What just happened?
The UK Government has confirmed that it will consult on the possibility of introducing legal changes to protect AI-generated inventions which do not meet inventorship criteria, following a call for views on AI and IP.
What does this mean?
According to the UK Intellectual Property Office (‘UK IPO’), a 2020 consultation revealed a consensus among respondents that AI should not own IP rights, and differing opinions on whether works or inventions created by AI should be protected. [1]
The UK IPO noted that “in relation to patents, many respondents felt that current conditions to establish inventorship may act as a barrier to innovation as the use of AI systems increases. Some argued that inventorship criteria may impact patent availability, with less incentive to invest in AI research and less transparency in the innovation process.” [2]
Copyright:
Many respondents to the consultation stressed the importance of putting human creators first. Some argued that works created solely by AI should not be protected by copyright at all, while others held that they should, but as a separate category of right, with lesser duration and scope.[3]
Many recognised the importance of copyright-protected material in training AI systems. Some argued that copyright restrictions made this difficult, and potentially led to bias. Others argued that licensing was adequate to those who needed it. [4]
Trademarks, designs, trade secrets:
Respondents generally felt that the law was adequate and flexible enough to respond to the challenges of AI. But they noted that this could potentially lead to challenges in the future, and therefore should be kept under review. These included links between patents and trade secrets in relation to disclosure of inventions, and between copyright and designs in relation to computer-generated works and designs. [5]
How does this impact the legal sector?
The UK government should review the ways in which copyright owners license their works for use with AI, and consult on measures to make this easier, including improved licensing or copyright exceptions, to support innovation and research. This includes a consultation on whether to limit copyright in original works to human creations (including AI-assisted creations). In line with this, the UK government should consider replacing the existing protection for computer-generated works with a related right, with scope and duration reflecting investment in such works.
The UK government needs to publish enhanced IPO guidelines on patent exclusion practice for AI inventions and engage AI interested sectors, including SMEs, and the patent profession to enhance understanding of UK patent exclusion practice and AI inventions. The UK Government should assess how it is going to confer protection for AI-generated inventions which would otherwise not meet inventorship criteria.
The UK government also needs to assess the economic and legal impacts of IP policies to enhance its understanding of the role that IP policies play in incentivising investment in AI, which will contribute to the UK’s economy. In that, the UK government should work with stakeholders and international partners to establish the feasibility, costs and benefits of a deposit system for data used to train AI systems disclosed within patent applications.
By Nickolaus Ng
Assessing Firms/Bodies:
#UKIPO #GowlingWLG #Bird&Bird #Allen & Overy LLP#Bird & Bird LLP#Hogan Lovells #Freshfields Bruckhaus Deringer LLP
Footnotes:
[1] Rory O’Neill, ‘Dabus team urges EPO to reconsider AI-inventor policy’ (World Intellectual Property Review, 2nd June 2020) <www.worldipreview.com/news/dabus-team-urges-epo-to-reconsider-ai-inventor-policy-19728> accessed 18 April 2021
[2] Intellectual Property Office, ‘Consultation Outcome Executive Summary’ (gov.uk, 23rd March 2021) <www.gov.uk/government/consultations/artificial-intelligence-and-intellectual-property-call-for-views/executive-summary> accessed 18 April 2021
[3] Ibid
[4] Ibid [n2]
[5] Ibid [n2]
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.