Who Owns the IP Created by AI?

Until quite recently, Artificial Intelligence (AI) was a concept reserved only for science-fiction novels. Now, however, AI deeply affects how we live our everyday lives. AI technologies are developing at a rapid pace. In the past few decades, we have moved from computers you could challenge to a game of chess to self-driving vehicles. AI can do anything from curating personalised shopping suggestions to analysing the likelihood of a bank transaction being fraudulent. Although AI offers many benefits, there is growing uncertainty around how intellectual property (IP) laws affect emerging AI-generated materials, such as:

• music; and
• artwork.

It is still unclear how authorities should determine the owner of intellectual property created by AI. Of course, this will only become more complex as AI develops even further. This article will outline:

• the current legal status of AI-generated creative content; and
• how new laws could evolve to address these questions. 

What is Artificial Intelligence?

AI is a field within computer science.  AI technologies exhibit certain traits that we typically associate with human intelligence, such as:

•  reasoning;
• learning; and
• problem-solving.

Machine learning is one of the most popular applications of AI. Machine learning refers to automatic learning and improvement. This creates autonomous AI systems that can then learn without humans programming them in certain ways. Machine learning programs access a bank of data, similar to how the human mind works, and use this data to learn. 

What Are the Creative Applications of AI?

AI has begun to contribute to the creative process in a range of ways. AI in the creative industries can: 

• assist with designs;
• provide suggestions for written output; and 
• contribute to artistic output. 

AI is now also rapidly moving towards machines being able to learn and think without human input. Tech companies such as Google, Tesla, Jumio and even Mastercard are creating machines that teach other machines, further removing the human element from the creation of works by AI.

At this point, the law becomes unclear. When AI creates works without any direct human input, the legal ownership of the intellectual property becomes very complicated.

What is the Legal Stance on AI?

Worldwide, the legal stance on ownership of AI-created works is not yet clear.

In 2017, the European parliament recommended creating an additional legal entity, an  ‘electronic personality’, which would allow AI to hold rights. However, the parliament abandoned the idea following criticism from both the legal and technology industries. Opponents raised legal, ethical and technical arguments against the proposal, such as whether the recommendation could grant human rights to robots.

The United States Copyright Office has adopted a ‘human authorship’ requirement.  This means that only material created by humans can receive copyright protection. In the United Kingdom, New Zealand and Singapore, authorities have suggested that the creators of AI programs should receive copyright.

However, developments in machine learning mean that the creator of programs to create work is becoming increasingly difficult to define. There is no certainty as to whether IP rights will be attributed to AI program creators.

Similarly, the legal landscape in Australia is still relatively ambiguous. Copyright laws in Australia do not make any specific claims as to the ownership of computer-generated content. 

The World Intellectual Property Organisation (WIPO) has suggested that there are two legal options for countries to manage the IP ownership of works created solely by AI. WIPO suggests either:

1. complete denial of any intellectual property protection for any AI-created works; or
2. accrediting intellectual property rights to the ‘human’ creator of the program.

AI and IP Ownership

It is clear from the ambiguous legal positions around the world that there is no ‘one size fits all’ approach to determining IP ownership. AI lacks certain human features, such as the intent to create works. Whether intent is a necessary feature to attribute ownership remains unclear. Of course, machine learning and other AI programs may eventually exhibit the required intent.

Many commentators have also proposed that AI-created works should be deemed free of copyright and IP rights because there is no human creator.  However, pursuing this policy could mean that AI businesses would be less inclined to continue building innovative technology, as they would be unable to profit from the final output. Automatic revocation of IP rights where AI is the creator of works is likely to hinder innovation.

Alternatively, other commentators have suggested that authorities should attribute the IP to the humans who hold patents for that machine or software.  However, this suggestion fails to consider instances where there are no patentable rights. Another suggestion is to attribute IP rights to the original creators of the programs creating original works. This would not consider whether the creator of the AI or the AI program could otherwise hold the IP rights. However, this solution could become unworkable as AI develops the ability to create programs or set parameters itself.

Additional Considerations

There is significant commentary surrounding works created by AI. This space will likely continue to evolve over the next decade. 

Importantly, if copyright is not attributable to creative materials produced by AI, investment in the technology could falter. Clearly, there is little incentive to create new AI programs if creators cannot protect their output. If AI programs are unable to own the IP they create, then all created works will be in the public domain and may not be entitled to protection.  Of course, AI technology can reduce the human expenditure of time and therefore reduce costs. Therefore, the costs of innovation and human labour will need to be weighed against each other.

Commentary from the USA has suggested that AI can only ever be classed as a collaboration between humans and machines, as AI could not exist without humans. If AI ultimately receives the right to hold intellectual property rights, further questions arise in relation to the legal personality attached to AI.

When or if AI attracts the same rights, the legal landscape will be vastly different. 

Key Takeaways

At present, AI does not hold sufficient legal personality to own any property, let alone intellectual property.  However, the rapid development of machine learning and machine-led teaching is changing the landscape of traditional intellectual property ownership.

This article has discussed: 

• what AI is;
• whether AI can own intellectual property; and
• who owns the copyright in new works created by AI.  

These questions are only related to redefining IP ownership. They also consider how the law classifies AI and what rights AI might someday have. 

Anyone who uses AI should understand what the implications could be if artificially intelligent programs receive IP rights over the content they create. If you have any questions on how best to use AI or other legal technologies within your team, our experienced artificial intelligence lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.