March 15, 2023

AI and IP: Emerging Novel Legal Questions

AI and IP: Emerging Novel Legal Questions

Artificial intelligence has advanced to a place where it can write a paper, win a chess game, and even pass the bar exam. The role AI will play in education, business, and our everyday lives is still an open question. However, one arena that has already produced litigation is the relationship between AI and intellectual property.

Novel Legal Questions

The IP laws and rules on the books today did not contemplate a world where machines would be the sole creator of works. While there will certainly be more questions to answer in the future, two initial novel legal questions are emerging around AI generated art and AI systems as patent inventors.

Does AI Generated Art Violate Copyright?

AI art generators can create just about any work of art in seconds. Some have claimed that generators use copyrighted images to train models without compensating the artist. In fact, a group of artists have filed a class action lawsuit against three art generators over this exact practice. 

The suit claims that the AI companies are committing copyright infringement and that the images generated are derivative of the works the system was trained on. Attorneys for the defendants claim that the use of these images are “fair use” -  a legal doctrine that allows the use of copyrighted works in ways that are considered “fair,” such as news, teaching, and research. 

Additionally, the technical details of how the AI systems actually learn may undermine the plaintiffs’ arguments. The defendants and industry experts have explained that During the training process, the system views images to learn how styles appear without ever copying or storing the images it has seen. Technology publications have even claimed that the lawsuit potentially “misrepresents” how the AI technology works.

How Much Human Involvement in Invention Must There Be to Secure a Patent?

Today, many inventions that are granted patents were not invented solely by a person. Inventors are increasingly using computers and now AI systems to aid in the development of new ideas. 

To date, governments have been unwilling to grant patents when an AI system was the sole inventor. In the United States, much of the litigation around this question has been led by computer scientist Stephen Thaler. Thaler has tried to copyright and patent various outputs of AI systems he has created. The US Copyright Office and the US Patent Office ruled that his system was not a “natural person” and thus could not secure a patent or copyright its work. The decision was upheld in numerous courts including the United States Court of Appeals for the Federal Circuit

So if an AI system cannot be the sole inventor, exactly how much does a human need to contribute for a valid patent or copyright? That question has yet to be answered.

How IP Litigation Could Impact the AI Industry

Despite the strides that have been made in training AI systems, many experts believe that the technology is still in its early stages. Today, some AI systems rely heavily on protected works to learn. Without the benefit of fair use, it would likely be economically unviable to train the systems as companies do today. 

Similarly, if courts or legislators decide that patent applicants must prove a high level of human involvement in invention, it could fundamentally shift the use of AI and computer systems in modern invention.

Trust the IP Attorneys at PN Lawyers

The Intellectual Property Group at PN Lawyers has decades of experience across a broad array of legal services including patents, trademarks, copyright, trade secret protection, licensing agreements, and IP litigation. Whether you are a technology business looking for IP compliance help, or an entrepreneur looking to protect your invention, we can help. To get in touch with a trademark or patent attorney today, call 212-213-8511.

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