The term “artificial intelligence” is increasingly being invoked across a wide range of industries and technologies (and their marketing), even making appearances in mainstream news and political discussions. The legal industry is not immune, as AI is touted as a feature of a number of legal research, document review, and case organization services. As AI increasingly integrates into research, design, art and culture, how does it fit into our intellectual property systems? The short answer is every lawyer’s go-to answer: “It depends.”
To try to answer this question, we need to understand what “AI” means. Here is the first problem. There are no universally applicable definitions. Instead, what is meant by “AI” depends on a specific usage situation. Typically, at a very general level of description, AI systems develop models that are trained on large datasets to generate an output (e.g. a label or a prediction) with an input of the same type as the learning set. An example from my school days was the machine learning algorithms Netflix used to recommend more titles to its users, which were based on similarities both in the titles on your current list and preferences derived from it. study of the lists of other users. (It was BS – before streaming – when you organized the “queue” of physical discs mailed to you!) Computer vision or image processing and recognition have long been fields for these technologies. More recently, several systems have been released that reverse the image recognition process. Instead of applying a label or description to an image, the system generates realistic images based on a user’s textual input. Along the same lines, AI systems can also be used to generate “deep fakes” that mimic real people. There are similar AI systems that can generate music that produces music that is recognizable in a certain style or genre.
In this context of what technology can do, questions then turn to how AI is used. In one set of scenarios, humans use an AI system as a tool, providing information and directions to a machine to find solutions, generate new leads, or speed up a creative process. Computer simulations have been used for decades to aid R&D processes in various fields, and this application of AI will likely find many applicable, or at least analogous, precedents in this history. These types of uses raise questions as to whether intellectual property creativity standards, such as the person of ordinary skill in the art of patent law, will need to accommodate a hypothetical person augmented by or using these powerful new AI tools.
In another scenario, the machine generates content without active human intervention. Can the computer program, as the creator of the new materials, hold the intellectual property as an inventor or author? So far, in the United States, the answer is “no” for patents and copyrights. Recent test cases (from the same research group) named a computer system as the inventor in a patent application and the author of a visual work of art in a copyright application. Both types of applications were denied because there is no human inventor/author. But the same result does not necessarily apply at the international level. A recent parallel case ruling from the European Patent Office clarified that although the machine cannot be named as the inventor, the human owner of the machine could be named as the inventor to meet the formal requirements of the application. As another example, the UK has a statutory category of copyright protection for ‘computer-generated works’.
So if the computer has nothing, then there is nothing to worry about? Not so fast. First, there is a gray area in the United States: if humans are not actively involved in the creative process leading to the invention or expressive work, and the AI is not an inventor or author , it is not clear if there is anyone who can claim rights to the AI-generated creations. Second, if you use software tools developed by others, the licenses and other agreements relating to those tools should be carefully reviewed to ensure that the resulting process/design/idea/work is not subject the rights of the software or the service provider. The owner of data used in training an AI system may have other rights independent of the software vendor. Read the fine print. It depends.
So far, my discussion has focused on patent and copyright law, as that is where recent disputes have captured attention. But what about other forms of intellectual property? For brands, the main entity-based questions relate to the companies involved in the use of the brands (or trade dress such as product design) rather than the role of specific humans and machines to create the brand. We are not at the point where computers create their own business on their own!
And trade secret law can protect virtually any form of information that has commercial value – again, without dictating who or how the information is generated. It is even possible to establish trade secret rights over information derived from public data. Analyzing huge amounts of data to get an interesting (and valuable) set of insights is a great opportunity for AI contributions.
Where do we go from here? Various IP offices around the world have asked for feedback and published studies on how to deal with AI in their respective IP systems. There are also calls to put in place new forms of legal protection for AI instead of trying to enforce old legislative regimes (including their historical reliance on human inventors and authors). ) to these new problems. Something like that is probably many years away, though. In the meantime, you can assess a new AI-based IP issue in the usual way: understand the specific facts, including the roles of the people involved, the AI system, and what they did; research applicable laws and decisions interpreting those laws; and decide how best to apply this law to the facts in question. And don’t forget our mantra: “It depends.”•
Blake R. hartz is a partner at Woodard Emhardt Henry Reeves & Wagner LLP in Indianapolis. The opinions expressed are those of the author.
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