The Intellectual Property Office has issued a call for views on AI and IP as they seek to understand the implications AI might have for IP policy, as well as the impact IP might have for AI, in the near to medium term. The call for views sets out how the IPO believes the IP framework currently relates to AI. In addition, it raises a number of questions which the IPO believes are of central importance to the future of AI and IP policy.
There is no single agreed definition of artificial intelligence. The UK government has defined AI as: “technologies with the ability to perform tasks that would otherwise require human intelligence, such as visual perception, speech recognition, and language translation”. The call for views uses this definition and does not seek to consider the impact of concepts such as an AI superintelligence, or an AI as a legal entity.
AI technology is also important in the fight against counterfeiting and piracy. It is being considered in various areas to help support enforcement of IP rights. The call for views reviews the legal framework relating to the IP rights set out below and does not consider the use of AI tools to combat IP infringement. However, the IPO does recognise and support the use of such technology by IP rights holders.
Additionally, the IPO’s Corporate Plan 2019-2020 committed to a digital transformation programme. This aims to provide enhanced services for customers and improved tools for our people. Long term, the IPO anticipates that AI will play a part in the transformation programme. As AI technology develops, this will inform the IPO’s digital offering. However, this is outside scope for the call for views.
The call for views has five sections setting out the legal context and policy background, and covering patents, copyright and related rights, designs, trade marks and trade secrets. A sixth section provides a summary of questions asked across the IP rights.
Patents
The IPO asks what role the patent system can play in encouraging the development and use of AI. It also asks about the current level of human input in designing AI systems that can produce an inventive output, such as taking decisions on choice of algorithms, the selection of parameters and the design and choice of input as well as about the ownership of algorithms etc. The call for views also considers the exclusions from patent rights, disclosure of the invention, the inventive step test. Further, it considers proving, and liability for, infringement.
Copyright and related rights
The call for evidence looks at how the law treats the use, storage, creation, and infringement of copyright works by AI systems. It also considers the government’s policy objectives for AI and ask whether there are any opportunities to provide a better environment to develop and use AI. In particular, it considers three issues: the use of copyright works and data by AI systems; whether copyright exists in works created by AI, and who it belongs to; and copyright protection for AI software.
Designs
The main legal issues around AI and designs relate to authorship, ownership and infringement. The call for views sets out the way the law deals with these topics. It asks questions about whether the balance is right, and whether the law may need to change to take account of the increasing prevalence of AI in future.
Trade marks
The main consideration for AI and trade marks is infringement. The call sets out the way the law deals with this topic and asks questions about how the increasing prevalence of AI technology could have an impact on this. As an example, it considers if AI could affect the notion of an “average consumer” in measuring the likelihood of confusion.
Trade secrets
The IPO also seeks views on trade secrets providing protection not provided by formal intellectual property rights. Trade secrets may not be suitable for protection if the owner does not have the knowledge or resource to keep information confidential. This may be an issue for small businesses starting up in the AI sector. Moreover, trade secret protection does not give exclusive rights. Competitors are free to create independently the information protected as a trade secret. Exclusive rights may be a necessity for some AI businesses, for example if a key technology can be easily reverse engineered once made public. Trade secrets could be an option to protect AI developments that are excluded from patent rights. Trade secrets, unlike patents, keep the details of an invention out of the public domain. This may risk research efforts being duplicated and follow-on innovation limited. Some commentators have ethical concerns with the progress and operation of AI systems. They have questioned whether the use of trade secrets keeps a proper assessment of the ethics of AI systems from the public domain.
Views are sought by 30 November 2020.
