The recently published response of the UK government to a consultation on the interface between artificial intelligence (“AI”) and intellectual property law demonstrates the importance that is attached to this area of technology in driving innovation and economic growth.
The response makes interesting reading for those involved in the AI field from both a technical and legal perspective. On the one hand it shows that the UK government is willing to act where they see a clear opportunity to enable progress. On the other hand it shows a wariness about unintended consequences if changes are pushed forward too soon, especially in areas where there is currently a reasonable international consensus.
The consultation focussed on three particular areas:
- copyright protection for computer-generated works without a human author.
- licensing or exceptions to copyright for text and data mining.
- patent protection for AI-devised inventions.
Input to the consultation was sought from across the commercial, legal and academic sectors.
Maintaining the status quo
For two of the focus areas, the government has decided to make no changes to the existing legal framework.
For copyright protection, this means keeping the existing provision that provides copyright protection for works that are generated by a computer. Whilst this provision actually pre-dates the recent boom in AI-based creative technology, it nevertheless provides a mechanism through which protection is available for relevant works created predominantly through the operation of an AI-based system. The consultation found no evidence of negative effects caused by the existing provision. Given the government’s aim to reward investment in AI, it is not surprising that they wish to continue to enable the end products of that work to be recognised as IP assets.
For patent protection, the conversation is more nuanced because the question of whether or not an invention can be “AI-devised” is still open. There are no existing provisions in patent law that expressly allows an AI entity to be recognised as an inventor, although a number of court cases stemming from the activities of the Artificial Inventor Project are currently seeking to establish whether a machine can be in fact recognised as an inventor under current legislation.
The government response on this point actually echoes the conclusions drawn in a report that followed a similar consultation held by USPTO. The response is that no change is needed now because the consensus and existing evidence suggest that AI is not yet sophisticated enough to support a change on policy grounds. In other words, at present the role of AI in the process of devising inventions can be considered as an assistive tool, for which the existing inventorship provisions are adequate.
However, the response to the consultation implicitly recognises that this area may be one in where action may be needed in future to fulfil their aim of the IP system being an enabler of AI-based innovation. However, from the perspective of an IP lawyer, it is heartening to see this recognition couched in terms of seeking an internationally harmonised approach.
Making a difference
For the focus area relating to text and data mining (TDM), the government response pledges to take action by introducing a new copyright and database exception which allows TDM for any purpose.
Given the government’s commitment to be an enabler for AI innovation, it is not a surprise that they are willing to take action when they perceive there to be a potential barrier. In this case, it is also likely that the government was tipped towards action because the existing UK provisions that allow TDM for non-commercial research appear more restrictive than the TDM copyright exceptions in other jurisdictions, notably the EU, Japan and Singapore.
However, the eye-catching part of the UK government response is that they intend the new exception to be more permissive than the equivalent provisions in the EU and elsewhere, with the express purpose of making the UK a more attractive location for AI businesses.
The key difference here is that the UK government does not intend to replicate the “opt out” of the exception that is available to right holders in the EU. Instead, the response maintains that existing safeguards, in particular the requirement for lawful access, will provide sufficient protection.
The proposed change is undoubtedly good news for data mining because it removes the existing need to obtain TDM licenses from right holders. However, the knock-on consequences on the behaviour of right holders is less clear cut. A potential risk may be that right holders seek to recoup potential lost income from TDM licensing by shifting the barrier elsewhere, for example by restricting the manner in which lawful access can be achieved. Care will therefore be needed in the implementation of the exception and associated safeguards to ensure that it achieves its objective of enabling further AI innovation.
Written by Richard Johnson, Partner at Mewburn Ellis