In recent days, the discourse surrounding Artificial Intelligence (AI) and Intellectual Property Rights (IPR) has captured the attention of the technology and artistic creative communities…
It is evident that AI-generated products are steadily increasing each day, presenting both new opportunities and challenges. However, presently, no national law or international convention has been enacted concerning the protection of creative works authored by an AI “creator.”
Therefore, the interpretation of current law regarding AI creations falls under the purview of national IPR registration bodies, as well as the courts. Generally, the prevailing trend is to reject the recognition of AI as an inventor of patents, or to deny recognition of AI’s creations as copyright-protected works. However, there do exist “exceptions” to this general trend.
In the field of patents
In 2020, the United States Patent and Trademark Office (USPTO) refused to grant patents for two inventions created by an AI system named Dabus, which included a system for interlocking containers to facilitate easier cargo transport and a system for automatically alerting when breathing patterns show anomalies.
The creator of Dabus, physicist and AI researcher Stephen Thaler, filed the patent application, but he did not want to be listed as the inventor since these were creations generated by Dabus. According to the USPTO, because U.S. law uses the term “whoever” when referring to the concept of an “inventor,” only a human can be considered an inventor. Creations made by machines, therefore, cannot be granted patents. In early 2023, the U.S. Supreme Court also declined to review Mr. Thaler’s objection to the USPTO’s decision.
Mr. Thaler also attempted to register patents for Dabus in the UK, Europe, and South Africa. According to the UK Intellectual Property Office (UKIPO), Dabus invented the two aforementioned innovations. However, under English law, Dabus is a “machine,” not a “person,” and thus cannot be listed as an inventor. Furthermore, another legal issue arises since Dabus is a machine, it cannot demonstrate how patent rights were transferred from the machine to the applicant, Mr. Thaler.
Another equally significant consideration is how to formulate IPR laws that effectively promote technological innovation and encourage creativity, whether it be AI-generated or otherwise.
Choosing the same approach, the European Patent Office (EPO) also refused to grant patents for AI-generated inventions by Dabus. This agency posited that Dabus’s inventions “do not meet the requirements of the European Patent Convention, which stipulates that the inventor named in the application must be a human, not a machine.” The EPO issued this decision based on Articles 81 and 19 of the aforementioned convention.
It seems that South Africa is the only country accepting patent applications for Dabus. In July 2021, the South African Intellectual Property Office made this decision, based on the fact that South African law does not provide a definition of an “inventor,” so as long as the invention meets technical criteria, it will be protected. Recognizing AI as an inventor remains exceedingly rare worldwide up to this point.
In the Field of Copyright
At the beginning of 2022, the U.S. Copyright Office (USCO) declined to protect the painting “A Recent Entrance to Paradise,” which was generated by AI (also registered by Mr. Steven Thaler under the authorship of the “Creative Machine”), as the work was not created by a human. In 2023, the USCO reached a similar conclusion regarding the work “Zarya of the Dawn” – a graphic novel comprising content written by author Kris Kashtanova and illustrations generated by AI entity Midjourney.
According to this determination, “Zarya of the Dawn” fulfills the copyright protection criteria, but specifically, the images generated by AI will not be afforded copyright protection. In accordance with guidance issued by the USCO in March 2023, the USCO will assess whether the AI’s contribution is purely the result of mechanical processes or the intellectual input of the author.
There is no one-size-fits-all answer, and USCO decisions on copyright registration will depend on specific circumstances. Currently, the USCO maintains a tendency not to recognize AI authorship rights.
Meanwhile, a court in China has recognized an article written by AI as a creative work. According to the judges of the South Sa Court, the content of the article demonstrates the ability to select and analyze information, present it in a logical and clear manner, and is evidently “creative.” For this court, the fact that AI is not a human does not present any specific obstacle to copyright law.
Recent Development from U.S. Courts
Following the rejection of the work “A Recent Entrance to Paradise” by the USCO, Mr. Thaler contested this decision before a District Court in Columbia, arguing that the USCO’s decision was “arbitrary,” “beyond jurisdiction,” and “contrary to law.” Unsurprisingly, in early August 2023, the District Court in Columbia also dismissed Mr. Thaler’s motion.
However, what is noteworthy is that the court acknowledged that throughout history, Copyright Law has been adaptable to technological changes and thus concluded that “Copyright Law is designed to adapt to the times.” However, Copyright Law has never “gone so far” as to recognize the authorship rights of technology without human intervention. Human creativity remains the fundamental cornerstone of Copyright Law.
In general, the prevailing trend at present is to reject the recognition of AI as an inventor of patents, or to deny recognition of AI’s creations as copyright-protected works. However, there do exist “exceptions” to this general trend.
It is evident that we are entering a new phase in human society and Copyright Law. Artists are becoming increasingly accustomed to using AI in their creative work, and naturally, this will lead to a reduction in the degree of human creativity in AI-assisted works.
Therefore, the District Court in Columbia also posited that this raises legal challenges, and legal practitioners need to promptly address the question as to what extent human intervention is required to recognize users of AI as the authors of protected works, as well as the scope of protection and the methodology for assessing the creativity of a work.
Another equally significant consideration is how to formulate Copyright Laws that effectively promote technological innovation and encourage creativity, whether it be AI-generated or otherwise.
Read the original article in Vietnamese at The Saigon Times.