The UK Government has published its response to its consultation, launched in October 2021, on potential changes to the UK IP protection framework regarding the interplay between IP rights and AI. We discussed the consultation, as well as the outcome of a previous call for views.
The consultation centred on the following three specific issues. The outcome of each reflects the Government's overarching objective of reaching evidence-based conclusions which strike the right balance between encouraging innovation in AI technology and the use of AI, against the importance of preserving the role of IP rights in the promotion of human creativity and innovation.
Copyright in works made by AI
At this time, the Government does not propose to make changes to the law providing copyright protection for computer-generated works where there is no human author, albeit this is an area that it will keep under review. The use of AI in the creation of these works is still in its infancy, and therefore the impact of the law, and any changes to it, cannot yet be fully evaluated. The consultation also asked about the implications of AI and the policy on computer-generated works in relation to design protection but no significant concerns were raised by respondents.
Text and data mining using copyright material
The Government's response recognises the need for an expanded data mining exception for copyright and database rights for any type of use. Rights-holders will not be able to opt-out but will have safeguards to protect their content, including a requirement for lawful access (albeit contract terms preventing the making of copies to carry out TDM will be unenforceable). Of the options discussed in the consultation, the Government has therefore chosen the widest (compared to the recently introduced EU exception, which whilst allowing TDM for any use, does incorporate a right-holder opt-out). Such an exception is likely to promote the use of AI in the analysis of copyright material for machine learning, research and innovation purposes. It will also, however, impact on existing business models based around licensing of such data, and may therefore impact on charges for access to relevant works.
Patents for inventions devised by AI
The Government has no present plans to introduce changes to the UK's patent inventorship criteria. As such, the Government's response endorses the Court of Appeal ruling concerning the Dabus machine that under UK law an AI machine cannot be named as an inventor and all patents require a human inventor. Whilst the Government's response indicates that this is an area which will be kept under review in the light of further innovation in AI technologies, it also acknowledges the concern raised by many respondents to the consultation, that any unilateral change to UK law on inventorship may prejudice international patent filings in markets that are important for UK interests. Accordingly, the ambition must be that any future change to the law on inventorship should be harmonised internationally.
Finally, the Government notes in its response in this section its concern that recent publicity about naming an AI system as an inventor risks the incorrect conclusion that UK patent law does not protect AI-assisted inventions. AI-assisted inventions that meet the legal requirements for protection may of course lead to the grant of a patent. The issue for the future will be over how to deal with AI systems that are truly advanced enough to invent without human intervention, a position most respondents to the consultation considered had not yet been reached.
The Government says it will identify suitable legislation to make the required changes on text and data mining in due course. In relation to patents for inventions devised by AI, the Government has committed to advance AI inventorship harmonisation discussions in international fora. In the meantime, we continue to wait to hear if the Supreme Court will grant permission to appeal in the Dabus litigation.