Can AI Create IP?
WIPO (The World Intellectual Property Organization) is a body that represents 77 member nations, including China, the US, and Russia, that creates IP policy under which its members are supposed to operate and maintains an IP database for many of the members that do not have a substantial IP system. While policy still varies from country to country, there is a topic that has become a talking point for the IP world and that is artificial intelligence. “The Next Rembrandt”, a portrait created by an AI system that sampled 168,263 Rembrandt painting fragments coupled with a facial recognition system or Google’s GOOG) Deep Mind AI system (WaveNet) that has been used to create short snippets of “Chopin-like” music based on millions of Chopin samples, are bringing up questions as to ownership of such IP, and that creates considerable controversy, but it goes much further.
"The New Rembrandt" - Source: Bas Korsten
Things get really confusing when the AI itself is the applicant for its own ‘created’ works and while discussions at WIPO and other IP venues continue, it has been up to the courts in each country to rule on whether such applications are valid. AI developer Steven Taylor submitted an application to 16 countries last year with the inventor’s name “DABUS”. He had no knowledge of the devices described in the application and claimed that DABUS had created two inventions after developing the general knowledge to devise such items. The Korean Intellectual Property Office asked Mr. Taylor to amend the application using a natural person as the inventor, however Mr. Taylor did not make such a change, and the application was rejected.
The basis for the rejection was that patent law and precedents state that only ‘natural persons’ may be inventors, with a number of countries, including the US, Germany and the UK using this as a guideline for applications, although a lower court in Australia recognized AI as an inventor last year, although it was later overturned by a higher court. A conference held late last year that represented seven patent offices (including the US, China, and Europe) came to the conclusion that those countries have not yet reached the level of technological sophistication that would allow an AI system to ‘invent’ without human intervention and therefore could not consider an AI as a natural person/inventor, but as AI systems become more refined and make an increasing number of decisions on their own, the definition of natural person does not seem to meet the necessary level of breadth that is needed in such cases.
In most instances where such decisions have to be made, the application is either denied or is attributed to the developer of the software that is the basis for the AI creation[1], but copywriting of works generated by AI does not seem to have been specifically prohibited, although there are many countries, including the US, that specify a copyright must be created by a human being, or as US case law[2] stated it, “…the fruits of intellectual labor that are founded in the creative powers of the mind”. Hong Kong goes in the other direction, along with India, Ireland and New Zealand, and the UK, based on the UK’s Copyright, Designs, and Patents Act, which states: In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.
But referring the patent back to the software ‘s author would be the same as assigning a patent to the actual writer of the patent, not the one who came up with the invention, and call into question an almost infinite number of semiconductor patents that were designed on software developed by a relatively small number of companies. Should all of those semiconductors be the property of the companies that developed the design software? It’s not a question we can answer and one that will get harder to answer as AI systems become more able to make basic decisions on their own. The underlying program that runs the basic functions of the AI are the framework under which the system runs but that framework allows an increasing amount of decisions to be made by the system itself as it learns. There will be a point at which AI systems can get close to synthesizing human thought or creativity, at which point the question becomes far more difficult to answer, but there will always be the case that the software is the basis for the higher level AI decisions or creativity, which would give credence to the ‘human only’ ideology.
[1] Guadamuz, Andreas. “Artificial Intelligence and Copyright.” WIPO MAgazine, May 2017.
[2] Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991))
The basis for the rejection was that patent law and precedents state that only ‘natural persons’ may be inventors, with a number of countries, including the US, Germany and the UK using this as a guideline for applications, although a lower court in Australia recognized AI as an inventor last year, although it was later overturned by a higher court. A conference held late last year that represented seven patent offices (including the US, China, and Europe) came to the conclusion that those countries have not yet reached the level of technological sophistication that would allow an AI system to ‘invent’ without human intervention and therefore could not consider an AI as a natural person/inventor, but as AI systems become more refined and make an increasing number of decisions on their own, the definition of natural person does not seem to meet the necessary level of breadth that is needed in such cases.
In most instances where such decisions have to be made, the application is either denied or is attributed to the developer of the software that is the basis for the AI creation[1], but copywriting of works generated by AI does not seem to have been specifically prohibited, although there are many countries, including the US, that specify a copyright must be created by a human being, or as US case law[2] stated it, “…the fruits of intellectual labor that are founded in the creative powers of the mind”. Hong Kong goes in the other direction, along with India, Ireland and New Zealand, and the UK, based on the UK’s Copyright, Designs, and Patents Act, which states: In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.
But referring the patent back to the software ‘s author would be the same as assigning a patent to the actual writer of the patent, not the one who came up with the invention, and call into question an almost infinite number of semiconductor patents that were designed on software developed by a relatively small number of companies. Should all of those semiconductors be the property of the companies that developed the design software? It’s not a question we can answer and one that will get harder to answer as AI systems become more able to make basic decisions on their own. The underlying program that runs the basic functions of the AI are the framework under which the system runs but that framework allows an increasing amount of decisions to be made by the system itself as it learns. There will be a point at which AI systems can get close to synthesizing human thought or creativity, at which point the question becomes far more difficult to answer, but there will always be the case that the software is the basis for the higher level AI decisions or creativity, which would give credence to the ‘human only’ ideology.
[1] Guadamuz, Andreas. “Artificial Intelligence and Copyright.” WIPO MAgazine, May 2017.
[2] Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991))
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