AI and IP
One step forward for harmonizing a legal framework in Europe
08 October 2020
On 1 October 2020, the European Parliament's legal affairs committee adopted three reports on artificial intelligence (AI), covering ethical, civil liability, and intellectual property (IP) aspects. This article will focus on the motion for a European parliament resolution on IP rights for the development of artificial intelligence technologies. AI has emerged as a general-purpose technology with widespread applications throughout the economy and society. It is clearly one of the hottest topics of 2020 and beyond.
An operational legal framework for the development of European AI to be created
AI is everywhere and needs to be clearly defined.. Its definition is still a matter for debate. According to WIPO, AI is a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence, with limited or no human intervention.
In light of this definition, it is obvious that AI is having a significant impact on the creation, production and distribution of economic and cultural goods and services. As such, AI intersects with IP at a number of different points, since one of the main aims of IP is to stimulate innovation and creativity.
If the area of AI is already in mind of the European Commission, in particular with the publication this year of the White Paper on "Artificial Intelligence – A European approach to excellence and trust" or the communication entitled "A European Data Strategy", the issue of the protection of IP rights (IPRs) in the context of the development of AI has to be taken more seriously since international competition in this strategic area is strong.
It is therefore important that the European Union adopts an operational legal framework for the development of European AI and public policies with a kind of flexibility to take account of the multifaceted reality of AI and create a framework that is future-proof, especially regarding IPRs to encourage and protect innovation and creativity in this field.
No legal personality given to AI technologies but considerations must be given to protecting technical invention generated by AI
According to the adopted report, considerations must first be given to assessing patent law in light of the development of AI.
Patents protect technical inventions, i.e. a product or a process that provide a new technical solution to a given technical problem. The technical effect should be more than simply a way to get the solution to a problem more quickly.
Patent protection can be granted, provided that the invention is new, involves an inventive step and is susceptible of industrial application. More specifically, patent law requires a comprehensive description of the underlying technology (sufficiency of disclosure), this requirement may pose challenges for certain AI technologies in view of the complexity of the reasoning, especially as there will be a debate over "black boxes" since it will be difficult to explain how the AI system works, how it solves a technical problem so that the skilled person can reproduce the invention.
When you talk about AI and patentability, it is fundamental to draw a line between AI-assisted inventions and AI-generated inventions. The first ones relate to inventions generated with material human intervention and/or direction. The second ones are those without human intervention and where AI is able to change its reasoning at any stage of the process.
As of today, it is clear that patent protection for AI-assisted inventions is possible. Guidelines of some Patent offices, including France, have been specifically updated in this regard. The rapport provides interesting figures revealing that patent applications registered by the European Patent Office for inventions directly related to the operation of AI have more than tripled in the last decade.
This does not mean that it is an easy thing to get patent protection in Europe since AI relates mainly to algorithms, mathematical methods and computer programs, which are not patentable under the European Patent Convention. However, they may form as part of a technical invention that can be patented.
Clearly, numerous questions remain to be answered regarding patentability of invention, e.g. AI inventorship. Earlier this year, the EPO dismissed two patent applications designating Dabus AI as inventor. Dabus AI replicates human cognition. It can create products such as light or food containers and adapt scenarios without human intervention.
In the proceedings before the EPO, the issue of who would be deemed as the inventor of the products at issue has been mainly discussed. The EPO, like the USPTO and more recently the UKIPO, followed the current global reasoning according to which only humans can be named as inventor and AI, like Dabus, is only a tool.
An appeal has been lodged pending in those proceedings, Dabus counsels are arguing that if AI is not recognized as inventors, humans may be attributed credit for inventions that they did not actually invent. It is difficult to understand how AI can enjoy the benefits of the patent monopoly.
In any case, the European Parliament's legal affairs committee seems to not follow Dabus' counsels reasonings since the report states that "it would not be appropriate to seek to impart legal personality to AI technologies".
If numerous issues remain pending, a legislative flexibility regarding patent protection should be taken into account due to the multifaceted reality of AI. This is crucial for the deployment of a competitive and efficient protection in Europe.
Protection of certain artistic creations generated by AI and copyright ownership to the natural person who prepares and publishes a creative work lawfully
According to the report, there are also hurdles to clear with AI and copyright. At a time where artistic creation by AI is becoming more common, we are moving towards an acknowledgement that an AI-generated creation could be deemed to constitute a work of art on the basis of the creative result rather than the creative process.
The requirement of originality, which imprints on the work the personality of its author, could constitute an obstacle to the protection of AI-generated creations.
An example is the Next Rembrandt painting generated after 346 works by the painter were digitized so that they could be processed using AI. For a traditional work of art, copyright is automatic, received by the creator as soon as the work is “put to paper.” With the Next Rembrandt, we are not talking about a single artist. The creation of this masterpiece involved many participants, such as the team members and the companies that commissioned the algorithm that generated the work. Although, the work itself was created by a computer, a failure to protect AI-generated creations could leave the designers of such creations without rights.
In light of the above, it seems important to determine (i) who may hold the copyright and (ii) whether computer-generated art fulfills the basic requirements necessary to receive copyright protection.
The report adopted by the European Parliament shed some light on two points:
- certain works generated by AI can be regarded as equivalent to intellectual works and could therefore be protected by copyright; and
- ownership of rights be shall be assigned to the person who prepares and publishes a work lawfully, provided that the technology designer has not expressly reserved the right to use the work in that way.
As a result, it is proposed that a copyright protection could be granted to the natural person who prepares and publishes a creative work lawfully, provided that the designer of the underlying technology has not opposed to such use.
To be considered as the designer and to be granted IPRs does not mean that the designer will be liable.
It is important to note that the report dealing with civil liability regime for artificial intelligence held that civil liability claims against the deployer of an AI-system seems relevant. The deployer is the person who decides on the use of the AI-system, who exercises control over the risk and who benefits from its operation. A future debate will certainly occur to know if the designer should also be considered as the deployer.
All in all, the two above motions for the development of artificial intelligence technologies would foster an environment conducive to creativity and innovation by rewarding creators since the role of human intervention remains fundamental to the programming of AI devices, the selection of input data and the application.
 WIPO conversation on intellectual property (IP) and artificial intelligence (AI) - Second Session, date of 21 May 2020.
 Commission White Paper of 19 February 2020 on Artificial Intelligence - A European approach to excellence and trust (COM(2020)0065)
 From 396 in 2010 to 1264 in 2017
 On 25 November 2019, 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.
 England & Wales High Court, 21 September 2020 - Thaler v The Comptroller-General of Patents, Designs And Trade Marks  EWHC 2412 (Pat).