Artificial intelligence has recently exploded in popularity thanks to systems such as OpenAI’s ChatGPT. While platforms like ChatGPT are bringing powerful AI to the public, AI systems are already hard at work in industries such as information technology, medicine, pharmaceuticals, mining and more. These sectors have benefited greatly from the rise of AI, but the rapidly-evolving technology presents a few key concerns when it comes to intellectual property. As your business’ most important asset, protecting your intellectual property and any works generated by an AI should be a top priority. Given the lack of clarity surrounding AI in Australia’s IP law, there is lots of confusion about how the two interact. In this article we’re going to look at the basics of intellectual property and AI and discuss how the current legislation applies.
As a rapidly growing sector, countries around the world are struggling to keep up with how quickly AI products have taken over. Many jurisdictions – including Australia – have yet to develop specific legislation to address how AI relates to intellectual property. Until that happens we can use existing laws and court rulings to determine how AI is affected by:
Copyright. Australia offers automatic copyright protection to the creators of unique images, music and text (including computer code). That means the person or company that programs an AI system owns copyright over the source code.
Patents. AI platforms may be patentable if they implement technical innovation. Obtaining patents for computer-related inventions in Australia can be complex, and each application is assessed on an individual basis.
Trade Marks. AI platforms are eligible for trade mark protection just like any other software platform (e.g. through a name or logo). Furthermore, it is possible for an AI to generate work that includes trade marks. The use of trade marks that appear in an AI-generated work may infringe the rights of the original owner of the IP, particularly if used commercially.
The rise of artificial intelligence presents two main challenges when it comes to patents:
Whether AI platforms and programs can be patented. Like we touched on above, obtaining an Australian patent for a computer-based invention (including AI systems and algorithms) can be complex. In Australia, computer-based inventions aren’t patentable if they simply perform known functions, including data processing. That means an AI platform may be ineligible for patent protection if its operation doesn’t involve a technical innovation. On the other hand, if the AI offers an innovation in the technology, such as improving upon the speed or efficacy of existing methods of data processing, it may be patentable.
Whether AI-generated inventions be patented. AI has become so sophisticated that some systems are capable of generating new, patentable inventions. A recent ruling by Australia’s Federal Court has clarified that an AI system cannot be named as the inventor on a patent application. While this may appear to present unique challenges in industries such as pharmaceuticals that use AI to discover, test and manufacture products, in many cases the problem of AI inventorship may be avoided by including a human inventor (e.g. the user of the AI system).
The rights to the intellectual property of AI-generated works generally belongs to the person who used the AI to generate the content. Australia’s copyright system doesn’t define who owns AI-generated works, but the recent Federal Court decision hints at the country’s stance towards AI ownership of intellectual property.
To keep it simple, we can say that any works you generate using an AI belong to you, much the same as if you had created them yourself. For example, if you wrote a short story, you would own the copyright and have the exclusive right to commercially exploit your work. Just the same, if you asked an AI to write a short story, you would also own the copyright. This may not apply if you’re using an AI like ChatGPT with an end user agreement which specifies that ownership of its AI-generated content remains with the system’s creator.
The final thing to consider is the way AI operates. In most cases, AI networks draw on existing information and content to generate new works. This means it’s possible for AI-generated work to contain intellectual property (in part or in whole) that is legally owned by another party. If that’s the case, the legal owner retains their rights to the work, and they may be able to prevent you from using it for commercial purposes.
Powerful AI systems are revolutionising the way the world works, and they’re having a profound effect on how inventors and companies protect their IP. While Australia’s legislation is yet to catch up to AI, it’s still possible to protect your unique ideas and works using our current systems. If you need help with intellectual property and AI, get in touch with the team at Kings!
Kings Patent and Trade Marks Attorneys is an independent firm based in Australia. Our team offers decades of experience, allowing us to navigate, prosecute, protect and obtain all types of intellectual property protection. With our specialisations including software and technology innovations, we’re uniquely positioned to obtain protection for AI systems and AI-generated works. Get in touch with us today to find out more or for a confidential consultation with the Kings team!
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