There has been an explosion of technologies that are transforming how we work and live in an increasingly interconnected digital world. The emergence of frontier technologies is at the heart of what is sometimes termed the Fourth Industrial Revolution; hence, there is a need for the IP system to continue to promote innovation in the age of frontier technologies.
In today’s global innovation economy, the demand for various IPR related matters like trademarks, patents, copyrights, industrial designs, domain names to mention a few is increasing at a high pace and becoming more complex. Artificial Intelligence (AI) one of the frontier technologies has emerged as a general-purpose technology with widespread applications throughout the economy and society.
The benefits of AI technology are varied and could truly have the potential to revolutionise many aspects of life, including the world of IP, but its introduction also poses several challenges within the IP industry that need to be addressed not just now but in the near future.
This article seeks to explore some of the challenges of one of the frontier technologies, artificial intelligence (AI), on intellectual property.
AI is generally considered to be a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence. It could also be defined as the ability of a computer-controlled products to perform tasks that only intelligent beings are able to do.
Intellectual property systems have been designed to incentivize human innovation and creation. Until very recently such innovation and creation were one of the defining characteristics of the human species.
- Ownership of Intellectual Property: There is no doubt that AI machines have the ability to create subject matter which can be protected by IP. As the ownership of a trademark is not linked to the person who devised the mark, it is unlikely to have any implications on trademark ownership if an AI machine creates your trademark, but for other forms of IP, the ownership of AI created matter is a hot topic.
The first owner of a piece of work protected by copyright is generally the author or the person who created it. In all these cases, ownership is directly linked to the creation of the subject matter. If it is therefore accepted that AI machines can create the subject matter, does this make the AI machine the first owner of the IP? Allowing AI to own IP has consequences in the field of IP enforcement.
- Infringement of Intellectual Property: If it is accepted that an AI machine can generate subject matter, who will be held responsible if that subject matter infringes third party IP? This challenge is however relevant especially in the context of an infringement of copyright which involves actual copying from the copyrighted source, that is, the author of a work which infringed the copyright of a third party must have had access to that copyrighted work. Again, the concept of AI creating subject matter raises a number of complex legal queries, does an AI machine have sufficient legal personality to be sued for infringement? If not, who is responsible for the infringement of copyright by an AI machine and is it just to hold an individual to account for the actions of the AI machine and would thin individual meet the criteria of having copied the work?
- Liability challenges: Since AI machines can create subject matter, it is worth considering that in some situations they can also be held liable. Artificial intelligence could be subjected to allegations of violation of copyright, trade secrets, or even data privacy if it analyses the investment plans of a business or personalizes big data for a marketing advertisement by auto-copying details from different sources.
- Role of a new consumer and skilled person challenge: With the emergence of technologies such as Amazon Dash buttons and home appliances that can re-order staple groceries when you run out, it is conceivable to see a world where an AI machine will order your shopping for you. We must therefore ask ourselves what impact this will have on the average consumer for the purpose of trademark law. Is it possible for an AI machine to be confused and order the wrong product? Could an AI machine raise the level of attention paid by the relevant consumer if it ever becomes commonplace that certain goods are ordered by AI and not selected by humans?
There is also a question in patent law on whether the concept of a skilled person will change as a result of the surge in AI technologies. The skilled person is a notional person who appears in the EPO and UK legal provisions, including when considering inventive steps. The skilled person is considered to know concepts and terminology in the field of the application and will have means for routine work and experimentation. Should the notionally skilled person be assumed to have access to commonly used AI tools? If this is the case, does it make it easier to find a lack of inventive steps for AI-related inventions, or perhaps all inventions? If new legislation is introduced that allows patents for inventions made solely by an AI system, could the skilled person then also be an AI system?
There have been a lot of ongoing debates at the World Intellectual Property Organisation (WIPO) with respect to the several questions and challenges that this topic- AI generates. However, despite the controversies and challenges, there is a need to generate a practical and appropriate way to deal with the current situation.
In the near future, artificial intelligence will have a dramatic effect on what it means to be human and even perform what normal humans cannot. There must be a proper balance between the utilization and commercialization of the innovation created by artificial intelligence so it can provide reasonable benefits to the machine and must provide benefits to the public at large, or we can say that it must be of public interest.
Frontier technologies provide opportunities for economic growth. To harness these opportunities for all, we need to ensure that the intellectual property (IP) system continues to foster innovation and creation and that the systems for IP administration evolve. Examples of frontier technologies include digital technologies such as the Internet of Things (IoT), blockchain, artificial intelligence (AI), big data, and cloud computing; physical technologies such as autonomous driving, 3D printing, and hardware innovations; and biological technologies such as genetic engineering, human augmentation, and the brain-computer interface.
Deborah F. Toluwalase
Stillwaters Law Firm