Artificial intelligence and intellectual property: UK Government responds to UK IPO consultation | Hogan Lovells | #itsecurity | #infosec


In September 2020 the UK Intellectual Property Office (“UK IPO”) launched its first consultation on artificial intelligence (“AI”) and intellectual property (“IP”), which requested views on current requirements in IP concerning authorship and inventorship. Following the conclusion of this consultation at the end of 2020, the UK IPO launched a second consultation in October 2021, asking more broadly whether IP rights should be afforded in scenarios where AI has been used as part of the creativity or inventorship process. In relation to copyright, the questions asked concerned whether computer generated works (“CGW”) should continue to be protected and, if so, how and whether an exception to copyright infringement should be made to permit Text and Data Mining (TDM). Finally, in the context of patents, the questions concerned whether the rules on inventorship ought to be expanded to include AI.

The Government has published its response, making the following determinations:

  • No changes in copyright law are planned for protection of CGW. Copyright protection for CGW will continue to be obtainable. The Government’s reasoning was that, as the use of AI is still in its early stages, there is no evidence, at present, that protection for CGW is harmful. It was therefore not possible to conduct a proper evaluation of the consequences of any change in the law and instead the current system will be kept under review (with the potential to amend, replace or remove protection in the future, if there is evidence to support such a change).
  • Changes are planned for TDM. The Government has stated that it intends to introduce a new (broader) copyright and database exception to allow TDM for any purpose. However, rights holders will still be afforded safeguards to protect their content (such as a requirement for lawful access).
  • No changes to UK patent law are planned. The requirements for inventorship will remain the same. In other words, it will continue to be necessary to identify a human inventor in order to apply for a patent. According to the Government’s response, the majority of respondents to the consultation considered that AI technology is not sufficiently advanced to enable invention without human intervention. As such, it should generally be possible to identify a human inventor and there is therefore no need to change the law. Again the Government will continue to keep this area of law under review to ensure UK patent law supports innovation in the field of AI technology. Further, international AI inventorship discussions will be sought by the Government.
Copyright

The UK currently provides copyright protection for CGW without a human author, which lasts for 50 years. The consultation asked whether these works should continue to be protected and, if so, how. Related issues such as risks of false attribution and the impact of similar provisions in designs law were also considered.

Of the 61 written responses received, the majority favoured no change to the law, with many stating that there is little evidence that the protection of CGW has any significant impact at present, given such protection did not seem to be widely used. Conversely, the long-term impacts of removing the protection were thought to be unclear and leaving the law unchanged offered stability. The majority did, however, acknowledge that, as AI develops, this issue may need to be reconsidered.

As a result, the Government has decided to make no changes to the existing protection for CGW. In particular, the Government has observed that using AI to generate creative content is still in its infancy, and it is at this stage unclear whether the removal of protection for CGW would promote or discourage innovation. Nonetheless, the Government has explicitly reserved its position as to whether changes to the protection of CGW may be made in the future.

Text and Data Mining

TDM is the use of computational techniques to analyse large quantities of information to identify patterns, trends and other pieces of useful information. In its response, the Government recognised the benefits of TDM in the development and training of AI systems, along with the use of TDM in research, journalism, marketing, business analytics and cultural heritage organisations. In 2014, an exception to copyright for TDM was introduced, however this was limited to non-commercial research, in accordance with EU rules in place at the time.

The consultation sought views on whether the existing UK TDM exception ought to be extended, or whether the licensing environment for TDM ought to be improved, to make it easier for people to data mine copyright materials.

Views were mixed across the 65 responses received. Rights holders favoured no change or licensing solutions to assist with access to material for TDM, with many stating there was no evidence of a problem at present and thus licensing should continue to be controlled by rights holders. In contrast, and unsurprisingly, users of copyright and database material favoured a wider exception, highlighting the difficulties in obtaining licences and the associated costs.

According to the response, the Government has decided the option most supportive of AI and wider innovation is the introduction of a broader copyright and database exception, allowing TDM for any purpose. As such, the Government’s stated intention is to introduce this new copyright and database right exception. According to its response, the Government will be identifying suitable legislation to make the required changes in due course. A hope of the Government is that such a change will make the most of the “greater flexibilities” following Brexit and will make the UK more competitive as a location for firms carrying out TDM.

Rights holders would not be able to charge for licensing in the UK for TDM and would not be able to contract or opt-out of the new exception. The new provision may also affect those who have built a business around data licensing. However, rights holders would still have safeguards to protect their content, as there will be a requirement for “lawful access”. Rights holders can elect upon which platform they make their works available, including charging for access via subscription or single charge, plus they would be able to take measures to ensure the integrity and security of such systems. It is unclear how control of access will sit aside the exception to copyright and database rights, with no licence required (and no licence fee payable).

Patents

For patents, the use of AI has become more widespread, with use cases demonstrating AI technology can be an effective tool in generating creative works and/or inventions. Although the UK IPO has stated that it wishes to preserve the central role of IP in promoting human creativity and innovation, the consultation sought views on patents and AI inventorship and whether legal change would be preferable to better acknowledge use of AI as part of the innovative process.

The Government received 48 written responses, with the additional views expressed in roundtables in line with these responses. The majority ultimately preferred no change in the UK law for now, given the lack of preferences for any options according to industry sector, business size or business model. Many also stated that inventions developed using AI are protected enough by the current law, and, separately, that any future change should be harmonised at an international level.

Consequently, the Government has opted to make no change to UK patent law at this stage. However, the Government expressed it did not want to risk creating barriers to innovation and investment in AI technology. It therefore intends to take the following actions:

  • Advance AI inventorship harmonisation discussions in international fora.
  • Develop a clear picture of what the UK should seek in such discussions. This would be achieved by understanding the existing and potential strengths of the UK economy and by actively monitoring technological developments in AI.
  • Seek to address any perceptions that the current law prevents patenting of AI-assisted inventions.
Comment

The enlarged exception created for TDM is a bold change, as it will impact rights’ holders significantly (especially in the field of scientific publications, medical and clinical data for biomedical discovery and computational linguistics, but also in many other fields where big data analysis is driving change).

With its TDM exception, the Government has demonstrated a willingness to support the development of AI. The response acknowledges that TDM can be a vital tool for training AI. This broad exception to copyright and database rights is intended to facilitate that. It remains to be seen however how the suggested safeguards around lawful access would work in practice.

It is also relevant to note that this proposed exception would be broader than the exception adopted by the EU under Article 4 of the DSM Directive (outside of scientific research), though still yet to be implemented by some Member States, where rightsholders would be able to opt out, by reserving their rights expressly. This changes the previously level playing-field across Europe, which may lead to uncertainty and complex jurisdictional questions of where work is being carried out and subject to which local legal system.

On the other hand, no further changes are proposed in the UK for CGW or patents. The UK Government has, from the outset of its consultations, signalled that fostering innovation in AI is central to its plans for the future. Where, then, does this response leave those ambitions?

Many will be unsurprised to see that no changes are proposed for copyright for CGW or for patent law. The prevailing view from respondents (and echoed by the Government) seems to be that current laws can accommodate the status quo so far as the development of AI is concerned. For patents, there is also a concern that rules on inventorship and AI need to be harmonised internationally. Perhaps most interesting was the comment (carried under its own sub-heading, “Other patent issues“) which said that the UK Government was “concerned that the recent publicity about naming an AI system as an inventor risks the incorrect conclusion that UK patent law does not protect AI-assisted inventions.” It is not improbable that this is a reference to the discussion that circled the ‘DABUS litigation’. In a case that went to the Court of Appeal last year, Dr Thaler, the creator of an AI machine “DABUS” sought to appeal the rejection of a patent application which attempted to name DABUS as the inventor. (For further information on this, see our summary in the column on the right). The Government’s comment in its response is a timely reminder that present laws are there to facilitate innovation, even where AI is used as part of the innovative process.

Underpinning the overall response is a stated intention to put fostering innovation (particularly in AI) at the heart of its vision for the UK’s future. Formulations of this ambition are repeated throughout the response. Many will be hoping, therefore, that whilst this consultation has closed, this is not the end of the conversation. AI will continue to develop and there are differing views on the rate of change that we can expect. It is critical that discussions continue to be had as to the multi-faceted ways that it will test our legal regimes and impact society.



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