Copyright in AI 2021 – Sarah Neil shares an update on the progress in the UK’s review of artificial intelligence and intellectual property

 

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As we have mentioned in previous articles how having a range of IP is an important part of a strong portfolio in the protection of your AI business. The ever accelerating landscape and growth of AI technology means keeping on top of the changing legislation and law. In this years’ AI report series our team of experts share the updates on the UK’s progress in the development of IP for AI.

 

UK Government response to “Call for views on AI and IP”

The UK Government has published the responses it received to its 2020 “Call for views on AI and IP” and published its analysis and proposed next steps

The questions on copyright covered three themes:

• the use of copyright works and data by AI systems;
• the existence of copyright in works created by AI, and who it should belong to;
• copyright protection for AI software

The copyright section of the report is available here.  A summary of the responses and the Government’s reply to each theme is below.

 

Use of copyright works by AI systems

Copyright in AI: a Summary of responses

Generally, the current copyright framework is seen as adaptable and applicable to new technologies as they develop.

Respondents acknowledged that AI has no legal personality and is not capable of being an infringer. It was generally felt that liability for infringement should apply to those deriving a benefit from the infringement.

Many copyright owners argued that the current copyright exceptions do not apply to the use of copyright works to train AI machines and that express permission is required for such use.

There was a divide in opinion between copyright owners and copyright users over the use of licensing. Most copyright owners indicated that a voluntary licensing model would balance the need of copyright owners to be compensated for use of their works with the need for AI to access copyright works. Whereas many users of copyright material highlighted the drawbacks of a licensing only model including limits on what can be mined and affordability of licensing for start-ups or small businesses in the field.

A number of respondents commented on the use of text and data mining as a methodology to support AI with many expressing concerns about this moving towards an exception which allows commercial use.

Both copyright owners and copyright users highlighted the need for the Government to better understand licencing models and data mining exceptions in this area.

Government response

The Government acknowledges that many respondents supported the use of licensing to manage use of copyright works by AI. The Government also indicated that it wants a better understanding of the merits of text and data mining exceptions, including the approaches taken in other countries.

The Government has committed to reviewing the ways in which copyright owners licence works for use with AI and consult on measures to make this earlier.

 

 

Protecting works generated by AI

Opinions were split regarding the ownership of content generated by AI. Respondents from the technology industries generally felt such works were protectable within the current scope of the Copyright Designs and Patents Act 1988 and that ownership vests with the owner or user of the AI system. Respondents from the creative industries generally felt the current law on computer generated works is unclear. Respondents from academia argued that the ‘own intellectual creation’ requirement did not support protection for AI generated works at all.

Some respondents argued for a clearer distinction between human created work and AI generated works with some arguing for a new form of right to be created to protect AI generated work.

Government response

The Government agrees that the current position relating to computer generated works is unclear and there is a case for reconsidering it. Current copyright appears to offer adequate protection where a creator uses AI as a tool to create a work. The originality threshold for works created by AI without human input, and the rationale for protecting such works is not the same as for human created works and there may be a case for more limited protection, or no protection at all.

The Government has committed to consulting further on:

• whether to limit copyright in original works to human creators (including AI assisted creations)
• whether to replace existing protection for computer generated works with a related right

It will also consider whether further action needs to be taken to reduce confusion between human and AI works and the risk of false attribution.

 

 

Copyright protection for AI software

The majority of respondents thought that current copyright does not create obstacles to creating or using AI software and considered protection of software itself sufficient and clear. Where a greater need for protection of software was envisaged, this was via other forms of IP not copyright.

The majority of respondents also felt that licensing provides protection of AI developers and does not inhibit the growth of AI.

Government response

Copyright provides adequate protection for software and no further work is needed in this area.

 

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If you wish to discuss this topic, or another Trade Mark or AI related topic, you can contact the writer, or a member of our AI Team.

Also in this series:
April AI Report 2021 – Trade marks
April AI Report 2021 – Designs

 

Also related to the Governments ‘call for views on AI & IP’:

UK Government ‘call for views on AI & IP’ response – Patents & AI

Call for industry views on AI and IP and ViCo

AI and IP – A report on CIPA’s Computer Technology Committee recommendations on AI and IP

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Category: Latest Insights | Author: Sarah Neil | Published: April 2021 | Read more