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Artificial Intelligence (AI) and Intellectual Property Review – Government Publishes Responses

In its Executive Summary here the Government asserted its ambitions for the United Kingdom to be at the forefront of this revolution. AI is a transformative technology, which is already revolutionising many areas of our lives. There are many questions around AI such as if the creators are not humans, but machines? Should intellectual property protect their creations? Who would own it? And what rules should apply when machines use the creations of others? There were 92 responses to the Review which can be seen here.

Summary of responses

  • Generally – The responses came from a varied background of IP stakeholders and many pictured a positive future. However, there were warnings that AI could take the humanity out of the creative process and harm the human creators that intellectual property is designed to protect and reward. In many areas there was general agreement that the present framework could meet the challenges of the future. There was also a consensus that AI itself should not own intellectual property rights. But there were different opinions on whether works or inventions created by AI should be protected. There was general agreement that we are not at the stage where “artificial general intelligence” exists. The government will continue to monitor the development of AI as it progresses.

 

  • Patents – Many respondents felt that current conditions to establish the inventor may act as a barrier to innovation as the use of AI systems increases. There was general agreement that patents have an important role to protect and support AI innovation. But there were mixed views about the extent that patents should be available and its impact for follow-on innovation. Many emphasised the need for more clarity and predictability in UK IPO patent exclusion practice in relation to AI software, along with a call for more international harmonisation in the area.

 

  • Copyright – Many respondents stressed the importance of putting human creators first. Some argued that works created solely by AI should not be protected by copyright at all. Others argued that they should, but as a separate category of right, with lesser duration and scope. Many recognised the importance of copyright-protected material in training AI systems.

 

  • Trade marks, designs and trade secrets – Respondents generally felt that the law was adequate and flexible enough to respond to the challenges of AI. However, issues were identified which could potentially lead to challenges in the future, and which should be kept under review. Links between patents and trade secrets in relation to disclosure of inventions, and between copyright and designs in relation to computer-generated works and designs, were also highlighted.

Next Steps – objectives

  • Work on AI and intellectual property supports the government’s wider ambition for the UK to be a leader in AI technology. The government’s Plan for Growth will put the UK at the forefront of emerging technological opportunities and will boost productivity across the country. The UK’s AI sector is one of those strengths.
  • The Digital Strategy also sets out the government’s vision and approach to harness digital and support the UK’s recovery from Covid-19. Supporting the digital sector, digital rights, ensuring digital markets are competitive, and the innovative use of data are more important than ever, and, among other issues this strategy will consider their role in our future recovery.
  • The National Data Strategy, published in September 2020, sets out how best to unlock the power of data for the UK. The government believes that unlocking the value of data is key to driving growth both within the digital sector and across the economy.
  • Given this ambition, when taking forward actions following this Call for Views, the IPO will aim to ensure that any measures they implement:
    • encourage innovation in AI technology and promote its use for the public good.
    • preserve the central role of intellectual property in promoting human creativity and innovation.
    • are based on the best available economic evidence
  • The IPO will continue to take a leadership role on AI and IP.

Government response – Designs (below) on other IP rights (patents  copyright)  here)

“The government has carefully considered the responses received and recognises that the use of AI in generating designs is a developing area of technology. We acknowledge the view of stakeholders that current legislation is generally fit for purpose but that there is a need to monitor the situation as the AI systems used in the design process develop.

On authorship and ownership, we accept the views of stakeholders that an AI system should not be considered the author or owner of a design. On infringement, we accept the view provided by respondents that AI systems may be used to carry out certain infringing acts, but AI should be regarded as a tool being deployed under human direction and that liability lies with an individual. We acknowledge the widely held view that the “informed user” test remains applicable to designs which have been generated by AI.

Looking to the future we recognise that, as AI systems develop and move towards full autonomy, we will need to consider whether current designs legislation remains relevant. There does not appear to be a need to act now in relation to designs, but the government will keep the matter under review.

Longer-term questions include but are not limited to: provisions relating to designs generated by a computer and who is considered the author of a design so generated; whether there is a need to further establish an individual to whom liability for infringing acts should attach; and ensuring that established legal tests continue to remain relevant to AI-generated designs as case law develops.

We note that the approach that designs law takes toward computer-generated designs is similar to that taken by copyright law for computer-generated works. We will ensure that any review of copyright provisions takes this into account.

Although we do not intend to take any specific actions in relation to designs and AI, we will keep these issues under review, and will continue to engage with interested stakeholders.” 

ACID’s response to the Review can be found here.