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Artificial Intelligence and Intellectual Property Protection

December 02, 2022

I recently had the privilege of moderating a debate at the annual conference for the Intellectual Property Institute of Canada about whether artificial intelligence should be treated as an author/inventor for the purposes of copyright/patent protection. Recognizing that the current statutory framework does not permit this, the debate focussed on the pros and cons of extending copyright and patent protection to AI.

With respect to patents, Dr. Stephen Thaler, the creator of Device for the Autonomous Bootstrapping of Unified Sentience (“DABUS”), has pressed the issue around the globe by filing multiple patent applications naming DABUS as the inventor and claiming that he is entitled to ownership of the patents “by ownership of the creativity machine ‘DABUS.’” Patent applications have been rejected in numerous jurisdictions and permitted in a few.¹

In the United Kingdom, Thaler v. Comptroller,[2021] EWCA Civ 1374 (CA), the Court of Appeal began its decision with the following:

"At first sight, and given the way this appeal is presented by both parties, the case appears to be about artificial intelligence and whether AI-based machines can make patentable inventions. In fact this case primarily relates to the correct way to process patent applications through the Patent Office and turns on material which was either buried in the papers but ignored in the written and oral argument, or not referred to at all. It is an object lesson in the risks of advocacy being distracted by glamour."

Ultimately, the Court avoided policy debates and difficult questions about AI and inventorship by focussing on the formalities of the existing UK statute.

Different questions are framing the current debate about artificial intelligence and copyright. The Canadian Consultation on a Modern Copyright Framework for Artificial Intelligence is considering (and sought input from stakeholders) on three different approaches:

1. Attribute authorship to the human or humans who arranged for the creation of the work, not the AI that created the work. This is the approach adopted in the United Kingdom, Ireland and New Zealand.
2. Clarify that copyright and authorship apply only to works generated by humans, or that no copyright may subsist in a work created without a human participating in some shape or form.
3. Create a new and unique set of rights for AI-generated works, including "authorless" works generated by AI.

The policy objectives underlying the grant of patent and copyright protection—to encourage inventiveness and creativity—are achieved by granting protection to AI. On the other hand, can artificial intelligence independently create artistic works or novel inventions? The questions span from pragmatic discussions about incentivizing innovation to existential debates about the essence of creativity. 

The deeper we get into the debate we realize there are more and more questions to consider: 

1. Should there be a new type of IP protection for AI-created inventions?
2. How much human intervention is required for the human to claim an inventorship, authorship or ownership?
3. For creative works, is human skill, judgment and execution required for copyright protection to be granted? 
4. Should AI and humans be treated as co-creators/co-inventors?
5. Assuming a person (human or legal entity) applies for IP registration for AI-generated creation, how could that person prove its right to ownership in the absence of an assignment from the AI?
6. Should a person (human or legal entity) always be identified as an owner of the IP rights to AI-generated works?
7. Can humans take “author” credit for a piece of art if all they are doing is inputting parameters into an AI program?
8. Is AI a tool or an inventor/artist?
9. Should patentability be determined based on the invention or the inventor?
10. Should AI be permitted to generate their own patent/copyright applications?

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¹The South Africa’s Companies and Intellectual Property Commission accepted a patent naming DABUS as inventor for “a food container based on fractal geometry” on June 24, 2021. However, under the South Africa patent regime there is little examination. Germany’s Federal Patent Court set aside a decision denying a patent for the same food containers on the basis of revising the designation of the inventor stating “Stephen L. Thaler, PhD who prompted the artificial intelligence DABUS to create the invention.”

Tags: Advocacy and Dispute Resolution, Intellectual Property, Technology & Privacy