UK govt mulls legislative changes to safeguard AI inventions
The UK government will consult on the possibility of introducing legal changes for protecting AI-generated inventions which do not meet inventorship criteria, it confirmed following a call for views on AI and IP.
The response, published yesterday, March 23, followed a consultation on AI and IP which was carried out by the UK Intellectual Property Office (IPO) between September and November 2020.
Amanda Solloway, minister for science, research and innovation, confirmed the consultation plans will form part of a new national AI strategy during a launch speech at an inaugural AI UK event, held over March 23-24.
“In response to this call for views, we will be consulting on how best to protect AI-generated inventions and creations, and how to ensure AI has wide access to creative works. The IPO will also conduct an economic study on the role the IP framework plays in incentivising investment in AI and will be working with academics and researchers to deliver a programme of seminars on AI, IP and innovation,” said Solloway.
‘AI itself should not own IP rights’
According to the IPO, the 2020 consultation revealed a consensus among respondents that AI itself should not own IP rights, but also different opinions on whether works or inventions created by AI should be protected.
“In relation to patents, many respondents felt that current conditions to establish the inventor may act as a barrier to innovation as the use of AI systems increases. Some argued that inventorship criteria may impact patent availability, with less incentive to invest in AI research and less transparency in the innovation process,” the response said.
There was general agreement among respondents that patents have an important role to protect and support AI innovation, but mixed views about the extent that patents should be available and their impact on follow-on innovation.
Many respondents emphasised the need for more clarity and predictability in IPO patent exclusion practice in relation to AI software, along with a call for more international harmonisation in the area.
Several noted that there may be challenges if AI patent applications are to satisfy the requirement for disclosure of an invention. “Some are seeking new facilities so they can file large amounts of information in support of their patent applications. Not all respondents agreed that this is necessary,” noted the response.
Copyright
In relation to copyright, many respondents to the consultation stressed the importance of putting human creators first. Some argued that works created solely by AI should not be protected by copyright at all, while others held that they should, but as a separate category of right, with lesser duration and scope.
Many recognised the importance of copyright-protected material in training AI systems. Some argued that copyright restrictions made this difficult, and potentially led to bias. Others argued that licensing was adequate and available to those who needed it.
The call for views also highlighted the difficulty of identifying which works had been used to train an AI, and of determining whether works had been authored by a human or machine, said the IPO.
In response, the government has committed to reviewing the ways in which copyright owners license their works for use with AI, and consult on measures to make this easier, including improved licensing or copyright exceptions, to support innovation and research.
This includes a consultation on whether to limit copyright in original works to human creations (including AI-assisted creations). In tandem with this, the government will consult on whether or not to replace the existing protection for computer-generated works with a related right, with scope and duration reflecting investment in such works. It will also consider whether action should be taken to reduce confusion between human and AI works, and the risk of false-attribution.
Trademarks, designs, trade secrets
In relation to trademarks, designs and trade secrets, respondents generally felt that the law was adequate and flexible enough to respond to the challenges of AI. But they flagged that could potentially lead to challenges in the future, and which should be kept under review.
These included links between patents and trade secrets in relation to disclosure of inventions, and between copyright and designs in relation to computer-generated works and designs.
Commenting on the government’s response, Matt Hervey, partner and head of AI at Gowling WLG, said: “The summary of responses rings true as a reflection of the range of opinions in the field and of key considerations, especially inventions by AI, patent eligibility and sufficiency.”
The proposed suggestion of consulting on the UK's long-standing approach to protecting computer-generated copyright works was unexpected, he noted.
“However, we have been ahead of almost all other countries in recognising computer-generated works and I can see that this is a good time to reflect on the social and economic ramifications of the policy now that machine learning has the growing potential to displace human journalists, musicians, artists and more," explained Hervey.
He added: “This is a very measured initial response to an extensive consultation addressing issues of considerable economic and social importance. Guiding the use of AI so that it supports innovation and economic growth without damaging human autonomy, creativity and dignity will require ongoing review drawing on multiple perspectives, including the law, economics and social policy.”
The responses highlighted fundamental questions regarding the purpose of IP protection, especially in the context of patents and copyright, noted Toby Bond, senior associate at Bird & Bird. “Should IP law solely reward human minds which perform innovative or creative acts? Or should it focus on rewarding the end result and grant rights to inventions or works where there was no human mind “in the loop”? As the responses demonstrate, there are no easy answers to these questions,” he said.
He added that the most pressing IP issue for the use and development of AI in the UK is ensuring that IP policy facilities access to training data for use in developing AI systems. “By declining to adopt the Digital Copyright Directive, UK law is going to diverge from the EU when it comes to text and data mining exceptions. It is therefore encouraging to see that the UKIPO plans to consult on measures to make it easier for copyright owners to license their works for use with AI, and to consult on measures to make this easier, including improved licensing or copyright exceptions,” said Bond.
More consultation in 2021
Building on suggestions made by respondents, the government will consult later this year on possible policy options, including legislative change, for protecting AI-generated inventions which would otherwise not meet inventorship criteria.
It has also pledged to publish enhanced IPO guidelines on patent exclusion practice for AI inventions and engage AI interested sectors, including SMEs, and the patent profession to enhance understanding of UK patent exclusion practice and AI inventions.
The IPO will review its patent practice in preparation for the guidelines and establish any difference in outcome for AI patent applications filed at the IPO and the European Patent Office.
Additionally, the government will commission an economic study to enhance its understanding of the role the IP framework plays in incentivising investment in AI alongside other factors to draw together the international evidence as well as engaging with other government departments to gather emerging data and understanding of the drivers of the AI sector in the UK.
It will also work with stakeholders and international partners to establish the feasibility, costs and benefits of a deposit system for data used to train AI systems disclosed within patent applications.
To find out more, visit: https://www.gov.uk/government/news/government-response-ai-and-ip-call-for-views
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