Rajvinder Jagdev is of counsel at IP law firm Powell Gilbert, specializing in high-tech patent litigation and has advised on a range of IP matters, particularly in the electronics, telecommunications and computer software sectors.
Sam Mitchell is an associate at IP law firm Powell Gilbert with particular experience in a variety of technology areas, including pharmaceuticals, vaccines, medical devices and battery technology.
Jake Tily is a paralegal at IP law firm Powell Gilbert with broad experience in supporting all aspects of intellectual property litigation and able to advise on managing large-scale electronic disclosure exercises.
Artificial intelligence is driving the information revolution and its presence is increasingly commonplace — for example, in smart speakers, self-driving cars, social media monitoring and healthcare technology, to name but a few.
The U.K. government recently released its response to its consultation on “Artificial Intelligence and Intellectual Property: copyright and patents.” In summary, the position (for now) is that the U.K. law will remain unchanged with respect to copyright protection in computer-generated works, as will the law as it relates to AI authorship for copyright works and AI inventorship for patents.
Numerous complex questions remain for regulators, lawyers, programmers, creatives and inventors, particularly in light of the rapid, continual rise of AI. This column addresses a small but significant aspect of this — how AI should be considered in the context of copyright protection and authorship under U.K. law as it presently stands.
We briefly set out the differences between AI inventorship in the context of patents, and AI authorship in copyright law. We then consider how the U.K. Court might approach the issue of AI authorship and joint authorship and conclude with some useful considerations for AI programmers and authors to have in mind.
AI inventorship versus AI authorship
Pursuant to s.13 of the Patents Act 1977 (“PA”), U.K. patent applications must have human applicants. Furthermore, only the deviser of the invention can be named as an inventor (s.7 PA). These two requirements were examined by the U.K. Intellectual Property Office, the U.K. High Court and the U.K. Court of the Appeal in the prominent series of Stephen Thaler trials, where, most recently, the Court of Appeal upheld the rejection of a patent application identifying an AI (DABUS) as the inventor, ruling that a human inventor is required.
The EPO Board of Appeal also recently published their written decision (J 8/20) on this question, following the U.K. Court’s decision, as did the Full Court of the Federal Court of Australia, who reversed the decision of the lower court and held that DABUS cannot be recognized as an inventor under Australian patent law. Appeals to the U.K. Supreme Court and the United States are ongoing, and an appeal is anticipated in Australia.
The Copyright, Designs and Patents Act 1988 (“CDPA”) provides a statutory framework for determining authorship of copyright works. For literary, dramatic, musical and artistic works (so called “LDMA” works), the author is the writer, composer and artist, respectively (s.9 CDPA). For sound recordings it is the producer (s.9(2)(aa) CDPA) and for films, it is the producer and principal director (s.9(2)(b) CDPA)). Films will be a work of joint authorship unless the producer and principal director are the same person.