AI on IP: should artificial intelligence own IP rights?
The question of whether AI should be able to own intellectual property (IP) rights is a complex and controversial one that has yet to be fully resolved by the legal system.
Currently, the prevailing view is that IP rights such as patents, trademarks, and copyrights are only granted to natural persons or legal entities such as corporations. This is based on the idea that IP rights are meant to incentivize and reward human creativity and innovation.
However, there are arguments in favor of granting AI systems IP rights. For example, AI systems can create original works such as music, literature, and art, and it could be argued that these works should be protected by IP law. In addition, granting IP rights to AI systems could provide incentives for the development of AI technology and encourage investment in the field.
Ultimately, the question of whether AI should be able to own IP rights will likely depend on the specific legal and ethical framework that is established for AI systems. Until a more concrete legal framework is established, the issue of AI and IP rights remains unresolved. (AI-generated content).
You might be fascinated to know that this is what Artificial Intelligence said when I posed the question: should AI own IP rights? I thought it would be interesting to ask AI itself what it thinks on this controversial topic, so I jumped on the bandwagon and interviewed ChatGPT.
You’ve probably already heard of ChatGPT—its profile blew up over the summer holiday, gaining day-to-day relevance as an AI-based chatbot system that effectively uses natural language processing to generate conversations. Launched by San Francisco-based OpenAI at the end of last year, ChatGPT is initially free to the public, but the service will be monetized later.
While I “interviewed” ChatGPT, my kids had fun asking it to write song lyrics, limericks and poems. What ChatGPT answered each time it was asked a question was compelling—and, I presume, its own original words.
But it’s with originality in mind that we find our way to the prevalent legal debate on AI.
ChatGPT and original works
Original creative works are capable of protection under copyright and patent laws. But our intellectual property laws consider authorship, inventorship and ownership in a very human context—rewarding humans (and our corporate employers) with legal rights in relation to creative output.
Indeed, our intellectual property systems have been designed to incentivise human innovation and creation. Until very recently, such innovation and creation was one of the defining characteristics of the human species.
Where does that leave AI as the creator/inventor and therefore the owner?
ChatGPT’s answer (whether or not its own original words) simply reflects the prevailing view, which is that IP rights should only recognise human creative effort, by granting ownership of IP rights to the individual (human) creators or their corporate employer.
The prevailing view casts AI, no matter how helpful, as the “tool” to solve the problem. In that framework, our intellectual property laws are not challenged because the “tool” is not deserving of being named as the inventor or the author.
The more self-serving aspect of ChatGPT’s response is that AI systems should be granted IP rights to protect their own original works—and to incentivise the development of AI technology and encourage investment in the field. This is perhaps why the very principles of our IP system are already being
challenged, particularly with regard to patent rights and inventorship.
Challenging the IP system
Around four years ago, Stephen Thaler filed two patent applications naming a single inventor, an AI program. The U.S. Patent and Trademark Office (USPTO), following Director review, found the applications to be incomplete for lacking a valid inventor on the ground that a machine cannot be an inventor.
Thaler appealed the USPTO's final decisions to the District Court, which similarly concluded that an "inventor" must be a natural person.
Thaler then appealed to the U.S. Court of Appeals for the Federal Circuit, with the sole issue being whether AI qualifies as an "inventor" under U.S. patent law. The answer (for now) is no. (Thaler v. Vidal, No. 21-2347, *2 (Fed. Cir. Aug. 5, 2022)).
(Thaler also attempted to register a copyright for artwork entitled “A Recent Entrance to Paradise,” in which Thaler identified the author as a software AI named the “Creativity Machine.” Thaler was simply noted as the owner of the software. The Copyright Office refused registration on grounds that U.S. law. does not recognize AI authorship. In February of 2022, the Copyright Review Board affirmed the refusal.)
The U.S. is not the only country that does not allow AI to be an inventor.
A general appellate court in the United Kingdom also recently decided against AI inventorship for Thaler's patents. The U.K. Court of Appeal (Civil Division) similarly looked to the country's patent statute, under which an "inventor" must be a "person" to be an actual deviser as required in the statute.
However, in Australia, the Full Court of the Federal Court found that AI could be an "inventor" because Australian law did not preclude such an interpretation, and the court recognised "the evolving nature of patentable inventions and their creators."
And the South African Patent Office, which has no substantive patent examination system, has granted Thaler's patent naming AI as the inventor.
How will AI change the way we think about IP?
ChatGPT is a fascinating insight into the power of AI and its day-to-day relevance and practicality— not to mention, a foreshadowing of just how prolific AI will become when it’s easy to use, well read, insightful and engaging.
Encouraging investment in the field of AI means there must be a payback for the investors. So, prolific creativity and invention would then (at its extreme) beat all available human resource to the punch, time and again.
If our laws and our IP system are not carefully considered, we could find that AI pushes our society in the same direction as social media giants and other behemoths in the tech space—democratising the dissemination of information and improving productivity, but while creating prolific and omnipresent
platforms that dominate (and eventually monopolise) information. The outcome? The redundancy of traditional businesses and careers, reserving the profits borne from creative pursuits to those that own the technology platform and have the rights and means to commercially exploit that platform.
Conspiracies aside, for now the AI has its limitations. The AI’s outputs are not the result of extensive internet searching or any understanding of context or nuances (although it gets close on the latter), those outputs are based purely on the data it is trained on.
But as AI continues to emerge as a general-purpose technology with widespread applications throughout the economy and society, fundamental questions that sit at the heart of our existing IP systems remain:
- Does AI innovation and creation need IP incentives?
- How should the value of human invention and creation be balanced against AI innovation and creation?
- Does the advent of AI require any changes to the existing IP frameworks?
To the writer’s mind, the question most central to our IP system and the AI debate is: should AI be granted a legal personality?
For now, AI is in a box. Despite some increasingly ‘human’ traits, AI is not human and our legal system preserves IP ownership exclusively to humans and their corporate employers (which we recognise as being a separate legal person of sorts).
That said, our corporate employers are not human, they are a fiction of sorts that are only entitled to legal rights like “ownership” because we have embraced their personality in our legal system.
Time will tell if there is room for AI to be recognised as ‘human’ in the future?
Special thanks to Partner Michael Moyes for preparing this article. For more information on AI or how emerging technologies may affect your business or organisation, contact a member of our Data Protection and Privacy Team.
Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.