AI regulation
Who owns the output?
If your business uses artificial intelligence (AI) and it’s creating content, you may want to protect your rights in whatever it creates. Giles Pratt and Emily Rich examine the legal structures that can help.
Use IP law
IP law provides an obvious solution – in particular, the law of copyright. But does copyright exist in AI-generated content?
Under UK law, in order for a literary, dramatic, musical or artistic work to get copyright protection, it must be ‘original’. The courts have interpreted this to mean that the author must have created the work through their own skill, judgement and effort. At the EU level (under InfoSoc and the Database Directive), certain works must be the author’s own intellectual creation to qualify for copyright protection. But can the originality requirement be satisfied by a non-human author?
This focus on personhood suggests that a work lacking an identifiable human author might not fit the bill. However, it’s worth keeping in mind that the UK may move away from the intellectual creation test post-Brexit, so watch this space.
Even if copyright does arise in an AI-generated work, there is then the question of who owns it. Under UK law, ownership of a computer-generated work lies with the person who makes the arrangements necessary to create the work. Traditionally, this has meant the human author who used the software to produce the work.
This focus on personhood suggests that a work lacking an identifiable human author might not fit the bill. However, it’s worth keeping in mind that the UK may move away from the intellectual creation test post-Brexit, so watch this space.
The position is less clear when the role of the computer is upgraded from assistant to producer. Who owns the copyright if the ‘person’ making the necessary arrangement is an algorithm? In cases of ‘simple’ AI, it seems likely that the human using or directing the software would be the author. But it’s less clear for AI that can make unsupervised decisions based on ‘deep learning’ from previous data sets.
The EU Commission has recently highlighted the need to review how traditional IP rights apply to AI-generated content, so things should get clearer in the future.
Harness contracts to fill in the gaps
In the meantime, businesses that own or license AI can use contractual protections. On a licensing deal, the parties will want to know who owns the rights (if any) in the AI output – and also in any ‘learning’ enhancements to the AI itself that are generated by its analysis of the licensee’s own data sets. The parties can protect their positions by including confidentiality and data security restrictions in the licence. And if you’re buying a business that owns or licenses in AI, make sure to review this in your due diligence.
A version of this article first appeared on Freshfields’ TQ blog.
Authors
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Giles Pratt Partner
London
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Emily Rich Senior Associate
London