If your business uses artificial intelligence, you’ll probably want to protect any rights you might have in anything the AI generates. Although the law still lags behind the technology, there are some things you can do to protect your interests.
AI is booming
AI is developing at a startling pace. It can now mimic human reasoning in a way that enables computer systems to solve complex problems and even create works of art on their own. The mission statement of DeepMind (an industry leader in AI, bought by Google in 2014 for a reported $650 million) is to ‘solve intelligence’. And Accenture recently reported that AI could boost average profitability rates by 38% and lead to an economic increase of US$14 trillion by 2035.
AI is increasingly being used across business sectors - from pharma to farmers. So who owns the content being produced by all those machines?
IP law is still playing catch-up
IP law provides an obvious solution – in particular, the law of copyright. But does copyright exist in AI-generated content?
Under UK law, in order for a literary, dramatic, musical or artistic work to get copyright protection, it must be ‘original’. The courts have interpreted this to mean that the author must have created the work through their own skill, judgement and effort. At the EU level (under InfoSoc and the Database Directive), certain works must be the author’s own intellectual creation to qualify for copyright protection. But can the originality requirement be satisfied by a non-human author?
This focus on personhood suggests that a work lacking an identifiable human author might not fit the bill. However, it’s worth keeping in mind that the UK may move away from the intellectual creation test post-Brexit, so watch this space.
Even if copyright does arise in an AI-generated work, we then turn to the question of who owns that copyright. Under UK law, ownership of a computer-generated work lies with the person who makes the arrangements necessary to create the work. Traditionally, this has meant the human author who used the software to produce the work.
The position is less clear when the role of the computer is upgraded from assistant to producer. Who owns the copyright if the ‘person’ making the necessary arrangement is an algorithm? In cases of ‘simple’ AI, it seems likely that the person using or directing the software would be the author. But it’s less clear for AI that can make unsupervised decisions based on ‘deep learning’ from previous data sets.
The EU Commission has recently highlighted the need to review how traditional IP rights apply to AI-generated content, so things should get clearer.
Use your contracts to fill in the IP gaps
In the meantime, businesses that own or license AI can use contractual protections. On a licensing deal, the parties will want to know who owns the rights (if any) in the AI output - and also in any ‘learning’ enhancements to the AI itself that are generated by its analysis of the licensee’s own data sets. The parties can protect their positions by including confidentiality and data security restrictions in the licence. And if you’re buying a business that owns or licences in AI, make sure to review this in your due diligence.
