[Guest Post] Study on Trends and Developments in Artificial Intelligence: Challenges to the IPR Framework

On 25 November 2020, the European Commission announced the new Action Plan on Intellectual Property, which inter alia highlights the importance of addressing the challenges and opportunities offered by new technologies such as AI “to increase the effectiveness” of the IP system. 

In this context, The IPKat is pleased to publish a guest post by Kat friends from the Institute for Information Law (IViR) Bernt Hugenholtz, João Pedro Quintais, and Daniel Gervais, discussing the findings, conclusions and recommendations set out in the study on Trends and Developments in Artificial Intelligence: Challenges to the Intellectual Property Rights Framework, which was also published on 25 November 2020. 

Background 

The impact of Artificial Intelligence (AI) on intellectual property (IP) law undoubtedly ranks as one of the most-discussed topics of 2020 among legal academics and practitioners. Following initiatives at WIPO, the EPO and several national IPOs (including the UKIPO and the USPTO), EU institutions have now also become active in this area. 

On 20 October 2020, the European Parliament adopted a resolution on IP rights for the development of AI technologies. In parallel, on 25 November 2020, the European Commission published a commissioned study on challenges posed by AI to the European IP rights framework. 

The study, which was carried out by researchers at the Institute for Information Law (IViR) [the authors of this post] and the Joint Institute for Innovation Policy (JIIP), examines the state of the art of copyright and patent protection in Europe for AI-assisted outputs in general and in three priority domains: science (in particular meteorology), media (journalism), and pharmaceutical research. The term “AI-assisted outputs” is used in the study to refer to productions or applications generated by or with the assistance of AI systems, tools or techniques. 

Study and Findings 

The study comprises two parts: an assessment of the state-of-the-art of uses of AI in the three focus areas and a legal analysis of how European IP law currently applies to AI-assisted outputs. 

As the state of the art review demonstrates, the use of AI systems in the realms of culture, innovation and science has grown spectacularly in recent years and should continue to do so. AI systems have become almost ubiquitous in meteorology and in pharmaceutical research and are making deep inroads into media and journalism. 

Outside these domains, AI systems are being used to generate diverse literary and artistic content, including translations, poems, scripts, novels, photos, paintings, etc. Likewise, a wide variety of innovative and inventive activity relies on AI systems for its development and deployment, from facial recognition to autonomous driving. 

AI systems have become increasingly sophisticated and autonomous, and they will continue to improve their capacity. The study assumes that fully autonomous creation or invention by AI does not yet exist, nor will not exist for the foreseeable future. The study, therefore, views AI systems primarily as tools in the hands of human operators. 

The legal part of the study examines whether, and to what extent, AI-assisted outputs are protected by European copyright law, related rights or patent law. For copyright, the analysis is concentrated on the EU copyright acquis and its interpretation by the Court of Justice of the EU. The patent analysis concentrates on the European Patent Convention (EPC). 

For EU copyright law, the study looks into whether AI-assisted outputs qualify as works, at issues of authorship and ownership of AI outputs, at their protection by related rights, and at specific case studies in the areas of automated journalism and meteorology. The study reaches the following conclusions and recommendations: 

• Current EU copyright rules are generally sufficiently flexible to deal with the challenges posed by AI-assisted outputs. 
• The absence of (fully) harmonised rules of authorship and copyright ownership has led to divergent solutions in the national law of distinct Member States in respect of AI-assisted works, which might justify a harmonisation initiative. 
• Further research into the risks of false authorship attributions by publishers of “work-like” but “authorless” AI productions, seen in the light of the general authorship presumption in art. 5 of the Enforcement Directive (2004/48/EC), should be considered. 
• Related rights regimes in the EU potentially extend to “authorless” AI productions in a variety of sectors: audio recording, broadcasting, audiovisual recording, and news. In addition, the sui generis database right may offer protection to AI-produced databases that are the result of substantial investment. 
• The creation/obtaining distinction in the sui generis right is a cause of legal uncertainty regarding the status of machine-generated data that could justify revision or clarification of the EU Database Directive (96/9/EC). 

In respect of European patent law – and in particular, the EPC – the study looks into a number of issues related to AI-assisted outputs: inventorship, ownership, novelty assessment, inventive step, sufficiency of disclosure, and the case study of drug discovery. On these topics, the study offers the following conclusions and recommendations: 

• The EPC is suitable to address the challenges posed by AI technologies in the context of AI-assisted inventions or outputs. 
• When assessing novelty, national IPOs and the EPO should consider investing in maintaining a level of AI capability that matches the technology available to sophisticated patent applicants. 
• When assessing inventive step, it may be advisable to update EPO Examination Guidelines to adjust the definition of the “person skilled in the art” and secondary indicia to track developments in AI-assisted inventions or outputs. 
• When assessing sufficiency of disclosure, it would be useful to study the feasibility and usefulness of a deposit system for AI algorithms and/or training data and models that would require applicants in appropriate cases to provide information that is relevant to meet this legal requirement. 
• For the remaining potential challenges identified, it may be good policy to wait for cases to emerge in particular before national courts to identify actual issues that require a regulatory response, if any. 
• Further study of the role of alternative IP regimes to protect AI-assisted outputs, such as trade secret protection, unfair competition and contract law, should be encouraged. 

Comments 

In sum, the study concludes that the current state of the art in AI does not require or justify immediate substantive changes in copyright and patent law in Europe. The existing concepts of copyright and patent law are sufficiently abstract and flexible to meet the current challenges from AI. Producers of AI-assisted outputs also have access to less demanding regimes, such as related (neighbouring) rights and sui generis database protection. 

The main conclusions of the IViR/JIIP study were adopted by the European Commission in the IP Action Plan that was submitted to the European Parliament and the Council on the same day the study was published, 25 November 2020. 

The first image is by Gerd Altmann on Pixabay. 

The second and third images are courtesy of Riana Harvey.