The UK Intellectual Property Office (IPO) has launched a consultation on policy options for changes to patent and copyright law in order to protect technology created by artificial intelligence. This follows on from an earlier call for views on artificial intelligence and intellectual property.

The consultation paper has invited comments on certain policy options, namely:

1. To remove copyright protection for computer-generated works, or replace the current protection for such works with a new right of reduced scope and duration.

Currently, computer-generated works are protected for 50 years from when the work is made. Concerns have been expressed about this as the UK is one of a small number of countries to give such copyright protection. Views have been invited on the creation of a new, more limited, right for works made jointly by AI and a human being. Such a new right would not, however, exist where AI had been used by a human being to help create the work.

2. To improve the licensing environment for text and data mining, or to adopt a new text and data mining exception for any use, or to extend the existing copyright exception to protect both commercial research and databases.

Text and data mining features heavily in the use and development of Al, but the current copyright exception enabling its use is limited to non-commercial research. Extending the exception to include commercial research could promote further innovation.

The consultation paper has invited views on whether, if such an exception was to be created, rights holders should be able to opt out from the mining of all of their works, individual works, or particular collections of works.

Views are also invited on whether educational materials, model licences or codes of practice would improve the licensing environment by facilitating negotiations between users and rights-holders. Whilst it is recognised that licences may give greater legal certainty, increased costs may result.

3. To allow patent applications to identify AI as an inventor, or broaden the definition of “inventor” to include humans responsible for an AI system that creates inventions, or create a new type of right to protect such inventions.

If inventions developed by artificial intelligence could be patentable, this would address issues that have been raised recently about the challenges associated with attributing an invention directly to a human

The consultation paper notes that individuals could be considered human inventors if they programme, configure, or operate the devising AI or select the input data or recognise relevant applications of the AI output. Although the consultation paper does not suggest that the AI system should be able to own any patent rights, this change could allow the AI system to be named as the inventor on a patent application.

A new right, which would be for less than 20 years, could have a narrower test of inventive step or not involve an obviousness test but could automatically protect new AI devised inventions, subject to the courts’ ruling on their validity.

The consultation paper is expected to stimulate much discussion on what reforms should be made to UK intellectual property law to accommodate the issues raised by artificial intelligence.

The consultation paper closes for discussion on 7 January 2022 and is available to view here.

This article was co-written by Manahil Qadir.