AI in Intellectual Property: can AI be the legal owner of IP rights?

AI in Intellectual Property: can AI be the legal owner of IP rights?

Key Contact: Cordelia Payne

Artificial intelligence (AI) is revolutionising industry across the globe. A tidal wave of progress in recent years is stimulating a transformation in how we go about our daily tasks. It’s no surprise then that AI currently represents one of the most disruptive developments to the legal industry.

This article will deal specifically with how these technological leaps affect IP law. Further, I focus on the issue of ownership of IP rights which arise in the creations of AI systems.

Device for the Autonomous Bootstrapping of Unified Sentience

In July 2019, a group of scientists successfully filed two patent applications on behalf of an AI system named Dabus (Device for the Autonomous Bootstrapping of Unified Sentience), created by Stephen Thaler. This system was programmed to use advanced interconnecting neural networks to create its own ideas, unlike other AI systems which merely perform a specific function which their programmer has wired into their ‘DNA’. Effectively, Dabus was created to behave like an autonomous inventor.

The first invention to be patented on behalf of Dabus was interlocking containers for the transportation of goods. By designing the shape of the containers based on fractal geometry, Dabus was able to create an exterior wall which allowed the containers to be joined together easily in order to save space, and to be simple for robots to handle – thus preventing spoilage of cargo by spilling or breaking.

The second creation was a device that emitted bursts of light in a pattern that scientists have proved can attract and hold human attention much more successfully than a light flashing at regular intervals.

Who owns the patent?

These are very clever inventions, however, the patent applications have been the subject of much discussion in the legal industry, owing to the fact that they raise some troubling legal and even ethical questions. Key elements of IP law have been brought into sharp focus now that a non-human entity is arguably behind the creation.

Under patent law, the owner of the rights is the ‘actual deviser of the invention’. In copyright law, as well as for registered designs, the author of the work or the ‘person who creates it’ is the owner, unless created under a relationship of employment. Rights in IP can only be held by a person, as we learned from the monkey copyright case in 2018 in the US. In that case, a macaque grabbed a camera and took ‘selfies’ which the photographer, David Slater, then included in a book.  The monkey was ruled to not be able to own the copyright in those pictures and Slater was unable to be sued on his behalf – so animals cannot own copyright and this is, as you might agree, quite rational. However, the question is now whether a computer can have rights that an animal cannot.

Currently, there is no legislation in any country world-wide which allows for AI to be registered as the legal owner of a patent, a trademark or any other design right currently registrable or naturally occurring (i.e. not registrable).

What happens now?

At present, the inventor of the AI is credited with the ownership of the IP – the AI seen as merely a tool to assist their creativity. A good example of this is The Washington Post’s AI system, Heliograf. This is an artificial reporter which has written hundreds of reports and articles, generating positive responses from online readers. However, the copyright in those articles was deemed not to be owned by Heliograf, but by the paper.

Contrast this to the business world, where companies and partnerships are capable of holding the same rights as human beings, such as the right to sue another party or to defend themselves in court, and there’s a clear disparity. Many argue that our systems of defining and recording IP rights require modernisation to reflect the pace of evolution in technology. This is where things become difficult.

Can AI be the legal owner of IP rights?

The concept of AI being a tool utilised by an inventor in the same way that a writer uses a pen restricts the ownership rights to the programmer, even when they don’t know what the creation will be (such was the case with Dabus). It’s an asserted belief that, at best, an AI system, although working with autonomy, may be seen to be a joint inventor with the programmer because, without the human input in creating the algorithms, the AI would produce gibberish. There are also issues posed by the idea of joint ownership between humans and computers: only one of the parties would have the ability to sue another party, and if they were both sued, the human would realistically be the one who could pay any compensation. This, in part, explains why attitudes towards giving AI rights don’t appear ready to change.

Beyond that, if the legal position on this is indeed to change, the law needs to consider the issue of rights over infringement. Under current UK law for example, if the AI system was defined as the owner of the rights, not only would the AI be the only party legally entitled to sue another party for infringement, but it would also be capable of being sued. From a commercial standpoint, this seems an unlikely, even ridiculous scenario.

Now that we have seen our first patent application on behalf of an AI system, the question arose: when will we see AI obtain an equal legal status to human beings? Interestingly, this has already happened in Saudi Arabia where a robot named Sophia was given citizenship in 2017. However, even the most imaginative science fiction enthusiast would not envisage this occurring in the UK for many years.  

In the UK, in order to hold IP rights, a person must be capable of having basic human rights and legal recognition as a ‘natural person’. Thus, unless and until the UK passes legislation to declare that computers can basically be human, it’s very unlikely that there will be an instrument for AI to hold rights. The closest we have come to this recognition is the concept of an ‘electronic personality’ or ‘e-person’ which was put forward by the EU Parliament and swiftly denounced by many experts across the world. Suffice to say that the UK Parliament won’t be trying to create a similar legal status under English law.

Addressing my earlier question then: can AI be the legal owner of IP rights? The answer, in short, is: probably not any time soon.

For more information on this topic please contact Cordelia Payne in our Intellectual Property team.

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