Interesting IP law questions arise when we view AIs as creators in their own right rather than mere software tools. Deirdre Moynihan looks whether an AI can author and/or own IP under copyright law.
Does my AI own the IP that it creates? If not, who?
Hi and welcome to the Kemp IT Law vlog. I'm Deirdre.
Interesting IP law questions arise when we view AIs as creators in their own right, rather than mere software tools.
At its simplest AI is software (or computer code) that runs on hardware. However, there are now numerous examples of literary works, works of art, music, inventions, and databases "created" by AIs, raising the question of who (or what) owns the IP in these items.
We look in this vlog at the whether an AI can author and/or own IP under copyright law and sui generis database right and whether an AI can be an "inventor" under patent law. This vlog looks at the issue through a UK law lens but these issues are not limited to UK law.
Under copyright law, for any "literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken".
The idea then, is to identify the person (whether human or corporate) behind the arrangements leading to the creation of a protected work. This sounds simple but can be difficult to apply in practice particularly where different humans or corporates contribute to the "arrangements necessary" by e.g., making available training datasets, or where the AI itself writes its own code or algorithms. While ownership can be addressed contractually (and we recommend that this is the case), determining authorship is necessary to define when the term of copyright protection commences.
Under the sui generis database right that exists only in Europe, the "maker of a database is the person who takes the initiative and the risk of investing". This position raises a number of considerations as, on one reading, it could mean that the maker of a database using data generated by sensors or other technology is the manufacturer or user of the sensor/technology rather than the entity deploying the sensor/technology for specific purposes. This issue, together with uncertainty over the treatment of any technology that produces, stores and transmits operational data, how machine encrypted datasets are viewed and the principle that investment underlies EU database right creates unique challenges that have yet to be addressed. In its recent Evaluation Report on the Database Directive, the European Commission recommended that consideration be given to whether machine generated data can be protected by database right and how database right operates in relation to machine generated data.
From a patent law perspective, the UK's intellectual property office recently updated its Formalities Manual to specifically provide that an AI cannot be listed as an inventor of a patent in a patent applicable because an AI is not a "person". It also stated that a failure to list a human person as an inventor will lead to withdrawal of the patent application under s13(2) of the Patents Act 1977.
In the UK, patent law provides clarity lacking in copyright and sui generis database right. It's therefore important to contractually provide for who (or what) owns and controls other works created by AIs to avoid any potential issues under copyright and/or sui generis database right law.
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