It is undeniable that artificial intelligence has arisen as a general use technology that each time is more used in several fields of the human activity and that is acquiring every time higher importance in all sectors of economy and society. In fact, it is having a significant impact in the creation, production and distribution of goods and the rendering of economic and cultural services, and it is pretty sure that said impact will be increasing in the immediate future.
It is worth mentioning that there is interrelation between Artificial Intelligence and Intellectual Property in their several fields since the fundamental objective of the latter is to stimulate innovation and creativity in economic and cultural systems and for attaining said objective, Artificial Intelligence has become an important tool. In this context, Artificial Intelligence has been capturing the attention of country’s leaders, legislators and authorities responsible for the protection of Intellectual Property to the extent that some countries already consider it a strategic capacity. Nevertheless, its concept is still in discussion and the existing rules and international agreements have not established sufficiently clear and adequate rules for regulating the creation, production and distribution of Intellectual Property generated by the use of Artificial Intelligence.
To go into this subject in more depth, let us start defining what Artificial Intelligence is. It would be defined as the intelligence produced by a computer program that allows a machine to perform tasks that imitate human intelligence by the automatic and in-depth learning for continuously improving and adopting decisions without the need of a specific programming by means of a sequence of instructions in various steps.
Patents and Artificial Intelligence
For example, in the field of Invention Patents, Artificial Intelligence can be used in the invention process, in some cases to the extent of calling in doubt if the invention corresponds to the inventor or if it has been created basically by the Artificial Intelligence. This can face Law with questions, such as to whom paternity and ownership of the invention belong, and if the patent regime results suitable for a due protection of the inventions created by Artificial Intelligence. Even though the inventions generated by the use of Artificial Intelligence could be put on an equal footing with the inventions created by the computer, the intervention of Artificial Intelligence in the inventive process can be so significant that human intervention can result minimum or nonexistent For the time being, the European Patent Office has denied patent applications EP 18 275 163 and EP 18 275 174 in which the Artificial Intelligence DABUS was designated inventor and in which the applicant declared being the owner of the invention and having the right to request protection, in a derivative way, for being the owner of the inventor machine. The Patent European Office decided in first instance that Patent regulations implied that the inventor had legal status, which neither machines nor artificial intelligence had.
But questions that arise in this context are many, starting by the need of determining if an application of Artificial intelligence can be recognized as inventor of an invention created by the use of Artificial Intelligence or if, as traditionally understood, the inventive act can only correspond to the human being. Now then, if the inventor category only corresponds to the human being, it is valid to wonder if inventions generated by the use of Artificial Intelligence correspond to public domain and if so, which other protection mechanisms could be applied to said inventions for deserving an adequate legal protection since far from any doubt is the fact that, who invested time and money in developing the invention or the Artificial Intelligence which finally developed the invention, has the right to enjoy the benefits produced by said invention. If, on the contrary, an Artificial Intelligence application is designated as the only inventor, then it shall be determined if the paternity of the invention must be or can be shared with the human being or at least establish that to the latter or to its assignees should correspond the ownership of the rights to use the patent.
Moreover, we have stated that inventions created by the use of Artificial Intelligence could be put on an equal footing with the inventions created by the computer. Nevertheless, software patentability is not worldwide harmonized. In fact, in many legislations computer programs per se are not considered patentable inventions. Consequently, it could happen that certain inventions related to software or computer programs be considered patentable matter in one jurisdiction, whereas the same inventions remain outside the scope of the patentable matter in other jurisdiction. To solve these differences, it would be necessary to determine if inventions created by Artificial Intelligence must be excluded from patentability or if inventions created by Artificial Intelligence must be given the same treatment as the one given to inventions generated by the computer, or if, finally, a special protection system must be established for this type of inventions, all of this in order to harmonize the legal approach.
Likewise, regarding the patentability requirements and particularly the inventive step which is necessary for the recognition of protection of a patent, we have that one of the patentability conditions is that the invention not be evident for one skilled in the art, which implies that the invention must not be obviously derived or detached from the prior state of the art, that is, from the knowledge that already exists in the field or specific area in which it is inserted. In this context, it is valid wandering if it is necessary in inventions created by the use of Artificial Intelligence to maintain the conventional criteria of inventive step that are initially associated with acts of human creation. If it were like this, we should wonder if the technical level required by law results applicable mutatis mutandis to the inventions created by the use of an Artificial Intelligence or if the same must be changed for an application of Artificial Intelligence which learning has been made with specific data of a designated technical field, in other words, considering as state of the art the content generated by the Artificial Intelligence.
Copyright and Artificial Intelligence
In the field of Copyright, creations generated by the use of Artificial Intelligence are not free of several legal questions either. Most laws in this matter establish that Copyright is destined to protect human inventiveness creations that are original. In this context, in the cases in which there is no human participation during the creative process of the work and this is exclusively and independently generated by Artificial Intelligence, Copyright does not exist as this right seeks solely the protection of human inventiveness creations.
In the cases in which the work is created with the support of Artificial Intelligence, and namely in the cases in which a person participates or gives instructions on the specific way to carry out the work, it could be admitted granting a Copyright on the creation considering the human participation in the creative work. In such event, Artificial Intelligence would be considered a tool that is used for creation, as can be a computer, a paintbrush or a musical instrument.
Of course there will be intermediate cases or gray zones in which it will be impossible to specifically establish the degree of participation of the person participating or giving instructions to carry out the work, and these cases would have to be studied case by case and authorities will be able to give opinion in such cases, which obviously produces legal uncertainty.
For the time being the authorities of different parts of the world when facing the problem have tent to argue that the Copyright Act would not be applicable to works created with the support of Artificial Intelligence or otherwise, they incorporate this type of creations as works created with the support of a computer. For example, in the United States of America, its Copyright Office has jurisprudentially declared that only will be registered original works that have been created by human authors ((Case Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991)) and also specified that the Copyright Act solely protects the fruit of an intellectual labor derived from human mental inventiveness. In similar manner, in Australia the caselaw of the courts therein determined that a work created by a computer will not be protected as Copyright since it would not be a human creative work, underlining the fact that there is no human participation in the creative process of the work (Case Acohs Pty Ltd v Ucorp Pty Ltd).
Likewise in the European Union, the Justice Court of said community has declared in several decisions that only original works are protected by Copyright and this originality must reflect the mark of the personality of its creator (Landmark Infopaq decision C-5/08 Infopaq International A/S v Danske Dagbaldes Forening). Moreover, in the United Kingdom its legislation confers the ownership of the rights of the work created by a computer on the programmer. This is established in the Copyright, Designs and Patents Act -CDPA- Section 9(3) which states that “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”. In accordance therewith, Section 178 of the same Act states that “computer-generated work will mean the work in which there is no human author of the work”. The laws of India, Ireland, New Zealand and Hong Kong follow the same criterion.
However, if for a moment the possibility of extending the Copyright protection to the works created with the support of Artificial Intelligence were admitted, questions anyway would come up such as: To whom the ownership of the rights would be attributed? To whom the Artificial Intelligence created? To the person who participates or gives the instructions to create the work? To the producer, employer or the party who commissions or to the commissioned party or employee? To the legal entity which financed or organized the creation of the work? And with respect to the Moral Rights closely related to the person to the extent that there are those who consider them a human right or of the author’s personality, to whom these rights would correspond or simply these would not be recognized in anyway?
Now then, if the possibility of protecting the works created with the support of Artificial Intelligence is not admitted in accordance with the Copyright laws, it should be understood that they would simply fall within the category of Public Domain, but this would not seem a very fair solution to compensate those who invested time and money to create the work nor would justify third parties from exploiting commercially and freely such work, which would constitute unfair enrichment. This scenario would not be stimulating to promote intellectual creation and would cause an excessive secrecy of the intellectual creations which, in turn, would not benefit society since it could not make use of said creations in its favor. In this context, it is valid to wonder if letting the works created with the support of Artificial Intelligence fall into public domain is a reasonable legal solution or if other protection mechanisms that could be applied to said creations in order to deserve a suitable legal protection should be explored.
On the other hand, regarding the field of the infringements against copyright, it is worth mentioning that within the process of automatic and in-depth learning made by the Artificial Intelligence itself for continuously improving and adopting decisions without the need of a specific programming by means of a sequence of instructions in various steps, it is feasible the use of works protected under Copyright that belong to third parties. Then, it is worth wondering if the use of said works automatically by Artificial Intelligence can constitute an infringement to the Copyright of said works, and if so, to what extent restricting the free flow of information can affect the creative process in the field of Artificial Intelligence or if provisos or limitations to Copyright must be established with respect to such uses or compensating payments must be made to the owners of the rights of the works used by Artificial Intelligence in its self-learning and creation process. Likewise, if copyright infringement occurs, it is valid wondering who would be responsible for said infringement in the case of the use of third parties’ works involved in the creative process of the Artificial Intelligence, particularly if in the resulting work there have been no participation of the human being, that is, the work has been the result of the self-learning of the machine itself.
By the way, we have only referred succinctly to some of the most remarkable questions in the scope of Artificial Intelligence and its relation with Intellectual Property but there are more questions that the extension of this article does not allow to raise. What is clear is that a wide international debate in multilateral forums must be promoted in order to clear the doubt of whether it is necessary to provide the inventions and intellectual creations generated by the use of Artificial Intelligence with a special legislation since the importance of the latter deserves it.