AI and Intellectual Property: Ownership, Infringement and Reform

There is nothing new about the current law in the UK relating to the ownership and infringement of IP but its application to AI raises some novel and challenging issues. At the forefront of these is the question of potential infringement of IP rights, in particular copyright, through the learning and output of AI systems. Other important matters include the ownership of AI output and possible reforms to IP infringement exceptions intended to help put the UK at the cutting edge of AI technology.

Could the way an AI tool is trained create a risk of trade mark or copyright infringement?

An AI tool, if not trained on a thoroughly “clean and cleared” dataset, could certainly infringe the copyright or trade mark materials used in its training. This very issue is currently before the UK courts so some additional clarification may soon emerge, although difficult jurisdictional issues meant that some arguments were dropped. While it seems to us likely that most AI training processes will involve the copying of source materials, the application of statutory exceptions to copyright infringement here in the UK, such as non-commercial text and data mining, and the temporary copies exception, will be important areas for consideration. Potential reforms in this area are currently being looked at by the UK government. There are also other IP rights to consider such as database rights, patent rights and confidential information.

What are the risks of IP infringement from AI-generated outputs?

It is possible that an AI tool could produce materials that are identical or similar to an existing copyright work or trade mark. It is however unclear whether the developer or provider or indeed the user of such a tool could be liable for infringement. There are certainly risks here and a forensic approach will be required to assess the facts in any specific case.

Who owns the IP rights in AI-generated works?

Under current UK legislation, copyright ownership in a computer-generated work vests in the person by whom the arrangements necessary for the creation of the work are undertaken. The recent government review suggests this is likely to be the user of the AI tool, but again this is not certain.

Can AI and AI generated works be protected by IP rights?

Questions have also been raised as to whether an AI generated work can be protected by copyright due to the requirement of originality which arguably requires some human input. This topic is currently another subject of review by the UK government. In relation to patents, the Supreme Court has decided that AI cannot be an “inventor” for the purpose of patent law and that the owner of an AI system is not entitled to patent protection for inventions generated by the AI by reason of ownership of the AI system. The question of whether an AI system itself is patentable is currently awaiting a decision of the Supreme Court..

Managing AI-related risk

Awareness of the potential risks is key. A period of uncertainty is inevitable, but as highlighted above, transparency in the use of training data is important. Consider dealing with certain potential risks contractually. be this through a licence fee for use of data (a route being looked at by collective societies such as the Copyright Licensing Agency), contractual provisions as to ownership, or indemnities as to potential infringement. The global nature of AI alongside the territorial and non-uniform nature of IP also needs to be remembered.

What’s next for AI and Intellectual Property Law?

Following a consultation process at the beginning of the year, the UK government has now formed expert groups to consider potential changes in the areas we have highlighted above. The political debate and strength of feeling surrounding potential changes to the law were highlighted by amendments proposed during the passage of the recent Data (Use and Access) Act.  In the end, the proposed copyright provisions were removed, although some reporting provisions relating to the government consultation were incorporated. As implementation of the EU AI Act continues and other jurisdictions implement their legislative changes and reach their own court decisions, it is clear that there will still be a number of IP issues on the horizon to navigate.