Artificial intelligence (AI) is a rapidly developing field and technology space that has the potential to affect and disrupt innovation and business. It even has the potential to generate new innovations itself. In this post, I want to explore the capacity of AI to create innovations and how the current intellectual property landscape might view such creations.
What is Intellectual Property?
Intellectual property (IP) refers to the output of creative effort, i.e. “intellect”. It is also, in law, a category of “property”, that can be owned, bought, sold, licensed and mortgaged. IP is property that legally protects, particularly in the field of commerce, the creations of intellect as well as commercial reputation and goodwill.
Creators are able to earn recognition and / or financial benefit from what they invent or originate. The law seeks to maintain a balance between the interests of those creators and the wider public interest. The goal is to support an environment where innovation and creativity are encouraged and can thrive.
IP is often referred to in the context of human intellect or creations of the human mind. However, as AI advances, at what point do we consider the creative effort of this type of intelligence and how does it fit into the current IP framework?
What is Artificial Intelligence?
Artificial intelligence (AI) describes intelligence within machines. It is based on the premise that human intelligence can be defined in such a way that it can be mimicked by a machine. Such machines are programmed to “think” like a human; to process data, learn, rationalise and solve problems; and to respond in ways that a human might.
Various levels of AI are often considered. At one end of the spectrum are the purely reactive systems which respond solely to current experiences or input, and don’t capture or store memories or experiences for future reference. At the other end are the self-aware systems, which perceive their own internal states, and can make inferences and formulate ideas. In between are a range of systems with greater or lesser abilities to store and process information, make decisions, perform actions, and interact with people.
AI works by taking and combining vast amounts of data, iteratively processing the information at high speed, and progressively learning automatically from patterns and features it finds within the data. It automates the learning process to manage quantities of data, as well as levels of analysis and accuracy, that a single human would find challenging, enabling it to get more out of the data. However, it still requires a human to set up the system and ask the right question.
Applications of AI
As AI technology continues to grow and develop, it is finding applications in a wide range of everyday activities. For example, in the healthcare space AI is being applied in the field of personalised medicine, as well as providing interactive personal healthcare assistants. In retail its applications range from personalised shopping to stock management and designing the layout of retail space. AI is used to optimise factory operations in manufacturing, and in sport it has a place in analysing images to help coaches improve the game played by their teams.
It’s important to remember that AI is not intended to replace people. Rather its place is to augment our abilities and make us better, and we should work with it with that goal in mind. AI adds a new layer of intelligence to existing systems. For example, AI can improve upon existing analytical technologies, as well as bring analytics to industries and fields where such capability doesn’t exist or is underutilised. It could improve our human abilities (e.g. vision, understanding and memory), and make us better at what we do. Socially, it can break down barriers, such as economic and language barriers, leading to improved exchange and growth.
Potential for AI to Create IP
What is the potential for artificial intelligence to create intellectual property? I want to consider two types of IP rights – patents and copyright.
Patents protect inventions – products and processes that are novel, inventive and capable of industrial application. Could AI create an invention that satisfies these qualifications, and thus itself be considered an inventor?
Copyright protects works – an original literary, dramatic, musical or artistic piece; sound recording, film or broadcast; or typographical arrangement. Could AI originate a work (fixed in a tangible medium) that qualifies as one of these subject matters, and thus itself be considered an author?
AI as the Inventor of a Patentable Invention
Under the New Zealand Patents Act 2013, an invention is defined as novel if it does not form part of the prior art base. I discuss above how some levels of AI are defined by their ability to solve problems. In this context, if an artificial intelligence creates something new, that qualifies as patentable subject matter, and that cannot be found in the prior art base (i.e. is not in the public domain), then the condition for novelty would likely be satisfied.
Similarly, for usefulness (“a specific, credible, and substantial utility” – New Zealand Patents Act 2013) or industrial applicability (“can be made or used in any kind of industry, including agriculture” – UK Patents Act 1977), it is likely that an invention created by AI could meet this criterium also.
Inventive step, on the other hand, is potentially a more subjective determination, despite established legal precedent as to its interpretation. Under the New Zealand Patents Act 2013, an invention “involves an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the prior art base”. This would likely be tested by evaluation of persons skilled in the art. Assuming no bias was introduced by the witnesses knowing the inventor was an artificial intelligence, this test too could potentially be passed.
By these arguments, it is conceivable that an artificial intelligence could create an invention that met the criteria for patentability. However, would such an AI be accepted as and consider an inventor?
Under the New Zealand Patents Act 2013, “a patent may only be granted to a person” who meets certain criteria with respect to the inventor of an invention. Depending upon the definition of a person under New Zealand law, AI may not qualify as an inventor here.
The UK Patents Act 1977 is a little more interesting. It states that “a patent for an invention may be granted primarily to the inventor” and defines an inventor as “the actual deviser of the invention”. There may be scope for this to interpreted as the inventor not necessarily being a person.
These two examples highlight the jurisdictional variation that one is likely to encounter when exploring this question. However, it does suggest that in certain jurisdictions AI may qualify as an inventor, even if clarification as to the interpretation of the relevant legislation might need to be sought. The question of subsequent ownership of AI-inventions is one I’ll leave for a separate blog post.
AI as the Author of a Work in Which Copyright Subsists
Under the New Zealand Copyright Act 1994, a clear description of the works in which copyright would subsist are defined, as is the requirement for the works to be recorded. Further, they should not be a copy of another work. Taking these requirements alone, should an artificial intelligence independently (without copying) create and record one of the defined works, then there is an argument for it being the originator of the work, but would it be considered the author?
The New Zealand Copyright Act 1994 states “the author of a work is the person who creates it”. Similarly, the UK Copyright, Designs and Patents Act 1988 sees the author as the “person” who creates the work. Further, it defines the author of computer-generated literary, dramatic, musical or artistic works as “the person by whom the arrangements necessary for the creation of the work are undertaken”. Examination of these two jurisdictions would indicate that AI is unlikely to be accepted as the author of a copyright-protected work.
It has been argued however (in relation to the UK Copyright, Designs and Patents Act 1988) that when this legislation was drafted there was a direct relationship or link between the input to a computer programme and the consequent output. One of the functions of AI (as discussed above) is to analyse larger and sometimes unexpected sources of data than a human could thereby generating more complex and otherwise unpredictable outputs. This opens the door to discussion as to the true nature of creativity.
Existing case law in the US and Germany for example also establishes precedent for copyright to subsist only in works created by humans. However, as the complexity of AI and its abilities develop, it is not inconceivable for future precedent where AI becomes accepted as the originator of copyright-protected works.
The current definitions of AI are many and complex, and these may well develop and expand in the future. There appears already to be scope for certain IP rights to be legitimately recognised as created by AI. In the future, our legislative framework may move towards recognising the creative abilities of AI even further.
I haven’t touched upon ownership of the relevant IP rights here, but I do think this needs to be part of the overall discussion, in particular within the context of the motivations behind IP rights and their protection – the incentive of rewarding creators for the fruits of their creations, protecting investment and thus incentivising innovation.
Fitting this into the framework of IP legislation is likely to prove challenging. Beyond who or what created the IP, the ownership and enforcement of the rights is a key part of the equation. With AI-created innovations will those incentives remain and if so, in what form? Maybe society will need a new form of IP right or rights to recognise and manage those innovations created by AI. I do think that AI will continue to develop and become more and more integrated into society and our lives. It will inevitably become a source of creativity and the progression of intellectual effort and this will need to be managed.
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