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
"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:
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:
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.”