From automating mundane tasks to producing entirely new ideas, AI is shaping how we work, create, and think. With all these advancements come important questions, especially when it comes to intellectual property (IP) law. After all, how do we protect innovation in an age where machines are creating their own inventions?
In this article, we’ll examine how AI intersects with IP law, discuss the challenges it poses, and explore what innovators and businesses need to know in order to navigate the evolving legal landscape. We’ll also touch on Australia’s efforts to adapt its IP laws and what the future may hold for the intersection of IP and AI.
Australia’s IP system, which includes copyright, patents, trade marks, and designs, is built to encourage and protect creativity and innovation. As a result of the disruptive role of AI, these frameworks are being tested and new complexities are being introduced.
In Australia, the IP system is well-established; however, like other jurisdictions, it was designed at a time when the creator was assumed to be human. In this regard, Australian IP law does not specifically address the role of AI in the creation of IP. We therefore find ourselves trying to fit the concept of AI into the existing legal framework.
The result is a grey area in which questions of ownership, responsibility, and accountability are being debated.
Copyright protects works of artistic craftsmanship, like books, paintings, music, etc. But if AI is an artistic craftsman, how does the existing law, which requires a human author, protect something created by a machine?
In recent years, there has been a growing number of lawsuits over AI-generated art. For example, the AI program DALL·E has been generating images based on prompts from users, some of which are close to famous works of art. Importantly, many of these images are based on works whose copyright has since expired. In this regard, it is noted that copyright has a term ending 70 years after the death of the author. These lawsuits are highlighting the challenges that arise when AI can mimic or even surpass human creativity. In particular, if AI generates something, will it hold that copyright indefinitely because it cannot die?
It is a well-established law that authors can derive “inspiration” from earlier works, provided they are not substantially identical. Substantial identity is determined if, on a side-by-side comparison, there is a total impression of resemblance. In such cases, the two works will be considered substantially identical. Provided AI systems produce something not substantially identical to a work already protected by copyright, they would not infringe. However, this sort of determination is incredibly nuanced and is something that must be determined by the courts. In this regard, it is hard to imagine how AI will appear in a court or who will take the blame for the potentially unsanctioned actions of the AI—will it be the creator of the AI or will it be the person who input the prompt?
In more recent AI-copyright news, the News Media Association in the UK launched a campaign called Make It Fair. The campaign aims to protest “the UK government’s plan to potentially exempt AI firms from copyright restrictions when training their models.”
Patents are a bit more straightforward—they protect functional aspects of an invention, such as a locking mechanism. But even here, AI is making things complicated. If an AI system invents something, like a new technology or a better way of doing something, can that invention be patented?
The DABUS case explored this exact question. In Australia, the courts ultimately ruled that AI systems can not be legally recognised as inventors in patent applications. This meant that the patent application was found invalid.
Trade marks are another area where AI is creating new challenges. For example, using AI to design a logo. An AI could come up with a logo that looks very similar to an existing trade mark. If you use that AI-generated logo in your business, you could be infringing on someone else’s IP.
Questions of ownership have become a key talking point in the AI debate. If a human trains an AI model or gives it specific instructions, does the human own the resulting work or does the AI developer? These questions are especially important when it comes to creative industries. If an AI generates a bestselling novel, a chart-topping song, or a groundbreaking scientific discovery, who gets the profits and the credit?
Another concern in the age of generative AI is the risk of patent flooding or “patent trolling.” This is when AI is used to generate a huge number of patent applications to block competitors or create legal leverage.
Another strategy being explored is defensive publishing, where companies release their own IP to prevent competitors from patenting similar innovations. As AI systems continue to evolve, the potential for “patent flooding” will only increase, making it a serious concern for businesses trying to protect their IP.
Importantly, AI-generated patent applications are generally unlikely to succeed during examination and cannot be used as enforcement tools. However, they can still create challenges for others trying to prove the novelty of their own inventions if AI-generated content is considered prior art.
Businesses that use AI tools without fully understanding the potential legal implications risk legal trouble. If a business uses AI to produce something commercially, the generated content might infringe existing IP rights. It’s important for businesses to be aware of these risks and take steps to ensure they’re not infringing earlier rights.
IP Australia is currently exploring how existing laws can be adapted to this new AI-dominated world we find ourselves in. But this is just part of a global conversation. The EU and the US are also looking at how their own IP frameworks can address the intersection of AI and IP.
The Australian government has indicated that it is carefully watching how these issues unfold in other jurisdictions and is working towards a more flexible and inclusive IP system that accommodates AI technology. However, we are yet to see any legislative change.
So, what can businesses and creators do to protect their IP in this brave new world of AI? Here are a few practical tips:
Conduct Thorough Novelty Searches: Before filing patents or registering any sort of IP, make sure your AI-generated work is truly innovative. If someone else has already protected a similar idea, there will be difficulties in achieving registration.
Engage with Legal Experts: It’s always a good idea to consult with legal experts. They can help you navigate the grey areas of ownership and IP protection, offering tailored advice for your specific situation. The team at Kings IP are always happy to help—contact us today.
Use AI Responsibly: Be aware of potentially infringing IP when using AI. It is recommended that you document how AI tools are used and ensure that the generated content doesn’t infringe existing rights—this might even be an obligation for you if you are a director of a company. Ensuring your business has a clear process for AI usage and content creation will help mitigate these risks.
Stay Informed: Given the rapid evolution of AI, it’s crucial to stay informed about changes in IP law. Regularly reviewing your IP strategy and adapting to new regulations will ensure your company remains protected. The team at Kings IP can help you with this!
Intellectual property experts constantly stress the importance of understanding AI. Some businesses have already encountered issues with AI-generated content and IP rights, particularly regarding branding and logos.
There is no denying that AI is transforming the way we create and innovate, but it also brings up some serious challenges for IP law. For businesses, staying ahead of the curve on IP protection is key to safeguarding their work and avoiding legal issues down the line.
If you’re unsure if your business is using AI technology correctly or whether your IP is properly protected, contact Kings IP today. With our expertise in all things IP as well as the latest technological innovations, we’re uniquely qualified to advise you in relation to AI systems and AI-generated works.
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