UK government wants the UK IP policy to be at the forefront of the artificial intelligence and data revolution
Current IP framework for AI needs minor tweaks to meet the challenges of the future
15 April 2021
On 23 March 2021, the UK Government's Intellectual Property Office (UK IPO) published its response to its consultation on the implications artificial intelligence (AI) may have on intellectual property (IP) policy.
The Consultation ran from 7 September 2020 to 30 November 2020. In September 2020 the UK IPO launched a consultation on the implications AI may have for IP policy with an aim to understand how the current IP framework relates to AI, as well as those issues that are considered to be of central importance to the future of AI and IP policy. The call for views closed on 30 November 2020 and now the government has published the outcome of the Consultation and its response.
A group of 92 participants which included those who owned and used IP rights as well as academics and interested members of the public provided responses.
The Consultation was extensive, covering the law of patents, copyright, trade marks, designs, and trade secrets. The outcome of the Consultation was a general agreement that the current IP framework for AI could meet the challenges of the future. However, there were notable concerns raised in respect of AI overstepping the human element of the process of creation and protection of works. Concerns were raised that AI could take the humanity out of the creative process, and there was a general agreement that AI itself should not own IP rights. The government's response in respect of trade marks, designs, and trade secrets was that no action was required at this stage, although for trade marks and designs the government noted an intention to keep the matters raised by the Consultation under review.
Patents and AI
The two main issues arising from the Consultation in respect of patent law were, perhaps unsurprisingly, the issues of inventorship and exclusions from patentability. On the question of inventorship, the Consultation identified mixed views as to whether the inventorship criteria, in particular that a human must be identified as the inventor, could act as a barrier to innovation; the inventorship criteria may impact patent availability for those inventions that were generated with the assistance of, or even by, AI. This may disincentivise investment in AI research and lead to less transparency in the innovation process. The government announced plans to consult on a range of possible policy options, such as legislative change, on this question. The government stated it plans to start this consultation later this year.
As regards to the exclusion from patentability, the government noted that the responses highlighted a need for better clarity and predictability in outcomes when applying for AI invention patents, along with the need for better international harmonisation in the exclusion practice across patent offices. To address these concerns the government plans to published further guidelines on patent exclusion practice. It also plans to commission an economic study and engage with other government departments, each in order to assess whether an additional intervention is required.
Copyright and AI
The Consultation focussed on three areas in respect of copyright; the use of copyright works and data by AI systems, subsistence of copyright in AI-created works (and its ownership), and protection of AI software. The first two areas raised the most questions and areas for further exploration.
The importance of the use of copyright-protected material in relation to training AI systems was also recognised, with the access of these materials and the use of licensing for this access being a key point to review. Some argued copyright restrictions made access difficult and licensing costs that may be affordable for established or large businesses would pose a barrier to start-ups, micro and small businesses. However, others argued that the current licensing framework was adequate and available to those who needed it. Many of the responses focused on text and data mining and the present exception that provides for text and data mining for the purposes of non-commercial scientific research. The government has committed to exploring the merits of text and data mining exceptions in more detail, including to consult on measures to make licensing easier to support innovation and research.
The question that perhaps receives the most coverage on the topic of AI and IP is whether copyright can and should subsist in AI-generated works. Unsurprisingly the Consultation received a significant number of responses on this topic. The Consultation identified that, in relation to works created solely by AI there was a view that these works should not be provided any protection at all, or that if they should be given protection, it should be under a separate category right, with reduced duration and scope. Many respondents highlighted the importance of the human element in the creation of works and that human creators should be put first in order to maintain the human incentive for creation and dissemination. A number of responses also raised that the current approach to computer generated works under the CPDA was unclear.
The government agreed that there is a case for re-evaluating the approach to computer generated works, and that there may be a case for offering works a different level of protection where generated without any human input at all. Accordingly, the government plans to consult on the question of whether it is right to limit copyright to works created by humans, and at the same time whether the computer-generated works regime should be replaced with a related right.
The UK government wants the UK to be at the forefront of the artificial intelligence and data revolution. This Consultation forms part of the UK government's wider aim for the UK to be at the forefront of the AI sector, following on from the AI Sector Deal and R&D Roadmap published by the government within the past year.
In light of this ambition and the Consultation, the government has stated that it aims to ensure that any measures that are implemented:
- "encourage innovation in AI technology and promote its use for the public good;
- preserve the central role of IP in promoting human creativity and innovation; and
- are based on the best available economic evidence."
The government's broader strategy on AI and IP continues to progress with further actions to build on the responses from this Consultation, including those set out above, anticipated to begin from Spring 2021.
Molly Margiotta, Trainee, London IP Group, contributed to the writing of this article.