Intellectual Property Regulation of Artificial Intelligence: A Matter of Time or a Step Too Far?

Abstract

Artificial intelligence (AI) has been disrupting the world of technology and computing for many years, bringing significant benefits to our daily lives. Ever more sophisticated AI systems do not only supplement the work of humans, but can perform tasks which have been traditionally reserved exclusively for humans. AI can be subdivided into a weak (or narrow) AI and strong AI, according to whether it is designed to tackle single task or can accomplish tasks across multiple domains. AI has been increasingly involved in creative and inventive processes which result in assets qualifying for intellectual property protection, whether by copyright or patent law. However, intellectual property law was designed to protect inventions and creations of a human mind, thus seemingly leaving AI outside of the scope of protection. Currently, the prominence of AI has been set to shake up the foundations of intellectual property law (IP) law. IP law was established in order to recognise the fruits of human ingenuity, creativity, and inventiveness. Indeed, for a long time, mankind assumed that only humans are capable of producing creative works or inventions. But what happens if the human element is taken away from the creative or inventive process? Can IP law accommodate the ingenuity of machines or will legislative changes be required? One of the widely discussed questions has been whether AI can generate inventions or copyright-protected works without human contribution. Suggestions have been provided by academics, governments, policy makers, international institutions (most notably the World Intellectual Property Organisation – WIPO), but legislators have been hesitant to reflect any of them into the existing legal framework. Policy discussions have been revolving around the question whether intellectual property law, especially copyright and patent law, ought to be revised to account for technological developments in AI. For instance, the European Parliament, in its resolution from February 2017 noted that ever more sophisticated AI requires the legislation in virtually every area to consider its legal and ethical implications without stifling innovation. In the UK, both copyright and patent law systems lack specific regulation regarding eligibility of robot generated works or robot inventions. The UK Government set out a goal to change this, by asking the public in Autumn 2021 whether the current rules on copyright and patent are sufficient to accommodate creations and inventions by AI, or whether a new set of rules is needed. A large variety of stakeholders exchanged their views with the UK Government. This may lead to new policy options and potential changes in law, which will be discussed here. This chapter does not aim to provide responses as to whether copyright and patent law is ripe for amendment. Rather, it aims to discuss involvement of AI in the IP value chain – not only with respect to AI as a creator/inventor (i. e. before IP protection arises), but also the role of AI as a user of IP protected assets. Challenges brought by AI are discussed here with respect to two areas of intellectual property – copyright and patents.