In a talk titled “AI or Humans: Who Owns Intellectual Property Rights?”, Michael Messinger and Iona Kaiser, partners at the international law firm Vorys, Sater, Seymour and Pease, spoke about the expanding role that large-scale language models play in creative endeavors.
“Six years ago, [U.S. Patent and Trademark Office’s] “It's kind of surprising that we have AI inventors among the patent owners of inventors on all kinds of technologies, whether it's fabrics, beds, plants, circuits,” Messinger said. “It's a leading indicator of where the field is heading.”
But managing AI, copyright and intellectual property (IP) is more about an organisation's talent management policies than it is about the growth of technology, experts say.
Authorship decision
When it comes to content-generation copyright, the lawyers say they've noticed that when generating images through an AI platform, the end user is often a human. If you simply enter prompts into the AI and ask it to create something, that person is not the creative person behind the product. It's important to note that AI by itself cannot register copyright, the lawyers say.
“There's no intellectual property because there's probably no copyright and no inventor, which means the company doesn't own the intellectual property that comes out of the process,” Messinger said.
He added that companies still need to ensure they have the proper licensing for those AI tools and check indemnification arrangements in case the output causes any problems.
Intellectual property rights arise when individuals use AI tools to add to existing inventions, quality control, and manufacturing processes, and use machine learning to improve the output of processes, structures.
“This is the sort of thing that's likely to be a pretty significant contribution that involves more than just the end user of the AI tool,” Messinger said, “and in that case there may be authorship in some circumstances.”
Copyright guidelines state that protected works must be created by humans, not AI tools, and that the person who completes the work is the author, he said.
The precedent for this was already there. Barrow Giles Lithographic Ltd. v. Salony(1884) The U.S. Supreme Court upheld Congress's authority to grant copyright protection to photographs, arguing that because the photographer chooses the frame, the field of view, and controls the lighting, copyright should apply.
But in this brave new world of AI, the U.S. Copyright Office now requires copyright applications to include a disclaimer stating that AI tools were used to generate the item.
“It's clear that any safeguards will be limited and constrained by the contributions of AI tools,” Messinger said.
“Big pharmaceutical companies”
With public AI models and free tools like ChatGPT, anything input into the model becomes part of the public record.
“But ChatGPT is now looking to make a profit and is selling the models to individual companies. If you ask the models: [topics] “What you enter into the prompts does not become part of the model itself,” Kaiser says.
This can be important to protect the intellectual property of scientific inventions. In any case, the same rules regarding copyright apply in that setting.
Kaiser gave one example: A prostate cancer researcher works in a lab with access to advanced AI tools that can design compounds. Using the AI, the researcher tries to create a compound that attacks prostate cancer. When instructed, the AI presents five options that might work against the cancer. The researcher goes back to the lab and is able to synthesize a drug that might attack the cancer, but unfortunately, also attacks everything else. Finally, the researcher tweaks the drug to create a viable solution.
“The guidelines of the Japan Patent Office state that [the drug] “It's patentable,” Kaiser said. “What they're saying is that the last step, the synthesis, is also a step that the researchers did, but it's a reduction of practice. By making the structural modifications, this goes from a non-patentable process to a patentable process. The patent office also said that the structurally modified compound itself is patentable.”
But that doesn't mean the discovery process is immune to legal challenges: Kaiser said “big pharma” would likely be the first to settle some of those legal disputes until precedent is set.
“There are so many challenges in developing new drugs, and as these challenges are addressed over the next few years, we will start to get some answers,” she said.
