By: Marla Grossman
“As we near the end of 2024, policy discussions about AI and IP should prioritize the rights of creators and innovators while upholding the principles that have long governed our IP system.”
As artificial intelligence (AI) technology continues to evolve at an unprecedented pace, it brings with it numerous questions regarding the application of intellectual property (IP) laws. The intersection of AI and IP raises critical considerations about the rights of creators and innovators, the interpretation and enforcement of established laws, and the potential impact on the future of creativity and innovation. As 2024 ends, and a new presidential administration prepares to develop and enact new policies, it is imperative to establish a framework of general principles that will guide policy development around AI, ensuring that the underlying goals of the IP system are upheld.
The Rights of Innovators and Creators
At the forefront of any discussion about IP and AI should be a commitment to respecting the rights of inventors and creators. The fundamental purpose of the IP system is to encourage creativity and innovation by granting creators exclusive rights to their works. This exclusivity incentivizes individuals and organizations to invest time, resources, and effort into creating new ideas, products, and technologies. In the context of AI, it is essential that policies do not undermine this system by failing to recognize the contributions of human creators.
AI technologies often rely on large datasets that include copyrighted materials and patented innovations. The integration of such materials into AI training processes poses significant challenges to existing intellectual property frameworks. As we navigate this landscape, it is crucial to ensure that the rights of human creators and inventors are not made subordinate to advancements in AI technology. Policies should prioritize mechanisms that safeguard the interests of IP owners while still allowing for innovation and the development of AI technologies. Balancing these interests is essential to foster both creativity and technological progress.
The Stability of Established IP Laws
Currently, there is no evidence to suggest that a market failure necessitates a weakening of established IP laws. Longstanding patent, trademark, trade secret, and copyright laws have served as foundational pillars of our economic and creative systems. These laws have been designed to protect the rights of creators, encouraging a robust environment for innovation.
The rapid evolution of AI should not be viewed as a reason to dismantle these protections. The established legal framework for IP has withstood the test of time, and there is no compelling argument for significant reform solely based on the advent of AI. Instead, a thoughtful approach that recognizes the interplay between IP law and AI can lead to a balanced policy landscape that benefits all stakeholders. Such a balanced policy will require additional guidance from regulating governmental bodies like the U.S. Copyright Office (USCO) and the U.S. Patent and Trademark Office (USPTO).
Fair Use and AI
AI models often rely on vast datasets, frequently comprised of copyrighted works, to generate outputs. This mass ingestion raises questions about the transformative nature of the use and the potential harm to the original creators. Hopefully courts will clarify that our current legal framework dictates that the use of copyrighted material in training AI systems does not automatically qualify as fair use.
Section 107 of the U.S. Copyright Act of 1976 outlines the doctrine of fair use. The section lists four factors to consider in determining whether a use qualifies as fair use: a) purpose and character of the use of the copyrighted work; b) the nature of the copyrighted work; c) the quantity and quality of the material used; and d) the effect on the market. As for this last factor, if the AI’s output could substitute for the original work and harm its market, this weighs against fair use. This is particularly relevant if the transformative AI-generated content competes directly with the original work. While the four factors of fair use in copyright law are derived from statute, their interpretation and application have been shaped by case law, as courts consider these factors in specific cases to determine whether a particular use qualifies as fair use. Since evaluation of fair use requires a nuanced evaluation of individual cases, the USPTO and the USCO establishing clearer guidelines for what will and will not be considered fair use will help ensure that the rights of creators are respected while still allowing for the advancement of AI technologies.
Inventorship and AI
As innovators both large and small are increasingly using AI tools in their work, clarity as to inventorship, meaning who qualifies as an inventor of the patent, is important. Uncertainty surrounding inventorship and patentability of AI-assisted inventions could impede innovation, hindering the development and application of new technologies. As AI technology becomes further integrated into everyday business operations, innovators must be able to confidently leverage AI tools in good faith without fear of inventions being deemed unpatentable due to new and complex inventorship considerations.
Thus, it is a positive development that the USPTO has provided clear guidance that it will maintain the status quo for inventorship determinations even in the case of AI-assisted inventions and that an invention made by a natural person should not be rendered unpatentable merely because an AI tool was used as part of the inventive process. Similarly, it is helpful that the USPTO has indicated that a natural person can be listed as the inventor or joint inventor if the natural person contributes significantly to the AI-assisted invention. The agency has also stated that there is no requirement for a named inventor to contribute to every claim in an application or patent. It has spelled out that contribution to a single claim is sufficient, however, each claim must have been invented by at least one named inventor. In other words, a natural person must have significantly contributed to each claim in a patent application or patent. In the event of a single person using an AI system to create an invention, that single person must make a significant contribution to every claim in the patent or patent application.
These clear positions in the USPTO guidance appropriately focus the inquiry on the contribution of the natural person to the invention rather than on whatever may be done by an AI system being used as a tool of innovation. This is consistent with existing law on inventorship and supports certainty and predictability of the patent system.
Subject Matter Eligibility and AI
Establishing greater clarity will be needed in other policy areas, perhaps including patent subject matter eligibility – assessment of whether the invention itself can be patented – since some stakeholders are concerned current law lacks clarity and consistency. Currently, key terms like “abstract idea” and “natural phenomenon” are not clearly defined in the USPTO guidelines for subject matter eligibility. Instead, the guidelines offer general descriptions and examples, which can lead to ambiguity. Such areas present new challenges with the advent of AI that require adaptation of the legal framework to ensure that innovations are still adequately protected. In such instances, it will be necessary for the USPTO to refine its current guidance – for instance more examples of which AI innovations would be patent-eligible – and/or through additional requests for comment from stakeholders. Clearer guidelines will help reduce ambiguity and ensure that inventors understand how to navigate the patent system effectively.
Disclosure and AI
It will also be important to have clear and consistent disclosure requirements regarding AI – although the rules need not be the same for patent law and copyright law.
It is not necessary for the USPTO to introduce a new disclosure requirement directed to use of AI tools during the inventive process because improper inventorship is already a statutory basis for rejection of a patent application, and there is an existing duty of candor and good faith. Thus, there is no basis for requiring any additional disclosures in patent law.
In the context of copyright registration, however, there is no formal “duty of candor” or “good faith” requirement like there is in patent law. Thus, disclosures regarding ingestion of copyright works by businesses that offer generative AI systems to the public would help ensure that the rights of copyright owners are respected. Moreover, appropriate transparency and record-keeping would benefit both copyright owners and AI developers in resolving questions regarding fair use. Best practices could include maintaining records of what copyrighted works are being ingested and how those works are being used, except where the AI developer is also the copyright owner of the works being ingested by the AI system and/or where the works are licensed by the AI company.
Licensing and Ethical AI Development
To foster a responsible relationship between AI companies and the content and/or innovations they utilize, it is essential that AI organizations obtain appropriate licenses for the works they ingest or utilize. Licensing not only upholds the rights of creators and innovators but also establishes a framework for accountability and ethical development in the AI space. By requiring AI companies to license IP protected works, we can create a more transparent ecosystem that acknowledges and compensates creators for their contributions.
Licensing agreements can be structured in numerous ways, allowing for flexibility and collaboration between AI developers both big and small, content creators and innovators. Such arrangements can include revenue-sharing models, credits for creators and/or innovators, and other forms of compensation that align the interests of all parties. This collaborative approach can pave the way for a more harmonious coexistence between AI technologies of all sizes, the creators and other pioneering industries, promoting innovation while respecting the rights of creators and inventors.
Safeguards Against Infringement
As AI-generated outputs become more prevalent, it is crucial to implement safeguards that prevent the infringement of existing IP rights. For instance, AI systems should be designed with built-in mechanisms that identify and mitigate the risk of generating outputs that infringe on copyrighted works. This proactive approach not only protects the rights of creators but also enhances the credibility of AI technologies as legitimate contributors to the creative landscape.
Developers of AI systems have a responsibility to ensure that their technologies do not inadvertently produce infringing content or products. By investing in tools and methodologies that monitor and analyze AI outputs, companies can demonstrate a commitment to ethical practices and the protection of IP. This responsibility is not merely a legal obligation; it is also an ethical imperative that reflects the values of innovation, respect, and collaboration.
Toward a Better Balance
As we near the end of 2024, policy discussions about AI and IP should prioritize the rights of creators and innovators while upholding the principles that have long governed our IP system. By adhering to the established laws, having the USPTO and the USCO clarify the concepts of fair use in copyright and subject matter eligibility with patents, advocating for licensing agreements, and implementing safeguards against infringement, we can create a framework that fosters creativity and innovation while respecting the contributions of human creators and innovators. The future of AI should be one where technology and creativity coexist harmoniously, driving progress and enhancing our cultural and economic landscape without compromising the rights of those who pave the way for that progress. Only through such a balanced approach can we ensure that the benefits of AI are shared equitably among all stakeholders in the creative and innovative economies.
