposes.
Conclusions
AI is giving rise to wholly new situations that are created by machines that are intelligent (artificially) but not intellectual. This goes to the root of what IP is all about – the fruit of the human mind. It may however be impossible to identify human inputs where AI is used. This challenges will be tested in litigation with arguments trying to strike a balance between AI’s vast possibilities and the rights of creators of mainstream copyright works.
For more information on all IP matters, please contact Laurie at laurie.heizler@twmsolicitors.com.
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