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World Intellectual Property Organization (WIPO) calls for input into IP policy on AI

World Intellectual Property Organization (WIPO) calls for input into IP policy on AI
  • United Kingdom
  • Intellectual property - Briefing notes
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  • Technology, Media and Telecoms - Disruptive Technology
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One of the major challenges posed by the rapid growth in the use of AI is whether or not existing IP systems are adequate to deal with the ownership and exploitation of AI-assisted and AI-generated products, processes, works and designs, which is something which we have been discussing with clients for a number of years now.

The World Intellectual Property Organization (WIPO) has launched a call for comments on its draft issues paper which sets out a list of the questions that it believes need to be considered in relation to the impact of AI on IP policy. Responses are due by 14 February 2020, following which the paper will be revised for discussion at the Second Session of the WIPO Conversation on IP and AI in May 2020. The current call relates only to identification of the issues and accordingly respondents are invited to comment on whether the questions have been correctly and comprehensively identified and not, at this stage, to suggest answers to those questions.

Many of the questions stem from the core issue of whether an invention, design or literary or artistic work that is autonomously generated by AI should qualify for IP protection at all and, if it should, how this would work in practice.

The issues paper is quite detailed with the following areas identified for discussion:

1) Patents

2) Copyright

3) Data

4) Designs

5) Technology Gap and Capacity Building

6) Accountability for IP Administrative Decisions

The issues covered include the following:

• should there be a “sui generis” (bespoke) system of IP rights for inventions, designs and works generated by AI or should they be protected by existing IP rights (in particular patents, copyright and design rights)?

• if existing IP protection is to be available:

o should it be possible/necessary for the AI application to be the inventor/creator or must there be a human inventor/creator? And if there needs to be a human inventor/creator how should that individual be identified?

o who should be recognised as the first owner of the IP right and should consideration be given to creating a legal personality for an AI application to enable it to own IP rights?

o for an invention to be patentable it must currently involve an inventive step or be non-obvious to a person skilled in the relevant art to which the invention belongs. For AI generated inventions consideration needs to be given to determining the correct parameters for making this assessment. Patent laws also require disclosure of an invention which is sufficient to enable a person skilled in the relevant art to reproduce that invention, but what exactly needs to be disclosed to fulfil this requirement where an invention has been generated by AI?

• data is, of course, a very important factor in the evolution of AI and poses particular issues. AI techniques such as machine learning require AI applications to use large quantities of data which could potentially be subject to copyright and/or database right. Should such use without authorization constitute copyright infringement or should it be expressly permitted under copyright laws on either an absolute or a qualified basis? And is there a need to create completely new rights in data in response to its significance as a critical component of AI? In the absence of this clarity, let’s not forget that clearly defined contracts can assist heavily in setting out data and data privacy consents, license rights, and so forth

The above issues have been vexing commentators for some time, so it will be fascinating to see how this paper and the ensuing debates around how to answer the questions posed take shape. Throughout the paper there is an emphasis on IP protection as a system of valuing and incentivising human creativity and innovation with the underlying theme being how do we position machine creativity in relation to human creativity? This is all part of the larger debate around how we position AI in our society and economy; is it simply a tool for human use or is it something that should be allowed to evolve on its own terms and potentially develop an identity independent of the human race?

For more information please contact Charlotte Walker-Osborn.