Who owns AI creations?

The World Intellectual Property Organization (WIPO) has received more than 250 responses to its call for public comment on a Draft Issues Paper on Intellectual Property Policy and Artificial Intelligence, with submissions collected from a wide array of stakeholders from across the globe.

I am one of the experts who submitted their comments. My main recommendations are as follow:

A. The scope of WIPO’s policies and documents regarding AI should be better defined by both defining AI and, given that AI is a controversial and fuzzy umbrella term, the focus should be on the main AI technologies, starting with machine learning.

B. The law should exclude from the availability of patent protection any invention that has been generated autonomously by an AI application.

C. As for AI-aided inventions, their examination should be stricter and the main means to achieve this end would a shift from the ‘person skilled in the art’ to the AI-enhanced researcher.

D. Prior art should not be limited to the field of technology of the product or service that emerges from the invention; it should include also the fields that are related to it and may be affected by it. AI-generated content should quality as prior art.

E. A condition of the renewal of a patent should be the renewed disclosure of the machine learning algorithm as is at the date of the request of renewal. A system of deposit for algorithms, similar to the deposit of microorganisms, would be useful. The data used to train the algorithm should be included in the disclosure.

F. A sui generis right should be considered as an option both for AI inventions and AI works (collectively ‘big machine data’). Such sui generis right should be accompanied by binding and mandatory fair use provisions; contracts and technological protection measures should not be allowed to sidestep or run counter the sui generis fair use. WIPO should commission legal and economic studies to assess the viability and impact of such a proposal.

G. AI works fall outside the scope of copyright law. They are not their author’s own intellectual creation, they do not carry their personal touch, nor are they the result of free and creative choices.

H. AI should not be given legal personality. Such a personality would not cope well with copyright rules and principles and could be used by human infringers to attempt to escape liability.

Please download the full text here

Cite as Guido Noto La Diega, ‘Comments on WIPO’s Draft Issues Paper on Intellectual Property and Artificial Intelligence’ (WIPO/IP/AI/2/GE/20/1) (WIPO.int, 21 December 2019). WIPO Public Consultation on AI and IP Policy. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3551908

Published by guidonld

I am Associate Professor of Intellectual Property Law and Privacy Law at the University of Stirling, Faculty of Arts and Humanities, where I lead the Media Law and Information Technology Law courses. I am an expert in the legal issues of Internet of Things, Artificial Intelligence, cloud computing, robotics, and blockchain. Holder of a PhD (Unipa), a postdoc (QMUL), and an HEA Fellowship, I have a strong publication and bidding record and my works on Intellectual Property, Data Protection, Information Technology Law, Consumer Protection, and Human Rights have been cited by the EU Court of Justice’s Advocate General, the House of Lords, the European Commission, and the Council of Europe. Outside of the University of Stirling, I am Director of ‘Ital-IoT’ Centre of Multidisciplinary Research on the Internet of Things, Visiting Professor at the University of Macerata, Fellow of the Nexa Center for Internet and Society, Fellow of NINSO Northumbria Internet & Society Research Group, and I serve on the Executive Committee of the Society of Legal Scholars, the oldest and largest society of law academics in the UK and the Republic of Ireland. Most of my publications can be downloaded for free on SSRN, ResearchGate, Academia.edu, and LawArXiv.

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