The UK Intellectual Property Office has announced a call for views on artificial intelligence and intellectual property. In particular, the UK IPO wants to hear about the implications that AI might have for IP policy, and, likewise, what impact IP might have on AI. The consultation closes at 11:45pm on 30 November 2020. You can respond by sending an email to: AIcallforviews@ipo.gov.uk
The call sets out how the UK IPO believe that the IP framework relates to AI at present, and also poses a number of questions which it believes are of central importance to the future of AI and IP policy. It does this in five distinct sections covering: 1) patents 2) copyright and related rights 3) designs 4) trade marks and 5) trade secrets. Below is a summary of the themes covered in each section:
The Patents section focuses on the following four areas;
1 What role can/does the patent system play in encouraging the development and use of AI technologies?
2 Al as an inventor; the UK IPO notes that commentators have said that current AI systems are not inventors, and in fact AI is no different to other tools that are used by people to invent. They seek views on the current level of human input in designing AI systems that can produce an inventive output, such as taking decisions on choice of algorithms, the selection of parameters and the design and choice of input. They pose several questions on this issue such as whether there a moral case for recognising AI as an inventor in a patent?
3 Conditions for grant of a patent; this section looks at the legal requirements for granting an AI invention and whether AI produced work could or should be excluded as non-inventions. It also considers that if the justification for a patent is a temporary exclusive right in exchange for making the details of an invention available to the public, what happens if the AI retains the inventive information within its blackbox that cannot be shared with the public?
4 Infringement; the last section in the patents part of the call considers liability for infringement and how infringement would be assessed in these circumstances.
In relation to copyright and AI, the call focuses on three areas;
1 The use of copyright works and data by AI systems; the call recognises that some people are of the view that copyright is a barrier to creativity in AI development, arguing that the risk of infringement inhibits them and that they should be able to use copyright material more easily to increase adoption of AI technology (such as through the text and data mining exception). On the other hand, others disagree that copyright is an obstacle, and that licensing models can adequately respond to this need. And so questions are posed around copyright infringement and exceptions in the use of AI technology.
2 Whether copyright exists in works created by AI, and who it belongs to; looking at the extent of human involvement in what they call AI creativity.
|Some juicey questions!|
Image: Back East Photography
Although, it might be more accurate to say AI assisted creativity. This Kat is certainly of the view that, at least at present, AI still requires a high level of human intervention, from development, to inputting the humanly created material, which has usually been humanly selected, cleansed, coded etc. For example, as this Kat discussed in a previous post about Warner Music signing a distribution deal with an algorithm, each input sound required allocating metadata which the app could then read and use to generate a soundscape. So, whilst it might seem that the sounds are created with a click of a button, the (human) creators explained that it took ‘1.5 years of work developing our algorithm and creating and tagging the stems.’
This part of the consultation therefore asks questions around whether copyright protection should be awarded to AI (assisted) creativity, and if so, who should be the copyright holder.
3 Copyright protection for AI software; the call notes that the UK IPO is not aware of any particular problems with the licensing of AI software, but is seeking any views to confirm this, asking; whether copyright provides adequate protection for software which implements AI?
This section is divided into two themes:
1 Authorship and ownership; which and asks questions about how the current law applies to AI systems and whether the law would need changing to recognise AI as the author of a design. One of the key issues is that the language of the current law suggests that only a legal person who can own property can be the author or owner of a UK registered or unregistered design. It is not currently possible for AI, which does not have legal personality, to be recognised in law as the author or owner of a design. Should we change this? Or keep AI creation out?
2 Infringement; in this section, the UK IPO asks if AI can infringe a registered or unregistered design? And, when considering infringement, what is the impact of AI on the ‘informed user’ in measuring overall impression? Then, if there is infringement, who should be liable?
Although these are different topics of discussion with the design arena, this Kat wonders if the answers should be aligned, meaning that the liability and the authorship should subsist in with the same person, or company, probably the producer or person who made the arrangements?
In this section, the UK IPO notes that many of the traditional concepts relating to trade mark infringement are founded on human interaction with branding and human involvement in the purchasing process. However, they pose an intriguing notion; if AI, having learnt an individual’s preferences, developed to a stage where it removed human interaction from ordering and restocking products, this could have consequences on the current legal framework. What would be the impact of this on trade mark law? What does this mean for the concept of the ‘average consumer’?
The UK IPO seeks to hear views on how trade secrets might provide protection that would not otherwise be provided by the IPRs mentioned above, using trade secrets. Although, they note that some commentators have ethical concerns around whether the use of trade secrets keeps a proper assessment of the ethics of AI systems from the public domain.
See the full consultation call here. Send your views by email to: email@example.com before 11:45pm on 30 November 2020.