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Government consultation: Artificial intelligence and intellectual property

Government consultation: Artificial intelligence and intellectual property

Legal Seminar

Artificial intelligence (AI), the use of technology to mirror human problem-solving and decision-making capabilities, is a growing part of the society we live in today, with AI being behind a number of significant developments and inventions in recent times. Just this week, scientists from the University of Cambridge announced the development of a new AI learning technique that could accelerate the search for new disease treatments[i].

As AI becomes more embedded in society, the interaction between AI and the UK legal framework, in particular legislation relating to the grant and use of certain intellectual property rights, is under increasing scrutiny and the UK Government has recently commenced a consultation seeking views on the topic. The consultation focuses on three key areas: the treatment of copyright for materials made by AI; legislation surrounding the use of copyright protected materials in the context of text and data mining; and patent protection of inventions devised by AI.

Copyright protection

The UK currently provides copyright protection for works generated by AI where there is no human creator, one of only a few countries in the world to do so. Protection of such works is currently limited to 50 years from the date of creation. The aim of the consultation is to assess whether this protection should remain unchanged, be removed, or have a reduced scope and duration, reflecting the effort or investment put into its creation and providing protection for as long as is needed to encourage the production of work using AI. 

Text and data mining

Text and data mining is a term used to cover advanced techniques for automated, computer-based analysis of large quantities of data and is a tool that is widely used in AI. An existing copyright  exception allows researchers to make copies of copyright-protected materials providing it is for the purpose of computational analysis and for non-commercial use, conditions which are viewed by some as too restrictive given that many AI machines are used in a commercial context and would therefore be unable to rely on this exception. The consultation will consider whether this exception should remain in place as well as the following three potential changes:

  • An expansion of the exception to include commercial research
  • Whether any expansion of the exception should be subject to an opt-out policy for individual copyright holders
  • Improvements to the copyright licensing framework, allowing AI operators to access licensed copyright with more certainty, rather than having to rely on an exception to legislation

Patent protection

As it stands, UK legislation does not allow AI to be named as the inventor on a patent application, a concept that has been recently tested in the case of Thaler[ii], in which the court upheld the IPO’s decision to withdraw a patent application in which Stephen Thaler had listed an AI machine as the inventor. The consultation will review whether to make no legal change; expand the definition of inventor to cover any humans responsible for the AI machine which devises an invention; allow AI machines to be identified as an inventor of a patent; or provide AI-devised inventions with a new type of protection similar to the patent regime.

What next?

In the government’s previous call for views on this topic, there were a range of responses. Some respondents strongly supported the widening of legislation to further encourage the use of AI, whereas others were of the view that human creators should be put first, ahead of AI, particularly in relation to copyright.

This is an area which is being tested in the courts around the world and it will be interesting to see whether the government ultimately decides to take an approach that reflects the evolution of innovation in society by better enabling and encouraging the use of AI or whether the legal framework will remain unchanged.

The government’s consultation is due to last until early 2022, after which they will publish their findings on this topic.

[i] https://www.cam.ac.uk/research/news/transformational-approach-to-machine-learning-could-accelerate-search-for-new-disease-treatments

[ii] Stephen L Thaler v Comptroller-General of Patents, Designs and Trade Marks [2021] EWCA Civ 1374

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