Artificial Intelligence and Intellectual Property

Jane Lambert

I hope all my readers had a good Christmas and I wish them a happy and prosperous New Year,

A hot topic for the New Year is likely to be the legal protection of inventions, artistic and literary works, designs and other intellectual assets that are created by machines.  Three of the papers of the Life Science IP Conference which was held at at the Millennium Gloucester Hotel on 26 and 27 Nov 2019 addressed the topic as did two of the papers at the International Copyright Law Conference which was held in London a few days later.  Francis Gurry, the Director-General of the World Intellectual Property Organization (the UN specialist agency for IP) discussed the subject in an interview entitled Intellectual property in a data-driven world which appeared in the October issue of the WIPO Magazine.

This is not a new subject.  I can remember articles and conference papers on the topic for as long as I have been at the Bar.   It was addressed by Parliament as long ago as the late 1980s in that s.9 (3) of the Copyright, Designs and Patents Act 1988 provides:

"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."

What is new is that we now have technologies that appear to be capable of creating works of art and inventions.

At the International Copyright Law Conference, delegates were shown a film trailer that had been created by a machine that had taught itself how to make trailers by studying films and trailers that had been made by human beings.   As far as I could tell, it was just as good as any trailer that had been made by film and marketing professionals. According to a press release of 20 Dec 2019, the European Patent Office has refused two European patent applications in which a machine was designated as the inventor (see EPO refuses DABUS patent applications designating a machine inventor 20 Dec 2019).  The press release adds:

"After hearing the arguments of the applicant in non-public oral proceedings on 25 November the EPO refused EP 18 275 163 and EP 18 275 174 on the grounds that they do not meet the requirement of the EPC that an inventor designated in the application has to be a human being, not a machine. A reasoned decision may be expected in January 2020."

It is therefore timely that the WIPO has launched a public consultation process on artificial intelligence and intellectual property policy, inviting feedback on an issues paper designed to help define the most-pressing questions likely to face IP policymakers as AI increases in importance.  Responses are required by 14 Feb 2020 (see the WIPO press release WIPO Begins Public Consultation Process on Artificial Intelligence and Intellectual Property Policy  13 Dec 2019).

Anybody wishing to discuss this article or artificial intelligence and intellectual property generally should call me on 020 7494 5252 during normal business hours or send me a message through my contact form.