The UK Intellectual Property Office has launched a consultation on policy options for artificial intelligence and intellectual property, with a focus on copyright and patent protection.  This follows on from last year’s call for views on the implications of AI on the current IP framework, where concerns were raised about the balance between protecting human works and AI works. The consultation also contributes to the government’s National AI Strategy, which sets out the plan to solidify the UK as an ‘AI superpower’ (for more on the National AI Strategy see here).

AI is playing an increasing role in innovation and creativity, and undeniably the IP framework will need to keep up.  For example, as set out below, currently an AI machine cannot be listed as an inventor on a patent application. As recently as September 2021, the Court of Appeal upheld this in the case of Thaler v Comptroller General of Patents Trade Marks and Designs (see here for more on this case). The aim of the consultation is to ensure that the UK IP system incentivises AI development and innovation, but while continuing to promote human creativity.

The IPO is consulting on the following core areas:

1. Copyright protection for computer-generated works without a human author,
2. Licensing or exceptions to copyright for text and data mining, and
3. Patent protection for AI-devised inventions.

The consultation sets out proposed policy options, which are summarised below. For more details on the policy options, see here.

Copyright for computer-generated works 

The current system protects works that are generated by a computer for 50 years from the date the work is created. This protection has been criticised by some for ‘over-rewarding’ computers, whereas others believe it provides incentives for investment in AI technology. Proposed policy options include removing the current system or replacing it with a new right that has a reduced scope and duration.

Text and data mining 

Text and data mining involves the analysis of large amounts of information to identify patterns and trends. This involves the copying of the information being analysed, which may be protected by copyright. Currently a licence or reliance on an exception is required to copy the works for this purpose. The exception permits the making of copies for text and data mining provided (1) it is for non-commercial research, and (2) the researchers have lawful access to the material. This is of little assistance when undertaking commercial research, and the exception does not apply to the copying of databases. The policy options include improving the licensing environment (perhaps by providing model licences) or extending the exception to cover wider uses (such as commercial research).

Patents 

Under current patent law, the human who uses AI to devise an invention should be listed as the inventor, not the machine (much to Dr Thaler’s disappointment). The first policy option involves expanding “inventor” to include the human who is responsible for an AI system which devises inventions. However, the human would still be the inventor under this policy, so the IPO also proposes amending legislation so that the AI machine can be listed as an inventor. The final policy option involves protecting AI-devised inventions through a new type of protection, which would be for a shorter term with more limited exclusive rights.

The consultation ends on 7 January 2022. Once the responses are published, it is likely to be a while before any changes are made, but it will be interesting to see the direction of travel, and whether AI-related innovations will be capable of receiving greater protection.