Can copyright law adapt to AI?


Having been involved in copyright for more years than I can remember, I have always been impressed with the ability of copyright to adapt to new technologies and provide the necessary level of protection. to encourage creativity and entrepreneurship. However, I wonder if copyright has met its equal in trying to accommodate artificial intelligence (AI). I have doubts as to whether copyright (like patent law) can protect “non-human intelligence” within the confines of English law as it currently exists.

There are many definitions and descriptions of AI, but a good description is: “AI uses computers and machines to mimic the problem-solving and decision-making abilities of the human mind.” (IBM). Essentially, it is the combination of computing power and algorithms with datasets to provide solutions to problems, make recommendations or draw conclusions. Many of us don’t realize how ubiquitous AI is in our lives, including speech recognition, facial recognition, chat bots, and recommendation or comparison engines, to name a few. -a.

The computing device – comprising hardware and software – must be assembled, to a greater or lesser extent – by human intervention – the device cannot (for the moment at least) create itself. This is what poses the fundamental problem of copyright.

The relevant provisions of the Copyright Designs and Patents Act 1988 (“CDPA”) are:

S 11 (1): Subject to certain exceptions (which are not relevant here), “The author of a work is the first owner of any copyright in it”;

S 9 (1): The “Author, in relation to a work, designates the person who creates it”.

S 9 (3): “If it is a literary, dramatic, musical or artistic work generated by computer, the author is considered to be the person through whom the necessary arrangements are made for the creation of the work. “

178: “” Computer generated “, in relation to a work, means that the work is computer generated under circumstances such that there is no human author of the work. “

Many of us don’t realize how ubiquitous AI is already in our lives.

With good forethought, the designer behind Sections 178 and 9 (3) clearly foresaw that computers or other machines could be developed which, as a result of the arrangement of computer hardware and software by a human, would be able to create a work, without other human intervention. However, Article 9 (3) brings us back to the point that the author must be a “person” and therefore, under English law at least, an AI machine cannot be the author and therefore cannot. not own the copyright in a work.

Without wishing to get too lost in the field of patents, we have had decisions both in the United Kingdom[1] and the EU concerning a device (DABUS) created by Dr Stephen Thaler. In the patent applications, Dr Thaler claimed that the DABUS machine was the inventor. The British and European courts have rejected this claim, on the basis, in the United Kingdom, of Section 7 of the Patents Act 1977, which provides that a patent for an invention will be granted primarily to the inventor. An “inventor” is defined as the actual creator of the invention. In case it has been said that designing an invention is a human activity and, since patents are property rights, which can only be held by a legal person, the “designer” cannot logically not be an AI machine. (Interestingly, other jurisdictions, like Australia[2], have judged, at a preliminary stage, that the DABUS machine can be considered as the inventor).

So the current position under English copyright (and patent) law is that the work (or invention) must be owned by a person and cannot be owned by an AI machine.

Recognizing the growing role played by AI, the UK Intellectual Property Office (“IPO”) has opened a consultation[3] on AI and intellectual property rights, which closed on November 30, 2020. He asked the following questions: “… and if the creators [of works or inventions] are not humans, but machines? Should intellectual property protect their creations? Who owns it? And what rules should apply when machines use other people’s creations? “

The current position under English copyright (and patent) law is that the work (or invention) must be owned by a person and cannot be owned by an AI machine.

In his response[4], the government called AI a “transformative technology, which is already revolutionizing many areas of our lives.” By focusing on the part of the consultation that dealt with copyright and AI, the government is confident that works created by humans but assisted by AI are adequately protected under the current copyright regime. ‘author. However, he felt that the CDPA definition of “computer-generated works” is unclear and that it may need to be reconsidered, especially when the AI ​​machine creates a work without there being any human creative contribution. He will advance the idea of ​​changing the regime that applies to purely artificial works of AI, so that they are protected by a new right with their “Scope and duration reflecting the investment in such works” (but being lower than that provided by copyright protection).

In conclusion (as far as any conclusion is possible at this time), the fundamental problem remains that intellectual property rights are primarily intended to encourage creativity through financial reward – if you create a copyrighted work. , like software, you can license it and others cannot copy it during the copyright term. Likewise, if you get a patent, it gives you a monopoly on the claims of the invention, allowing you to market it for the duration of the patent. Subject to certain exceptions (such as certain open source software or academic collaboration), the copyright will belong to a person, who may license or assign rights in the work. Under English law, a machine cannot own a work and cannot market it by licensing or transferring it.

While the government’s goal is laudable in seeking to encourage technological advancement, I remain convinced that an effective system can be adopted to protect works created solely by AI outside the copyright regime, as it raises more questions than it answers. Except for purely philanthropic purposes, why would anyone want to create a machine that somehow “owned” the works it created when there would be no obvious way to market them through ‘a license or an assignment?

We come back to the fundamental point that a machine is not legally capable of doing these things and basically intellectual property exists to encourage and protect human creativity. It will be interesting to see if and how the government is able to shape the new law and presumably a registration system to allow third parties to exploit the rights created in the interest of technological advancement.

Peter James, partner

Head of garden

First Floor, 7 Frascati Way, Maidenhead, SL6 4UY

Phone. : +44 01 793 492265

E: [email protected]

Head of garden is a British law firm based in the Thames Valley region. Its lawyers offer expertise in commercial law, dispute resolution, residential property and transfer of property, inheritance and family protection. Gardner Leader is also a member of LawNet, a group of over 60 law firms committed to ensuring the quality and excellence of their services.

Pierre Jacques is a partner in the Gardner Leader commercial division, bringing a wealth of experience in intellectual property law that he has gained during his 37 years of practice. His areas of expertise include copyright, databases, patents and trademarks, as well as commercial law more broadly. He is also a member of the Society for Computers and Law (SCL) and an associate member of the Chartered Institute of Trade Mark Attorneys (CITMA).

[1] Thaler – v- Controller General of Patents, Trademarks and Designs (2021) EWCA Civ 1374

[2] Thaler –v- Commissioner of Patents (2021) FCA 879

[3] Intellectual Property Office: Artificial Intelligence and Intellectual Property: Call for Papers, published on September 7, 2020

[4] Government response to a call for opinions on artificial intelligence and intellectual property

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