In recent years, intellectual property (“IP”) rights have proved to be extremely adaptable in accommodating new technologies. However, there is a new challenge facing the IP horizon, which may prove to be its greatest challenge yet: accommodating the advances in artificial intelligence (“AI”). The most relevant IP rights when considering AI are copyright and patents.
What is AI?
AI, often referred to as “machine learning”, encompasses a range of algorithm-based technologies. In some forms, AI technology seeks to emulate human thought processes to solve complex or repetitive tasks.
An AI system usually involves the creation of an algorithm, which uses a collection of data to model some aspect of the world. It then applies this model to a new data set to make predictions, recommendations or classifications.
Focus in recent years has been on “Generative AI”, a sub-set of AI capable of generating text, images, or other multimedia, using models formed by inputting training data. An example of a Generative AI model is the popular language model chatbot ChatGPT.
Some AI systems are fully automated, so their AI output and any decisions based on it are implemented without any human intervention or oversight. In other systems, the AI output is combined with other information and then considered by a human, who makes a decision based on it. This is often referred to as “having a human in the loop”.
Copyright
There are two main issues when it comes to considering the interaction between AI and copyright: (i) copyrightability; and (ii) copyright infringement.
- (i) Copyrightability
The most relevant case to copyrightability concerns the authorship of a photograph taken by a monkey (Naruto -v- Slater). Mr Slater has set up the camera equipment (shutter speed, lens, aperture, etc) near a troupe of monkeys, but one of the monkeys pressed the shutter button and took a photograph of himself.
Mr Slater battled it out with PETA (representing the monkey) in a protracted series of cases in the US, with the monkey being represented by PETA. Eventually, the US courts decided that a non-human could not be the author of the copyright work.
This mirrors what would happen in English law under the Copyright, Designs and Patents Act 1988 (CDPA) (s11), which states that the author of work is its first owner, generally speaking.
CDPA (s9(3)) addresses artistic work, including photographs, which are “computer generated”, meaning it is generated by a computer in circumstances such that there is no human author of the work. In these circumstances, the author will be the person by whom the arrangements necessary for the creation of the work were undertaken – similar to the US court’s decision in Naruto -v- Slater. Very few other countries have similar legal provisions, so copyright protection for AI generated works in other jurisdictions may not exist.
This leaves open the question of what would be the position with AI machines which are capable of making their own judgments and decisions without human input.
Under the current law in s9(3) CDPA, it is likely that the author and first owner of any copyright work created by such a machine would be the legal person who created the AI machine, as that person would be the person who made the arrangements necessary for the work to be created. Currently, there is little guidance on this point, although it is likely that this area of law will develop fairly soon.
- (ii) Copyright infringement
There has been a recent spate of claims cropping up in court systems worldwide regarding copyright infringements in the training of Generative AI models. These focus on whether creators of Generative AI models are – or should be – afforded sufficient protection in the existing IP framework. A high-profile matter in the High Court concerns allegations that Stability AI has copied millions of images belonging to Getty Images without licence (Getty Images (US) Inc. –v- Stability AI Inc.). The images were used to train an AI model product, Stable Diffusion, to generate accurate images based on text prompts from its users.
The UK’s Intellectual Property Office (IPO) has considered this issue in length. They have proposed in a 2023 consultation that a solution could be to specifically carve out an exemption to copyright infringement for text and data-mining (TDM) purposes. There is already an existing TDM exception in the UK, but it is limited to non-commercial research use only. The UK government have previously announced intentions to extend this to encompass commercial use, however this has recently been scrapped due to concerns on the impact to the UK’s creative industry.
Patents
There are two aspects of patentability to consider. First, the AI machine itself and second, the output from an AI machine.
- (i) The AI machine
AI machines are patentable, and some have been patented, but there are a number of potential obstacles.
It must be possible to teach an ordinary skilled person how to perform the invention by including a description in the claims of the patent. It can prove difficult or impossible to describe how an AI machine invention works as it all occurs in a “black box”.
Simply setting out the algorithms, source code or other description of how the invention works (assuming an inventor wanted to do this) is also problematic, because a patent cannot be granted for such things as mathematical methods, methods for performing a mental act, pure business methods and programs for computers.
It may be possible to overcome the obstacles if it can be successfully claimed that the invention makes a technical contribution or has a technical effect. However, an AI machine creator may prefer to keep the algorithms or machine logic confidential and protect it as a trade secret.
- (ii) Output of the AI machine
The Patent Act 1977 (s7) provides that a patent for an invention will be granted primarily to the inventor, which is defined as the actual deviser of the invention. The devising will most likely relate to the development of the programming logic or development of the algorithms. Since patents are property rights which can only be held by a legal person, logically, the “deviser” cannot be the AI machine.
There is currently a gap in the law where an AI machine makes an invention without any human intervention. There is no equivalent to s 9(3) CDPA, which only applies to copyright works.
In the past few years, a Dr Stephen Thaler has applied for patents in several counties across the world, claiming that the inventor was an AI machine called DABUS (Device for the Autonomous Bootstrapping of Unified Sentience). Dr Thaler also claimed that he had acquired the right to the grant of the patents by “ownership of the creativity machine, DABUS”. This has prompted a raft of litigation, some continuing today, regarding whether an AI can legally own a patent.
In the UK, the courts considered the issue in a string of claims starting at the IPO, and most recently in the Court of Appeal (Stephen Thaler v Comptroller General of Patents Trade Marks and Designs). The Court of Appeal agreed with the courts before it, that since DABUS was a machine, it could not be regarded as an inventor for the purposes of the Patents Act 1977. Further, a machine can not transfer patent rights to a legal person. Therefore, Dr Thaler was not entitled to the grant of a patent as the owner of DABUS. Unsurprisingly, Dr Thaler has appealed the decision again to the Supreme Court, and is currently awaiting judgement.
As at the time of writing, the only jurisdiction in which Dr Thaler has made a successful application is South Africa – although the South African system is essentially that of registration, and it has not examined the validity of the application. It is now open to challenge based on lack of novelty or inventiveness. Otherwise, the German and Australian courts have come to decisions similar to the Court of Appeal.
The UK’s Intellectual Property Office has published a consultation in which it advocates for no material change in the UK law for now, opining that the current patent rules on inventorship are enough to protect AI-assisted inventions. There was, however, an indication that this may change as AI technology advances.
This is the second article in our IP in Life Sciences series. You can find the first article here. Please refer to our full analysis of AI and IP rights here.