‘Are we human, or are we dancer?’ UKIPO rethinks IP protection for AI-generated works

The Killers, in their song ‘Human’, ponder whether human tendencies hold us back when opportunity presents itself.  So too, the UK Intellectual Property Office (the “UKIPO”) has decided to consider the significance of being human when it comes to IP protection in its additional consultation (launched on 29 October 2021) on how AI should be dealt with in the patent and copyright systems.

The aim of the output of the consultation is to “encourage innovation in AI technology and promote its use for the public good” while at the same time preserving “the central role of intellectual property in promoting human creativity and innovation”.  It follows a previous consultation on the interaction of AI and IP (see Lens post here) and was one of the “short-term goals” of the National AI strategy published by Government in September (see Lens post here).

The consultation considers to what extent copyright and patents should protect inventions and creative works which are made by AI, by looking at three main areas:

• Copyright protection for computer-generated works (“CGW”) without a human author - under the law as it stands, CGW are protected in the UK for 50 years under section 12 of the Copyright Designs and Patents Act 1988 (the "CDPA") provided the work is original, but the concept of originality is defined by reference to human authors and human characteristics.  The consultation therefore considers whether CGW should be protected at all and if so, how they should be protected, to better understand the value of copyright in CGW and the effect on AI investment decisions;  
• Licensing or exceptions to copyright for text and data mining, which are often significant in AI training and development - under current law, although there is a copyright exception for text and data mining under section 29A of the CDPA, it is limited to “non-commercial” purposes and does not cover databases.  The consultation considers whether this exception is sufficient and/or whether further guidance should be provided on the criteria of the exception as it stands; and
• Patent protection for AI-devised inventions, whether they should be protected, and if so, how – the law in the UK currently allows humans that use AI to devise inventions to be named as inventor, but the consultation considers whether, in parallel with improvements to AI capability, the current rule for inventorship (which is restricted to natural persons) could be improved to further support innovation.

The consultation has been launched in preparation for “if or when inventive and creative AI exist”.

In a couple of roundtable discussions hosted on 9 and 11 November 2021, the UKIPO, alongside academic and industry experts, discussed: (i) how to best protect AI generated inventions and creations, and AI’s access to creative works; and (ii) the opportunities and challenges from the integration of AI and humans in creative industries.  As is perhaps to be expected at this stage of the consultation, the roundtables raised more questions than they answered, but did provide insight into some key concerns around:

• licensing of text and data mining – how to ensure AI access to copyright-protected material (in particular, authentic datasets) for development and training of models, where there is currently a mix of reliance on exceptions and licensing regimes;
• length and continuity of protection – the value of IP protection in light of the capacity of machines to generate new works quickly, alongside varying approaches to the issue across different jurisdictions; and
• chilling innovation – in particular how to balance the need to ensure investment in AI-devised inventions is appropriately rewarded and through the correct system (noting a risk that turning instead to trade secrets could harm follow-on innovation) to encourage human creativity, against a fear that a proliferation of patents could ultimately hinder innovation and competition.

The consultation will run until 7 January 2022, with the outputs to inform Government decisions on how best to legislate for the protection of AI-generated works. In a world increasingly conversant with (and dependent on) machines, and against a backdrop of counsel in charge of the DABUS patent applications (see Lens post here and here) asking for permission to appeal to the UK Supreme Court in their AI inventorship case, we wait to see whether IP protection for AI-generated works is destined to continue to dance to the human-centric tune we’ve come to know.