In our previous blog post on IP considerations for AI, we looked at whether an AI system, its input and output are subject to IP protection. Considering that there are plenty of uncertainties around how AI should be treated under IP laws, we now take a look at how legislators and authorities deal with the issue.
Legislative and regulatory initiatives
Although there is an ongoing broad stakeholder dialogue, relatively little legislative action has been taken to address the IP implications of AI specifically. By contrast, the various IP offices already reflect some of the challenges arising from AI in their guidelines and already use AI assisted tools themselves. Considering the ongoing discussions – and the legal uncertainties – further legislative action seems likely.
In October 2020, the European Parliament adopted a resolution on intellectual property rights for the development of AI technologies. However, this (non-binding) resolution has not yet resulted in specific legislative proposals. The EU’s proposed AI Regulation does not specifically address IP related issues.
However, regional IP offices are much more active in tackling this issue:
European Patent Office (EPO)
AI has been on the radar of EPO for quite some time, both with respect to the use of AI as a tool for the EPO itself but also with respect to questions on inventorship and patentability. The EPO has responded to the emergence of AI in patent applications by refining its approach to patentability of inventions involving AI.
European Union Intellectual Property Office (EUIPO)
Similar to the EPO, the EUIPO is involved in various stakeholder dialogues and also – in the course of the EUIPO’s digital transformation programmes – implementing AI tools, eg for its image search.
In the US, there is currently no federal regulation on AI, but it is clearly front of mind for regulators such as the Federal Trade Commission (FTC), the Food and Drug Administration (FDA) and the Department of Commerce (DoC). Similar to the EU’s proposed AI Regulation, IP matters do not seem, however, to be the main focus of the discussions.
By contrast, the United States Patent and Trademark Office (USPTO) has been considering this issue for some time. It has also conducted a broad stakeholder dialogue on AI and IP policy, the public views of which are summarised in a comprehensive report.
The UK Intellectual Property Office (UKIPO) recently conducted a consultation on AI an IP and proposed several policy options ranging from maintaining the status quo to implementing significant new provisions on AI (eg exceptions for text and data mining, changing the duration of protection for AI related copyright protected works or protecting AI-devised inventions with a new kind of right). This followed the UK government’s call for views on said topic. It remains to be seen whether this will result in concrete legislative proposals, but IP implications of AI are definitely on the legislator’s radar.
In 2019, the World Intellectual Property Organisation (WIPO) launched a conversation on IP and AI, which has provided for comprehensive stakeholder dialogue, with several sessions already held.
It is also noteworthy that the five largest IP offices (the EPO, USPTO, Japan Patent Office (JPO), Korean Intellectual Property Office (KIPO), and China National Intellectual Property Administration (CNIPA)) have decided to advance their co‑operation in the area of new emerging technologies and AI by setting up a special task force together with WIPO to coordinate their initiatives. This is particularly relevant to the employment of AI tools and systems by the offices themselves, applying the patentability requirements to inventions in the field of AI and handling applications for inventions created by machines.
AI users should actively monitor the various stakeholder dialogues and legislative proposals to anticipate any significant changes relevant for their business in time. Furthermore, they should carefully consider the various guidelines issues by IP offices to AI related creations before seeking protection.