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.
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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
Prof. Guido Noto La Diega 