Recent Developments and Challenges in Protecting Intellectual Property Created with Artificial Intelligence | JD Supra

The use of artificial intelligence (AI) to create works of art and inventions raises interesting legal challenges for the protection of intellectual property (IP). The plain language of copyright law and patent law presents barriers for inventors and artists who may use or be AI systems. Recent actions by the US Copyright Office (USCO) and the United States Patent and Trademark Office (PTO) show that Congress will need to act to protect intellectual property that is not substantially created or designed by humans.

What do you want to know:

• AI is a computer technology capable of simulating human intelligence.
• In September 2022, USCO issued a registration for a graphic novel created with the help of AI.
• A month later, the USCO changed its position and informed the author that it could cancel the registration.
• This follows a recent Federal Circuit ruling upholding the denial of a patent application that named an AI system as the inventor.

AI is generally described as the use of computer technology to simulate human intelligence. For example, AI can make decisions based on data analysis and pattern recognition, learn from past experiences to optimize processes, and generate images from speech or text. This alert focuses on USCO’s recent position on the use of AI to create works of art and the implications for the protection of creative works generated, at least in part, by AI.

On September 15, 2022, the USCO apparently issued the first copyright registration for a work created with the help of AI, a graphic novel titled, Dawn Zarya. But just a month later, the USCO informed the author, Kristina Kashtanova, that she could cancel the registration if she could not demonstrate substantial human involvement in the creation of the graphic novel. USCO’s position begs the question: how much human involvement is sufficient for an author to receive copyright registration for a work in which AI played a role in its creation?

Unsurprisingly, the Copyright Act does not answer this question. While the Copyright Act provides that “original works of authorship” may be protected, the law does not define the term “author”. Notably, federal courts have ruled that an author must be a human being. Watch Naruto vs. Slater, 888 F.3d 418, 420 (9th Cir. 2018) (“we conclude that this ape – and all animals, since they are not human – do not have standing under the Law Act copyright”). In accordance with the naruto decision, in 2019, USCO denied the application filed by Dr. Stephen Thaler to register an artwork that “was autonomously created by a computer algorithm running on a machine,” called “A Recent Entry into Paradise. because it lacked “the human authorship necessary to support a copyright claim.” In 2022, USCO denied the second of two requests Dr. Thaler made to reconsider his claim. Thus, it is to be expected that the USCO does not register works created without any human intervention.

Also, it should be noted that the aforementioned Dr. Thaler filed two patent applications which were rejected by the PTO because they named an AI system called Device for the Autonomous Bootstrapping of Unified Sentience (DABUS ) as “the inventor”. Importantly, the Patent Act defines the term “inventor” as meaning “the person or, if it is a joint invention, the persons collectively who invented or discovered the subject matter of the invention”. 35 USC § 100(f). This summer, the Federal Circuit came out against Dr. Thaler and argued that inventors must be human beings. The Court of Appeals for the Federal Circuit based its decision on the plain language of the Patent Act and saw no need for “an abstract inquiry into the nature of the invention or the rights, the case appropriate, AI systems”. Thaler vs. Vidal43 F.4th 1207 (Fed. Cir. 2022). See also Diamond v. chakrabarty447 US 303, 309 (1980) (“abstract ideas”, laws of nature and physical phenomena are not patentable).

The affair of Dawn Zarya not only highlights the distinction between works of authorship that are entirely AI-generated and those in which AI has played some role, but creates the slippery slope by allowing USCO to decide the threshold of human involvement necessary to obtain copyright protection. The same issues can arise in the context of patents, even though the PTO and the Federal Circuit have already determined that an inventor must be a human. For example, would the PTO reject a patent application in which two of the three named inventors are humans and the other an AI system? One of the potential consequences of the PTO’s rejection of patent applications naming AI as inventors is that innovations created by AI are likely to remain trade secrets, since the “owner” of a trade secret may be a ” person or entity”. 18 USC § 1839(4).

There is no denying that AI is evolving rapidly and will find its way into more and more aspects of our lives in the years to come, especially when AI is used in the generation of art, music, films, software and other creative fields. The debate sparked by the USCO’s management of Dawn Zarya will no doubt require that laws relating to the protection of intellectual property involving the use of AI be revised in the coming years. Additionally, authors who use AI must be prepared to document and demonstrate to USCO their own involvement in the creative process, as well as how they have used AI to assist them in this process.