European Commission must address intellectual property and AI

Europe

The Committee on Legal Affairs (JURI) of the European Parliament has published three draft reports relating to artificial intelligence (AI). This note is about the draft report on intellectual property rights for the development of artificial intelligence technologies. The report was published on 24 April 2020 and was discussed by JURI members on 12 May. The draft report is currenting awaiting a JURI committee decision on how to proceed and is likely to be sent to the Commission and member states. The full draft report is available here.

The general tone of the draft report

The general tone of the draft report is in favour of intellectual property rights in relation to AI technology. The report acknowledges that intellectual property aims to promote innovation, creativity and access to knowledge and information.

Stated aims

The stated aims of the report include providing uniform protection of intellectual property rights throughout the European Union in order to ensure prosperity of European citizens, making the EU a world leader in AI technologies, ensuring AI is a tool that serves people and the common good, ensuring public confidence in new technologies, to be a legislative benchmark at international level, to promote legal certainty.

Legal personality for AI machines

The report recommends against legal personality for AI machines. Thus the JURI committee seems to have changed it’s position at least since a few years ago when there was a draft JURI report stating that legal personality should be given to AI machines.

A definition of AI

The report states that a definition of AI is needed which is technology neutral and flexible enough to encompass future technology. The question of a definition of AI is fraught with difficulties because scientists have never developed an agreed definition and have preferred to think of AI as a field of study or a branch of computer science. 

Blanket AI regulation versus sector-specific AI regulation

On the one hand the report envisages blanket regulation for AI since it speaks about the need for a definition of AI which is technology neutral. On the other hand the report recommends that priority be given to assessment by sectors in which AI technologies are applied. In this respect the draft report appears to agree with the European Commission white paper on AI of February 2020, which proposes regulation for high risk AI which, generally speaking, is identified using a sector based approach.

Patentability of AI technology in Europe

The report does not seem to advocate any change in the status quo. The report states the current position under the European Patent Convention which is that AI technology is patentable where it solves a technical problem using a technical solution and is new and inventive. 

Patentability of inventions created by AI machines

Currently it is not possible to obtain patent protection for inventions created by AI machines unless a human inventor is listed on the application paperwork. There is no detailed discussion in the draft report about the lack of patent protection available for inventions created by AI machines. However, there is a mention of the question of ownership of intellectual property rights created by AI machines as being “an issue” and there is a mention of the problem of how to protect industrial creations made by AI machines as being a “raised question”. There is also a statement that “consideration must be given to protecting technical … creations generated by AI, in order to encourage this form of creation”. 

Copyright works generated by AI machines

The draft report seems to be in favour of assigning ownership of copyright in artistic works generated by AI machines to be assigned to the person who prepares and publishes a work lawfully, provided that the technology designer has not expressly reserved the right to use the work in that way.

Trade marks and designs

The draft report “looks forward to a review of current policy on trade marks and designs, as these can be generated autonomously by AI applications”.

Use of AI technology by intellectual property rights issuing authorities

The draft report states that “the use of AI technology cannot be a substitute for human verification in relation to the granting of intellectual property rights”. Having said that, the report acknowledges that AI tools are increasingly used by rights issuing authorities in Europe in order to keep costs down and improve quality. 

Use of AI technology by intellectual property rights adjudicators

The draft report states that “the use of AI technology cannot be a substitute for human verification in relation to the determination of liability for infringements of intellectual property rights”. Thus the report seems to envisage that AI tools will be used by intellectual property adjudicators in Europe. 

A new IP right for data?

The question of data is perhaps the biggest one running through the draft report in terms of the amount of potential change from the status quo. The Commission is said to be considering legislation regarding economic operators whose purpose is to make use of data (presumably these are the tech giants). Potential revisions to the Database Directive are mentioned and assessment of the European Data Strategy. 

Comments

The draft report is useful because it reminds the European Commission about the importance of intellectual property rights and role these play in enabling sharing of knowledge as well as promoting innovation. It highlights lots of questions without giving any definitive answers at this stage. The question of data used by AI technology in relation to “tech giants” is perhaps the biggest question in the draft report in terms of the amount of potential change from the status quo.