In February of this year, in Issue 7 of Inside Cambridge, I commented briefly on what the "Goldilocks zone" for innovation looks like in the context of our Fundraising Report, and looked ahead to several developments likely to impact IP rights in the coming year. Since then, there has been a flurry of activity.
The Innovation team at Mishcon de Reya have digested the Government's response to its consultation on AI, held our excellent Annual Brand Matters Live IP seminar, participated in the 33rd Fordham Annual IP Conference (where I chaired a panel of experts from Brazil to California to Europe to Singapore and Hong Kong discussing emerging international copyright issues pertaining to AI, from the perspectives of innovators, rightsholders, the judiciary, academics and lawyers in private practice), hosted hundreds of our clients and contacts at a special Afternoon Tea reception as part of the INTA Annual Meeting held this year in London, and attended the World Intellectual Property Organization's Annual Panelists' Meeting in Geneva.
While each of these events have implications for all aspects of IP law; AI, understandably, remains at the forefront of many people's minds. And while there are dozens of AI-related court cases pending around the world (with over 100 in the USA alone – sign up to our tracker to receive alerts on GenAI/IP cases), there have been few concrete developments which settle any of the various contested issues, and many governments appear to be hesitant to enact any new legislation that may impact the growth of their AI industries or its adoption. Everyone appears to agree that something needs to be done; but there is no consensus on what that "something" should be.
In the UK, appeals in relation to the High Court's findings last year on certain copyright and trade mark aspects of Stability AI's Stable Diffusion remain outstanding at the Court of Appeal. The UK Government no longer has a "preferred" position on how best to amend copyright law in light of AI, and is seeking more evidence and industry engagement before making any further proposals in this space. The Intellectual Property Office's response to the Supreme Court's decision in Emotional Perception AI v. Comptroller-General does not appear to fundamentally change whether or not innovations relating to artificial neural networks may be protected by a patent. Meanwhile, in the EU, lobbying has begun as legislators begin the process of reviewing the EU's current approach to text and data mining.
The absence of legislative developments in this space is, in a way, simply another development that businesses will have to navigate. Whether they adopt a view on the law and stick with it, or allow their view of the law to inform commercial negotiations in order to derisk their plans, will no doubt depend on the business, and the innovation, at issue, as it always does. But given the absence of clear answers to the most pressing questions raised by AI, there remains scope (and indeed a necessity) for creative thinking and for new approaches to old problems. That is unlikely to change any time soon.