AI: credit where it’s due

Artificial intelligence can imitate human intelligence and behaviours as well as mental processes such as learning, analysing and solution-finding.

AI is fed by data, and the exponential growth of the volume of worldwide data has led to the marked advancement of AI models.

An AI can now access, and work, within disciplines that many previously thought would always require human cognitive skills to handle, eg, healthcare and finance.

Therefore, the technological advances in AI have revolutionised various industries and promise even more exciting developments to come.

Legal challenges

However, as AI models continue to improve and advance, we must accept the idea that there are no longer only human minds—but also artificial ones—which create challenges in the legal field.

When it comes to IP law, which protects and enforces rights over the creations of the mind, one major concern relates to the ownership of a creation made by AI.

"IP law must safeguard the interests of the user who requests a work created by AI, so long as their contribution was significant for the particularities of the respective work."

IP rights legally protect the creations of the mind. But what if the creative mind was an artificial one? Should ownership be attributed to a human (its user), even if the user’s intervention was insignificant?

If so, is this attribution against the nature of the IP rights, as the work was not a result of the user’s cognitive skills—which means that this human was not the mind behind the work?

For example, humans have designed chatbots which were initially software programmes with learning algorithms to simulate having conversations with people by providing automatic responses.

But nowadays some chatbots, such as ChatGPT, are programmed to be capable of converting a user’s idea or its request into a literary work, a melody, a software application or another creative work. Then to whom or what should that creation be credited?

Who is the owner?

The ownership of AI creations seems to depend on how the user contributes to the creative process of the work , and how independently the AI system operated in the creation of each work.

However, it is important to consider that AI creations could involve other contributors—besides the user and the AI system. These include data providers and algorithm developers, as artificial minds can generate works based on algorithms allowing them to process and relate information and generate the works required by a user. There is a concern about whether these contributors could be owners of an AI work as well.

But we must take into consideration that the algorithm developers are just the owners of the computer code or program that is protected by law as an independent work, and that the work created with the AI system is a solution resulting from an imitation of a human cognition process which combines and transforms the data provided. So, there is no reason to attribute ownership to the algorithm developers or to the data providers.

AI is a tool

On the other hand, AI must be seen as a tool. Even when we could obtain creations resulting from a simulated cognitive process of an artificial mind, the truth is that this kind of mind was created by humans— as a tool for its users.

Consequently, IP law must safeguard the interests of the user who requests a work created by AI, so long as their contribution was significant for the particularities of the respective work. If their intellectual skills are embodied in the work, their ownership must be protected since the work could be considered as a creation of their mind.

The advancement of AI and its dynamic interplay with IP requires a balance between promoting innovation and protecting IP rights.

Only this approach will ensure that society is capable of taking advantage of the rich potential of AI while safeguarding the principles of IP— and achieve a digital future.

Carla Santa Maria is an attorney-at-law at BC&B. She can be contacted at csantamaria@bcb.com.mx