The AI and IP conundrum: UKIPO joins the debate

 On 7 September, the UKIPO put out a call for views in order to better understand the implications of AI on IP policy, all in the interests of furthering its mission for the “UK to remain at the forefront of the AI and data revolution ”.

Engaging in the recent trend for AI-themed consultations from IP policymakers (including WIPO and the European Parliament), the UKIPO has invited prospective respondents to give their views on a series of issues across five areas in the IP universe: patents, copyright, designs, trade marks and trade secrets.

• Patents

Patents proved the weightiest topic up for discussion, with many questions revolving around whether patent law should allow AI to be identified as an inventor; a topical subject in the wake of the recent DABUS case, which touched on precisely this issue (for further discussion on this subject, see our previous posts here and here).

Questions included: “Does or will AI challenge the level of inventive step required to obtain a patent?”, “Should we extend the concept of ‘the person skilled in the art’ to ‘the machine trained in the art’?” and, on the subject of infringement, “Who is liable when AI infringes a patent, particularly when this action could not have been predicted by a human?”.

• Copyright and related rights

Given the heavy reliance of machine learning systems on extensive datasets, including works such as books, music, photographs and databases, copyright protection of such works may pose an obstacle to AI development. The UKIPO therefore queried whether further exceptions are needed to allow copies to be made within an AI system, giving rise to questions of whether an AI “brain” should be treated in a similar way to a human one.

Questions around how AI falls into the definition of authorship under UK copyright law, and whether AI-generated content should be eligible for copyright protection, are likely to give rise to considerable debate, with the UKIPO acknowledging that opinion tends to split between those arguing for the protection of AI-generated works in order to incentivise investment, and those of the view that “copyright should promote and protect human creativity, not machine creativity”.

• Designs

Feedback was requested on the UKIPO’s conclusion that current UK legislation does not allow for AI, which has no legal personality, to be recognised in law as the author or owner of a design. Questions included: “Do you consider that legislation should be changed to allow AI systems to be recognised as the author of a registered design or designer of an unregistered design?” and “If so, how should we assess when AI stops being a tool programmed by a human and becomes an intelligent entity capable of producing its own IP?”.

The UKIPO also queried whether the actions of AI could infringe a registered or unregistered design and, if so, “who should be liable for the infringement?”.

• Trade marks

As with designs, infringement was a key consideration in respect of AI and trade marks, with the UKIPO noting that “many of the traditional concepts relating to trade mark infringement are founded on human interaction with branding and human involvement in the purchasing process.”

Questions centred around whether the actions of AI could infringe a trade mark, and whether AI could affect the concept of the “average consumer” in measuring the likelihood of confusion caused by the use of a sign.

• Trade secrets

The UKIPO also welcomed views on how trade secrets could provide protection for AI where other formal IP rights could not, noting, for instance, that trade secrets may serve to protect AI developments currently excluded from patent protection.

It nevertheless also acknowledged that there may be ethical concerns regarding the progress and operation of AI systems, and questioned whether the use of trade secrets would keep assessment of the ethics of AI systems out of the public domain.

A summary of all questions posed by the UKIPO can be found here.

Prominent themes in this call for views echo those across consultations from other policymakers, with recurring concepts of inventorship, authorship, ownership and liability pointing towards the broader, thorny issue of whether AI should be capable of having a separate legal personality. Undoubtedly the UKIPO’s questions offer no straightforward resolutions and, as with the recent WIPO and European Parliament consultations, responses should provide a valuable insight into the nuances and controversies of the current AI climate.