Are AI-generated creations protected by intellectual property law?

While the innovation paradigm in the automotive industry has evolved over time, artificial intelligence (“AI”) has deeply penetrated the workings of the automotive industry. For example, the integration of AI into automobiles has provided access to a wide range of user-friendly functions that were not previously used in the automotive industry, such as autonomous driving, battery management , voice recognition. Some manufacturers are looking to use robots that learn automotive manufacturing skills, such as design, parts manufacturing and assembly, to help human workers. AI is also used in after-sales services, such as engine or battery performance maintenance. Unsurprisingly, the automotive industry is facing new intellectual property challenges, including those traditionally faced with AI technology patents. What if an AI developed a method of navigation or designed a new automobile? Can such work be copyrighted?

The United States Patent and Trademark Office and the United States Copyright Office have both denied claims for intellectual property protection over AI-generated works because the AI-generated works by AI have no “human” authorship or inventor. However, we are seeing some recognitions of inventorship and authorship by AI in non-US jurisdictions. On July 28, 2021, a patent allegedly invented by an AI (named “DABUS”) was published in the Patent Journal of South Africa. Around the same time, the Federal Court of Australia ruled that AI-generated inventions were eligible for patent protection. Similar recognitions occur in the copyright space. For example, the Canadian Intellectual Property Office has registered a copyright for an AI painting titled Suryast in December 2021. A recent UK Intellectual Property Office consultation concluded, maintaining UK copyright protection for AI-generated works.

In the UK Intellectual Property Office consultation, respondents in favor of removing protection argued that there was a lack of ‘originality’ and the potential stifling of innovation by human creators that could result from the volume of work generated by the AI, the vision of which corresponds to the current situation. US copyright law and most other countries around the world. Some have proposed an intermediate solution of creating a new law to protect AI-generated work by offering protection of a significantly shorter duration. In the view of the majority, current UK copyright protection for AI-generated works does not appear to harm; despite the protection offered, only one court case involving computer-generated work (but not AI) has occurred so far. Acknowledging that the use of AI is still in its infancy, the UK Intellectual Property Office said: “[W]We will keep the law under review and may change, replace or remove protection in the future if the evidence supports [the change].”

Indeed, the age of AI is yet to come, and we will see more changes in the law across the world as the age approaches. The direction in which these changes may occur remains in the dark: the few people currently offering protection may step back, more may join the party, or we may see a new system in compromise. Companies will need to keep an eye on these changes to adopt appropriate legal strategies and protection for their global portfolio of AI technologies.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 195

Marjorie N. McClure