Change ahead? UKIPO publishes outcome of AI consultation and considers legislative reform

In September 2020 we reported that the UK Intellectual Property Office (‘UKIPO’) had launched a call for views on the relationship between artificial intelligence (‘AI’) and intellectual property rights.

The outcome of that consultation has now been published. We summarise the key takeaways below.

Key findings

The majority of respondents agreed that:

• the law in relation to patents and copyright is intended to protect and incentivise human inventiveness and creativity, and may need to be reformed to accommodate AI (see below);
• the law on trade marks, designs and trade secrets is currently adequate to respond to the challenges of AI; and
• AI systems should not own intellectual property rights - but there were different opinions on whether works or inventions created by AI should be protected.
• In relation to patents:
  • The current conditions for inventorship may act as a barrier to innovation in the context of AI-generated inventions
  • More clarity, predictability, and international harmonisation is required in patent exclusion practice in relation to the patenting of AI inventions
• In relation to copyright:
  • Human creators should be “put first”, and works created solely by AI should either be not protected by copyright at all, or by a separate category of right with lesser durations and scope
  • Access to copyright-protected material is important for training AI systems, but respondents disagreed as to whether copyright restrictions make this difficult, or whether licensing is adequate and available to those who need it.

Actions

As a result of the consultation, the UKIPO now plans to:

• Consult later this year on a range of possible patent policy options, including legislative change, for protecting AI-generated inventions which would not otherwise meet inventorship criteria
• Publish enhanced IPO guidelines on patent exclusion practice for AI inventions
• Commission an economic study around the role of IP in incentivising investment in the AI sector
• Undertake a feasibility study of a “deposit” system to file AI training data disclosed within patent applications at the IPO
• Consult on whether to limit copyright protection to human creation and whether to replace the existing protection for computer-generated works with a related right for AI-generated works.
• Review the ways in which copyright owners licence their works for AI training purposes and consult on measures to make this easier.

Comment

One of the most interesting points to come out of this consultation is the plan for a further consultation on potential legislative reform to address the issue of patenting AI-generated inventions. This may effectively overrule the current UK position on AI inventorship set out in the High Court DABUS decision, and could, for example, provide a framework for attributing inventorship to AI systems, without granting AI systems any of the attendant rights which human inventors enjoy (importantly, the right to grant of a patent). In this way AI systems could be credited with their inventions, whilst the patents and associated rights could be owned by natural or legal persons.

Similarly, the plan to consult on carving-out AI-generated works from copyright is of great interest, particularly to those in the creative industries. Such a move would serve to recognise the value of human creativity, whilst reforming the provisions for computer-generated inventions (which, after all, were drafted decades ago), offers an exciting opportunity to create a new form of protection for AI-generated works, which would continue to incentivise innovation and investment in the field.