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Artificial Intelligence: Challenges for Intellectual Property

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The information contained in this article is for information purposes only and is not intended to constitute legal advice. If you require further information our property team would be more than happy to assist you. Please contact us at [email protected] or call us on 029 2009 5500 to speak to one of our team.

Artificial intelligence and robots have been the subject of science fiction for some time.

Artificial intelligence (AI) is a term used to describe a range of software functionality, working in parallel with ‘machine- based learning’.

Recently, this form of technology has expanded across various industries. However the legal implications of such intelligence is likely to force a re-consideration of the intellectual property framework.

Companies who use AI must therefore be vigilant in protecting and enforcing their rights, by implementing an extensive strategy to protect their intellectual property (IP) rights within artificial intelligence.

Associate Director, Lorna Bolton of Greenaway Scott takes a look at the legal challenges faced by those working in the AI space.

Third party rights

The breach of third party intellectual property rights is a concern for companies who will undoubtedly be seeking to protect their business as far as possible. Under section 16(2) of the Copyright Designs and Patents Act 1988, artificial intelligence systems cannot violate copyright regulations, as copyright can only be infringed by a ‘person’. As a result, the person in control of the system will be held liable.

Going forward, developers should seek to control the risk by embedding the acknowledgement of intellectual property rights within the artificial intelligence system itself. Essentially, developers of artificial intelligence should teach their software to respect the rights of third parties. This is especially crucial if the system is in control of a task which is out of the hands of the operator.

Content creation

Another challenge companies may face is in relation to content creation. The use of artificial intelligence systems in this area will limit, or even remove the need for human input. Regarding copyright, the definition of such a right is made by reference to a human author. Therefore, it is not possible for an artificial intelligence system to be classed as an author.

Originality of work comes from a human, an artificial intelligence system cannot exercise the same skill, labour and judgement or engage in intellectual creation as that of a human. However, one possible source of originality in artificial intelligence systems may be in the skills or intellectual creation expanded within the training process of the system, which enables artificial intelligence to create specific types of content or in building the underlying learning algorithm.

Patent ownership

Another challenge faced by many companies is the question of who owns the patent of an idea generated. Should an artificial intelligence system be allowed ownership? Traditionally, inventing is seen as a human enterprise. Section 7 of the Patents Act 1977 refers to the inventor being a person and to ownership vesting primarily in the inventor. Equally, in attributing patents to people who are not the inventors as a result of patent law, the artificial intelligence system is not being recognised for its invention. However, acknowledging an artificial intelligence system as an inventor could lead the invention to fall into the public domain.

Going forward, it may be wise to approach the issue of artificial intelligence patent ownership by form of agreement, as opposed to leaving it to the Intellectual Property Office and the courts to decide on the matter.

Future of artificial intelligence in IP

The Government, in its policy paper released on 26th April 2018, believes that the UK has the potential to lead the way in the artificial intelligence sector. Presenting a strategy, the Government have made their future intentions clear. Although there was no mention specifically of the challenges intellectual property will face, the time will come in which these issues will need to be addressed.