Is Artificial Intelligence (AI) a tsunami that will overwhelm IP law or are we just keeping up?
Technology innovation is a leading driver that spurs changes in law. Where major technological advancements occur, adapting laws to those advancements takes concerted effort and time. This is abundantly true with respect to the interface of artificial intelligence (AI) and intellectual property (IP) law and regulation.
Developments in AI have raised substantial new questions regarding ownership, authorship, and infringement of IP rights. Current regulatory and legislative efforts to address AI in the U.S. are evolving, but several trends and areas of focus have emerged. Two primary areas of AI’s effect on intellectual property laws are in the copyright and patent arenas.
Fittingly, we have used ChatGPT 4 as a tool to generate some aspects of this piece.
Copyright and AI-Generated Works
A central issue is whether AI-generated works can be protected by copyright and, if so, who should be considered the author. Under U.S. copyright law, only works created by humans are eligible for protection. The U.S. Copyright Office has historically denied claims for works created solely by non-human entities, such as AI systems.
As AI systems become more autonomous – and prolific — in creating art, literature, music, and software, questions arise about whether the developers of the AI, the users of AI, or the AI itself can claim ownership. In Thaler v. Perlmutter, No. 22-1564 (D.D.C. August 18, 2023), for example, the court ruled that AI-generated works could not be copyrighted because the law requires human authorship.
Current copyright law, as interpreted by the court, clearly, does not address the full scope of copyright protection in AI-generated works. As AI-generated works are created by human-machine interactions that substantively involve the creative input of human beings, but are interpreted or augmented by computers, will the Thaler decision remain viable? Of course, since U.S. copyright law is codified in the Federal statutes, 17 U.S.C. §201, et seq., and applied and interpreted by Federal courts, the evolution of fundamental principles of copyright authorship, ownership, and infringement will require either or both legislative and judicial thought and implementation.
Patent Law and AI
Questions similar to those regarding copyright authorship are also presented in the issue of patent inventorship under the U.S. Patent Act.
Inventorship under the U.S. patent law requires the inventor to be a human being. The premise behind this is that inventorship requires cognitive conception. Board of Education ex rel. Board of Trustees of Florida State Univ. v. American Bioscience Inc., 333 F.3d 1330, 1340, (Fed. Cir. 2003). Consequently, the current law, as well as its judicial interpretation and application, excludes AI generated innovations. Whether this also excludes human conceptions that are implemented or augmented by AI remains to be determined.
AI is rapidly becoming a research and development tool used to accelerate the innovation process. AI may be used to evaluate the relevancy of prior art, i.e., information already known in the relevant field of technology, with respect to the novelty and non-obviousness requirements for obtaining a patent. Similarly, AI may assist in generating variations or improvements on existing technology, thus increasing the difficulty of assessing whether the human or the machine was the source of the potentially patentable contributions.
Current Legislative and Regulatory Efforts
Given these challenges, there is increased awareness of the need for updated legislation and regulatory guidance on AI’s impact on IP law. Current efforts to address this include:
National AI Initiative Act (2020): This federal legislation establishes a national AI strategy, but does not specifically address IP issues. However, it underscores the importance of coordinating federal efforts in AI research and development, which could indirectly influence future IP policies.
U.S. Patent and Trademark Office (USPTO) Requests for Comment: The USPTO has sought public input on various AI-related issues, including whether AI can be considered an inventor or author. These inquiries suggest that the agency is grappling with how to adapt existing IP frameworks to address AI.
Congressional Hearings and Proposals: U.S. lawmakers have held hearings to explore AI’s broader societal impacts, including potential legislative responses. While there has not been comprehensive federal legislation on AI and IP, such discussions are a starting point for future regulatory action.
International Perspectives
It is worth noting that other countries are also grappling with AI and IP issues. The European Union, for example, is working on the Artificial Intelligence Act, which includes some consideration of intellectual property concerns. International cooperation and harmonization of rules will be crucial, as AI systems and the IP issues they raise are global in scope.
Summing it Up – For Now
AI’s rapid development is outpacing existing U.S. intellectual property laws, creating legal gray areas regarding authorship, invention, and data protection. While courts and regulators are beginning to address these issues, comprehensive legislative reforms will likely be needed to ensure that IP law can adequately protect innovation in the AI age. Current regulatory efforts, including agency guidance and congressional hearings, are steps in that direction, but significant legal clarity by both Congress and the courts is still required.
If you would like to discuss the subject matter of this piece, please contact David Rosenbaum of Heston Morton, LLP, [email protected].
