World IP Day 2022: Artificial Intelligence
Sapphire Worthington-Hill - QinetiQ Legal Counsel, IP
AI and Patent Law
The fourth industrial revolution has led to a boom in technology, much of which is as a result of advances in the high growth areas of big data, artificial intelligence and machine learning. The next decade is predicted to see an increase in autonomous vehicles and drones, smart devices and the Internet of Things, wearables such as fitness trackers to help us lead healthier lives, and a deeper understanding of nanotechnology, leading to new materials and products such as bendable displays. Such technological advances point towards an increase in novel products, desired by the expanding middle class population and therefore highly saleable. As a reward for their innovation, inventors of these products will seek exclusive exploitation rights, which will lead to an increase in patent applications. However, it is currently being debated whether the current law designed to protect such technologically advanced inventions is sufficient.
DABUS: the AI inventor
The 2018 case concerning Dr Stephen Thaler, inventor of an AI system known as DABUS, led to a division in judicial opinion when he submitted patent applications in multiple jurisdictions, naming DABUS as the inventor. The UK and the US rejected Dr Thaler’s applications, largely due to the fact DABUS was not a human being. South Africa and Australia, however, accepted the applications. These differences have led to a national discussion on how, if at all, current UK patent law should protect inventions created by machines.
The future of AI and patent law
Whether the Patents Act 1977 will be amended, or whether AI inventions will be accommodated under another existing form of intellectual property right, or even whether a brand new legislation will be drafted specifically to govern AI inventions is yet to be determined.
Suffice to say that if AI is to progress to the point where it is able to invent independently in a way that will positively impact the economy, there will have to be some mechanism to reward its investors, the most obvious being a monopoly right over the inventions.
AI and Copyright
Copyright law in the UK protects works of a creative nature, such as literature, music, film and art. It also protects software code, databases and sound recordings. Copyright provides automatic protection for any original work that is recorded in permanent form e.g. on a piece of paper, in a digital file etc. This automatic protection means that authors of creative works do not need to worry about registering their rights, which would be fairly impractical given the quantity of creative works generated. However, the lack of a registration process means that two people can create very similar or even the same work, in which each acquires automatic rights (provided the works were developed independently of one another and no copying is established). To quote Ed Sheeran, following his recent High Court victory over an alleged copyright infringement, “coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That's 22 million songs a year and there's only 12 notes that are available." Thankfully, copyright law is designed to accommodate such coincidences. The legal framework provides an incentive for people to continue producing creative works, which can then be exploited for financial reward and artistic recognition.
When artificial intelligence gets involved
Copyright law becomes slightly blurred when artificial intelligence systems are the authors of new artistic works, be they musical compositions or new pieces of art, such as The Next Rembrandt. Questions arise around the exploitation of works created by machines that have been trained on data from pre-existing human created works: what sort of financial reward, if any, should the owners of the pre-existing works receive? Does a machine’s use of a human created work infringe copyright? If so, should there be exemptions for data mining or research purposes? These are just some of the questions that have formed part of the national conversation around AI and copyright law.
The future of AI and copyright
Unlike most countries, the UK does currently provide copyright protection for original works generated solely by artificial intelligence systems. The duration of copyright for ‘computer-generated’ work is 50 years from the date the work was made, which is significantly less than the 70 years from the death of the author, which is granted to human created works. However, in light of the national AI strategy and the UK’s bid to become a world leader in AI, the government is currently considering whether an amendment to the legislation is needed in order to incentivise investment in AI technologies. Developing AI systems requires significant amounts of time and money. From a commercial perspective, this will only continue to remain attractive if there is some form of financial reward.