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Facing the AI Copyright Conundrum
by
Posted On March 10, 2020
“The world is now at an unprecedented threshold of the most far reaching revolution whose consequences to patent law in particular are so far reaching that its impact is still unknown,” writes Garikai Chimuka in the abstract for a 2019 article in World Patent Information. “This is the AI revolution.”

“Patent practitioners and others in the world of intellectual property have expended significant time and money seeking to protect innovation in the field of artificial intelligence (AI). But what happens when an AI tries to patent something itself?” Michael Rosen asks in a recent AEIdeas blog post. “Will such an event be possible? If so, who would be named as the inventor? And who would own the rights to the invention?”

AI has already changed business practices, online searching, and innovation and invention. AI computer programming and other technological systems can simulate human intelligence, are programmed to think like humans, and do things generally associated with humans, such as learning and problem-solving.

A 1980 U.S. Supreme Court decision observed that the lack of updated patent law led the court to assume that patentable subject matter includes “anything under the sun that is made by man.” The U.S. Patent and Trademark Office (USPTO) sent out a request in fall 2019 for public input on how AI authorship might require changes to current copyright laws. The first question for consideration was, “Should a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, qualify as a work of authorship protectable under U.S. copyright law? Why or why not?”

The U.S. isn’t alone in trying to deal with AI authorship and patents. India’s Delhi High Court addressed these issues in a decision, noting, “In today’s digital world, when most inventions are based on computer programs, it would be retrograde to argue that all such inventions would not be patentable. Innovation in the field of artificial intelligence, blockchain technologies and other digital products would be based on computer programs, however the same would not become nonpatentable inventions—simply for that reason. It is rare to see a product which is not based on a computer program.”

According to the World Intellectual Property Organization (WIPO), “Mentions of deep learning in patent filings grew annually at an average rate of 175% from 2013-[20]16.” IPWatchdog.com has produced a series of articles on the potential and impact of patenting—or not patenting—AI technologies. The 10th article in the series notes that AI “holds huge widespread potential, and strategic use of AI may well be a source of commercial and/or political power.”

In December 2019, WIPO issued a nine-page document on AI and intellectual property policy. It asked for comments on such topics as deepfakes, who is the “inventor” and the “owner” of AI products, and what protection might exist for anything autonomously developed by AI. WIPO sees this as the first step in a dialogue on AI and legal protections across the globe.

In January 2020, the European Patent Office (EPO) rejected two patent applications that named AI as the inventor. In a press release, the EPO says it “considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect.”

REDEFINING INVENTORSHIP?

In MIT Technology Review, Angela Chen notes that “patent law has very specific ways of assigning ownership: The inventor must be either the employee or the contractor of the parent company. But those are both legal categories, and an AI fits neither, explains Peter Finnie, an IP expert at Potter Clarkson. This alone is grounds enough for the applications to be rejected, before even getting into the requirement that inventors be individuals and ‘natural persons.’”

Current U.S. patent law requires an inventor to be listed on each application. As a recent Wall Street Journal article by Jared Council states about a current AI application, “the case has drawn business interest partly because patents that list the wrong inventor—or exclude an inventor—could be deemed unenforceable.”

Rosen asks in his AEIdeas post, “[G]enerally speaking, does the possibility of a machine inventing something require a renewed understanding of inventorship, and corresponding laws? What about if a human and a machine co-invent new technology? And how should we approach a situation in which a human invents a machine that only decades later invents something else? Should we consider the human inventor the creator of the machine’s inventions for all time, even after the human dies?”

Susan Y. Tull and Paula E. Miller write in the September/October 2018 issue of The Journal of Robotics, Artificial Intelligence & Law, “As the technology advances, so too must our understanding of patent law and patent protection. The use of AI in these fields raises several issues, all hinging on the question of personhood and human contributions, affecting both inventorship (and ownership) and patentability (including subject matter eligibility and predictability).”

“If our era is the next Industrial Revolution as many claim,” Fei-Fei Li asserts in The New York Times, “A.I. is surely one of its driving forces.”

AI is just another aspect of determining 21st-century ownership, and it is a technology that deserves the attention of all information professionals.


Nancy K. Herther, recently retired from the University of Minnesota, has been following technology and information trends since the 1970s.

Email Nancy K. Herther

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