04/07/2022
The UK Intellectual Property Office (UKIPO) has just (28 June 2022) published the results of a consultation with stakeholders on how Artificial Intelligence (AI) should be dealt with in the patent and copyright systems. This is the second UKIPO consultation on AI and IP in recent years. It focusses on issues surrounding inventorship, ownership and authorship for AI inventions and creations, and specifically whether or how IP law might need to change to adapt to the challenges posed by AI.
Potential Changes to IP Law in the UK
The recent consultation considered three potential changes to IP law in the UK and sought stakeholder views on these potential changes. The consultation asked:
1) Does copyright law need to change to remove copyright protection for computer-generated works (CGWs) without a human author?
No. The UK Government did not find sufficient reason to justify altering UK copyright law at this stage. The Government reasoned that the use of AI is still in the early stages, and there is no evidence to suggest that allowing copyright protection for CGWs is in any way harmful. However, this position will be kept under review and this issue could be revisited in the future if new evidence comes to light.
2) Should licensing or exceptions to copyright for text and data mining (TDM) be introduced?
Yes. A copyright exception for TDM will be introduced. The UK Government plans to introduce a broad copyright exception for any purpose, while ensuring that rights holders still have safeguards to protect their content, including a requirement for lawful access. The UK Government notes that several other jurisdictions, including the EU, Japan and Singapore, have already introduced copyright exceptions for TDM.
3) Does patent law need to change to allow patent protection for AI-devised inventions with no human inventor?
No. The consensus of the consultation was that AI technology is not yet sophisticated enough to be able to “invent” without human instruction. This position will also be kept under review and future changes could be warranted if depending on developments in AI technology.
Copyright Exception for TDM
The most significant result of the UKIPO’s consultation is the introduction of an exception to copyright and database right protection for commercial text and data mining.
Text and data mining is the automated process of selecting and analysing large amounts of text and data resources. The technique is frequently used to source large datasets for training AI models. Difficulties arise when the text and data is embedded within copyright-protected works. Although the factual data, trends, and concepts themselves cannot be protected by copyright, the TDM algorithm copies the entire protected work to process and extract the data. The copying of the entire protected work would infringe copyright unless permitted under license or by an exception.
The UK already provides some copyright exceptions for TDM for non-commercial research purposes. Other jurisdictions such as the EU, Japan, and Singapore have already introduced more expansive exceptions to provide exemptions for commercial TDM.
The consultation proposed five possible options, ranging from the most conservative “Option 0 – Make no change” to the most expansive “Option 4 – Introduce an exemption for any purpose, with no rights holder opt-out”.
Following responses on this question from rights holders, researchers, lawyers and trade organisations, the Government has decided to introduce the broadest exemption: a copyright and database right exemption for TDM for any purpose with no opt-out available to rights holders (i.e. option 4). The Government stated that it wishes to lead the way in becoming the most attractive location for AI innovation and development, and the proposed exemption is a broader exemption than that currently provided by the EU under the Digital Copyright Directive.
The proposed exception requires that beneficiary to have lawful access to the data obtained via TDM. Rights holders who want to prevent their copyright works from being obtained by TDM would have to restrict access to the data in other ways, such as via new security measures.
Copyright Protection for CGWs
The UKIPO considered it premature to make a change to copyright law to disallow protection for CGWs, as there is no evidence as yet to suggest that allowing such protection is damaging.
One of the arguments for removing the current 50-year copyright protection is that AI systems are capable of generating huge numbers of works and that protecting these works could crowd out human creators. But the UKIPO found that there is no evidence yet that this is happening.
One option that was considered and rejected is the creation of a bespoke CGW right that has reduced scope or duration, which may balance the ability of AI-systems to generate such large quantities of protected work. Many respondents suggested that this option might provide a suitable fallback position in the future, if it transpires that the current protection of CGW via copyright is damaging to human creators.
AI Inventorship for Patent Applications
The issue of AI-inventorship of patents has been covered extensively, particularly following the UK Courts’ decisions in Thaler v Comptroller-General, in which it was held that a real person must be provided as the inventor of Thaler’s patent application (discussed previously).
The respondents’ general consensus was that there is no need at present to change the law to allow AI inventorship on patent applications.
But the UKIPO noted that AI-inventorship will need to be discussed in the future, particularly in light of contrasting decisions taken in some other countries. The UKIPO proposes take an active role in advancing international discussions on harmonising AI inventorship provisions.
Conclusion
No changes in law will be made to account for AI creators and inventors. Does this mean that the discussion over AI inventorship in the UK is over? Perhaps for the time being.
An expansive copyright exemption is to be introduced for TDM. According to the Government’s rationale, this is to promote the UK as a location for AI innovation and development. Some rights holders will be threatened by this erosion of copyright protection but the preservation of the “lawful access” requirement may provide some consolation.
Given the UK Government’s aim, it will be interesting to see if they have any proposals on the topic of subject-matter excluded from patentability and whether the current law benefits or hinders AI research in the UK relative to the other centres of AI research.
Reddie & Grose are experienced in prosecuting patent applications for AI inventions at the UKIPO and at the European Patent Office (EPO) and know that patent applications for AI inventions face challenging obstacles compared to the average invention. If you would like to discuss patenting AI in more detail, please reach out to your Reddie & Grose contact or get in touch with one of the authors below.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
