As a relatively new phenomenon, there is not a lot of information or data available on the use of Artificial Intelligence, or AI-generated works and inventions. To obtain evidence to help navigate this area, the UK Intellectual Property Office (UKIPO) launched a public consultation on 29 October 2021 on how the regimes which govern copyright and patents should deal with AI-generated works. The consultation focuses on 3 areas in particular that may require reform.
The first area is computer-generated works. The current position under the Copyright, Designs and Patents Act 1988 is that, where a computer has generated the works, the author is the person who has undertaken the necessary arrangements in order for the computer to produce the works. The author enjoys copyright protection for 50 years from the date of creation. This protection means that there is a cost involved in order for third parties to use the works, which in turn reduces access for the public. However, without protection, works can be copied, thus discouraging the production of works in the first place. The options put forward by the impact assessment for managing computer-generated works are:
· keep the provisions as they are;
· change the provision so that the author has protection for a shorter duration; or
· scrap it altogether.
The second area concerns text and data mining (TDM). The current position is that works which enjoy copyright protection can only be exploited without the owner’s permission for the purposes of TDM for non-commercial scientific research. The drawback with this limited exception is that data can be very useful; AI relies on data in order to produce works, so is it in our interests to have such limited areas where TDM can be undertaken? This position is balanced against the need to offer appropriate copyright protection to keep incentivising creation of copyright works. The proposed options are:
· publish guidance (but effect no legal change);
· introduce a licence-based model;
· extend the current scientific research exception to include commercial scientific research;
· introduce an exception for any use with the option for copyright owners to contract out; or
· introduce the latter exception with no option for contracting out.
The final area concerns patents. The current position for patents is that the inventor must be a ‘natural person’. This was confirmed by the Court of Appeal in Thaler v Comptroller General of Patents Trade Marks and Designs , where it was found
that something invented by AI cannot be patented. It follows that innovation through AI could be discouraged where it is possible that there could be no patent protection. The options considered are:
· expand the definition of ‘inventor’;
· introduce recognition of AI as an inventor in patent applications;
· introduce a new type of protection for AI inventions; or
· keep it as it is.
The balance required when thinking about AI works is between incentivising and rewarding innovation and creation through offering IP protection, and ensuring such protection does not go so far as to negatively affect consumer choice, competition and fair access to works, as well as considering whether AI could overtake or stifle human creativity.
Briffa can advise on copyright protection, TDM and patent protection, just call to book your free half hour consultation on 0207 288 6003.
Written by Laura Gathercole – Paralegal
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