EU report on AI-assisted creativity and invention

The European Commission has published its final report on Trends and Developments in Artificial Intelligence: Challenges to the Intellectual Property Rights Framework. It finds, where AI is a mere tool of authors and inventors, that no current changes are needed to patent on copyright law but recommends changes to guidance and further research into future legal reforms.

The report focusses on copyright and patent protection for “AI-assisted creative and innovative outputs” in science (meteorology), media (journalism) and pharmaceutical research.

Significantly, one of the assumptions of the report is that “fully autonomous creation or invention by AI does not exist, and will not exist for the foreseeable future” and it does not consider whether AI needs to be considered an author or inventor. Nor does it consider the protection of inputs to AI (e.g. datasets) or the use of AI in the moderation or enforcement of IP rights.

Within this scope, the Report concludes:

The existing concepts of copyright and patent law are sufficiently
abstract and flexible to meet the current challenges from AI.

However, it suggests further research and changes to guidance:

taking into account the practical implications of AI technologies, the Report identifies specific avenues for future legal reform (if justified by empirical evidence), offers recommendations for improvements in the application of existing rules (e.g. via guidelines), and highlights the need to study the role of alternative IP regimes to protect AI-assisted outputs, such as trade secret protection, unfair competition and contract law.

Although autonomous creations of AI are outside the scope of the Report, the introduction takes the view that these cannot be protected as patents (which accords with the EPO, UKIPO and UK High Court decisions on the DABUS patent applications) or under copyright. It also suggests the UK and Irish protection for computer-generated copyright works are “perhaps … better understood as a species of related rights” (which could bring into doubt EU reciprocal recognition such IP as copyright under international treaties.)

EU copyright law

The Report makes the following conclusions and recommendations for EU copyright law:

• Current EU copyright rules are generally sufficiently flexible to deal with the challenges posed by AI-assisted outputs.
• The absence of (fully) harmonised rules of authorship and copyright ownership has led to divergent solutions in national law of distinct Member States in respect of AI-assisted works, which might justify a harmonisation initiative.
• Further research into the risks of false authorship attributions by publishers of “work-like” but “authorless” AI productions, seen in the light of the general authorship presumption in art. 5 of the Enforcement Directive, should be considered.
• Related rights regimes in the EU potentially extend to “authorless” AI productions in a variety of sectors: audio recording, broadcasting, audiovisual recording, and news. In addition, the sui generis database right may offer protection to AI-produced databases that are the result of substantial investment.

Regarding sui generis database rights, the Report suggests that “The creation/obtaining distinction in the sui generis right is a cause of legal uncertainty regarding the status of machine-generated data that could justify revision or clarification of the EU Database Directive.” (This was touched on in the European Commission’s Evaluation of Directive 96/9/EC on the legal protection of databases, which considered a German case, Autobahnmaut, concerning a database of machine-generated toll data, but the Evaluation concluded overall that “engaging in a process of reforming the sui generis right would at this stage be largely disproportionate to its overall policy potential or the limited range of problems it currently generates for stakeholders“.)

EU patent law

The Report makes the following conclusions and recommendations for EU patent law:

• The EPC is currently suitable to address the challenges posed by AI technologies in the context of AI-assisted inventions or outputs.
• When assessing novelty, IPOs and the EPO should consider investing in maintaining a level of technical capability that matches the technology available to sophisticated patent applicants.
• When assessing the inventive step, it may be advisable to update the EPO examination guidelines to adjust the definition of the POSITA and secondary indicia as to track developments in AI-assisted inventions or outputs.
• When assessing sufficiency of disclosure, it would be useful to study the feasibility and usefulness of a deposit system for AI algorithms and/or training data and models that would require applicants in appropriate cases to provide information that is relevant to meet this legal requirement.
• For the remaining potential challenges identified in this report arising out of AI-assisted inventions or outputs it may be good policy to wait for cases to emerge to identify actual issues that require a regulatory response, if any.
• Further study on the role of alternative IP regimes to protect AI-assisted outputs, such as trade secret protection, unfair competition and contract law, should be encouraged.