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28 June 2022PatentsMuireann Bolger

UK govt says ‘not yet’ to new AI rules

The UK government will not change patent inventorship criteria or copyright computer-generated works provisions following its consultation on artificial intelligence and IP, but it plans to amend a copyright law relating to data mining.

The  UK Intellectual Property Office outlined the response today, which proposed a copyright ‘exception’ provision for text and data mining.

Data mining is where software is used to analyse material for patterns, trends and other information. The government intends that anyone with lawful access to material protected by copyright should be able to carry out this analysis without further permission from the copyright owner.

From October 2021 to January 2022, the government consulted on issues relating to IP and AI following the government’s  Call for Views on AI and IP in 2020.

The consultation asked if the law takes the right approach to protecting inventions and creations made by AI, and whether steps should be taken to make it easier to use data mining techniques, including machine learning, with copyright material.

It also considered the extent to which inventions and creative works which are generated by AI should be protected by patents and copyright. While it declined to enact any changes in this regard, the government has said it will keep AI technical development under review to help ensure that UK inventorship rules continue to support AI innovation and will seek to advance discussions internationally to support the UK’s economic interests.

A profound impact

“There is no disputing the profound impact of AI and its potential to disrupt IP law,” explained Arun Hill, an analytics consultant at Clarivate.

“The UK government has been tasked with the issue of whether to make provision for AI in the patent and copyright systems; in essence, asking the question 'is it time?'

“Today's release of the Consultation Outcome on AI definitely answers 'no, not yet' with respect to computer-generated works and machine-derived inventions.” Hill noted, however, that a new 'genus' of "machine-derived" property rights was contemplated in the response.

“While this was not taken forward, it does provide a glimpse into a possible future of AI and IP, one that attempts to balance the need for adequate protection with democratising the benefits of digital technologies,” he predicted.

Matt Hervey, a partner at  Gowling WLG, agreed. “The UK government does not propose to change UK patent law to allow protection of AI-made inventions and noted, rightly, that the UK law already protects AI-assisted inventions."

Patents, trade secrets

The consultation’s public responses, Hervey said, suggested that an internationally harmonised approach to AI-made inventions is needed. “This is clearly right: there would be little point offering UK national patent protection for AI-made inventions, which would require disclosure of the invention, if the potential rights owners would need to keep the invention as a trade secret in the rest of the world.”

These discussions, he added, should be advanced in earnest. “Harmonisation will take years and AI-made inventions could become a reality through a sudden breakthrough.”

But in the meantime, he contended that UK law will continue to protect computer-generated works with copyright. “Unusually, the UK has protected such works for decades. Although the value of such works remains to be seen, maintaining copyright protection is consistent with promoting AI innovation,” he said.

Nicholas Fox, partner at Finnegan, noted that the response underscored the ongoing question mark around the inventorship of AI.

“Despite the claims of certain parties and for example, the court case relating to the DABUS system, there is no evidence of AI currently having the capacity to invent,” he argued.

“Similarly, although the output of AI systems such as the DALL-E computer system is impressive, there is no evidence that any such system has any inherent creativity. So, it is entirely appropriate to protect computer-generated works in a similar manner to other works created by a machine much as the law protects the work of photographers creating images using a camera.”

Marks & Clerk partner Mike Williams, who authored the firm’s  AI Report: 2022, viewed the decision not to change but to continually review the UK’s patent inventorship criteria as “pragmatic”.

“Many respondents indicated that current AI is not yet advanced enough to invent without human intervention as there is currently always substantial human involvement before any invention can be identified,” he said.

“The continued impressive growth in patent filings for AI inventions shows that innovation is not being held back by the inability to name an ‘AI’ as inventor and that changes to the law are not yet necessary.”

A lost opportunity

But David Brinck, partner at  EIP, criticised the response as failing to address the pressing question of UK patent inventorship criteria.

“With regard to the lack of amendment to UK patent inventorship, it is disappointing that the government has decided to ‘kick the can down the road’ as the need for clarity in how to handle non-human contributions to inventorship will only become more and more pressing,” said Brinck.

Mewburn Ellis partner Richard Johnson also felt that the response may be seen as a “a lost opportunity”.

“In relation to patent law, the response maintains the status quo, he said. “However, the commitment to active engagement in working towards international consensus is very positive to see.”

It would be undesirable, he added, for the IP landscape to be fragmented on this issue. “The government response is in line with many of the court decisions in this area, in that it recognises the potential for change in future, but avoids any immediate action.”

Post-Brexit data advantage?

Despite some misgivings over the AI patenting issues that remain, lawyers have broadly welcomed the proposed revisions to copyright law.

According to the response, the copyright exception provision will make it easier to analyse material for the purposes of machine learning, research and innovation. Gowling WLG's Hervey also enthused about the “strongly pro-innovation position on text and data mining”.

The government has said that the data mining provision will take advantage of the UK’s ability to set its own copyright laws now that the country has left the EU, putting the UK’s copyright framework among the most “AI and research friendly” in the world.

“The government proposes an exception to copyright that is significantly wider than that which is offered by the EU, allowing commercial text and data mining for any purpose and not providing for an opt-out for rights holders,” said Hervey.

“The expansion of the exception to copyright to allow data mining for commercial purposes will bring welcome clarity for AI businesses operating in the UK,” chimed Marks & Clerk's Williams.

“Our recent research has shown that while there is impressive AI research happening in the UK, AI patent filings from UK business have not kept pace with those from their global competitors. This announcement from the government should encourage even more innovation in the UK and reverse this trend.”

The response emphasised that rights owners will still be able to control and charge for access to their works and will be able to control their wider use, with the only change being that they will no longer be able to charge extra specifically for the ability to mine them.

The public good or more restrictions?

This revision will promote the use of AI technology and wider “data mining” techniques, for the public good, according to the government. Among other uses, data mining can be used when training AI systems. For example, machine-learning software which has been trained on large repositories of computer code is able to intelligently suggest new code to programmers.

“The eye-catching part of this response is the planned new exceptions to copyright infringement for text and data mining purposes,” agreed Johnson, who went on to take a more cautious outlook.

“On the one hand this decision can be seen as an enabler for AI development, but on the other it may have the effect of encouraging copyright holders to place more restrictions on their content so that they benefit from the ‘lawful access’ safeguard.”

Commenting on the response, science and innovation Minister George Freeman said: “Now that the UK has the ability to set our own copyright laws for the first time in decades, we want to ensure the UK continues to have one of the best IP frameworks in the world. IP is key to innovation.

“That’s why, following our consultation earlier this year, we intend to bring the law up to date, embracing the challenges and opportunities presented by rapid developments in technology. The UK will continue to engage with partners around the world, seeking to lead global conversations as we unleash our potential as an innovation nation.

“Our new UK rules on copyright and data mining will act as a catalyst for our innovators to flourish, helping ensure the UK’s IP system remains a powerful enabler for groundbreaking research and development.”

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