Artificial Intelligence

Unit V
AI and Intellectual Property Law
AI and Intellectual Property Law
AI and copyright Issues
Ownership of AI-generated content,
Fair use and AI-generated works
Patents and AI innovations, AI in the innovation process,
Trademarks and AI,
Challenges in regulating AI-generated trademarks.
1. Copyright Ownership: One of the primary issues is determining who owns the copyright to works
created by AI systems. In traditional copyright law, the author of a work is typically considered the initial
owner of the copyright. However, in the case of AI-generated works, there may not be a human author in
the traditional sense. This raises questions about whether the creator of the AI system, the person who
trained or programmed the AI, or the entity that deployed the AI should be considered the copyright owner.
Example
Artistic Creations: Consider a scenario where an AI system generates a piece of artwork, such as a
painting or a musical composition. In this case, determining the copyright owner becomes challenging. Is it
the person or organization that developed and deployed the AI system? Or should the copyright be
attributed to the individuals who trained the AI on specific datasets or parameters? Additionally, if the AI
system was trained on existing copyrighted works, does the resulting artwork infringe upon those
copyrights1.
Literary Works: Imagine an AI system that generates written content, such as articles, poems, or stories.
Similar questions arise regarding copyright ownership. Should the copyright belong to the creator of the AI
system, the person who provided the initial input or training data, or the entity that deployed the AI for
generating the content? Furthermore, if the AI-generated text includes excerpts from existing copyrighted
material, does it constitute fair use or derivative work?
Photography and Image Generation: AI systems can also generate visual content, including photographs
and images. In this case, determining copyright ownership may depend on factors such as who programmed
the AI, who provided the training data, and who selected the parameters for generating the images.
Additionally, if the AI-generated images resemble existing photographs or artworks, questions may arise
regarding infringement and originality.
Software and Code Generation: AI systems are increasingly being used to generate software code and
algorithms. In this context, copyright ownership may be attributed to the developers or organizations that
created the AI system, as well as to the individuals who provided the initial input or training data. However, if
the AI-generated code closely resembles existing copyrighted code, issues of infringement and fair use may
arise.
2. Originality and Creativity:
Copyright law typically protects original works of authorship that possess a sufficient degree of creativity.
AI-generated works may meet this criteria if they are the result of creative choices made by the AI system or
its human creators. However, there is debate over whether works generated by AI can truly be considered
"original" if they are based on pre-existing data or algorithms.
Example:
Artistic Creations: AI-generated artworks, such as paintings, sculptures, and music compositions, can
demonstrate originality and creativity. For instance, "The Portrait of Edmond de Belamy" created by the AI
algorithm developed by Obvious Art is a notable example. The algorithm analyzed a dataset of historical
portraits and generated a unique artwork that was later sold at auction.
Literary Works: AI systems can produce original literary works, including poems, short stories, and even
novels. "The Policeman's Beard is Half Constructed" is a collection of short stories generated by a neural
network trained on a dataset of science fiction stories. While the stories may seem nonsensical or surreal, they
showcase the AI's ability to produce original creative content.
Film and Video: AI algorithms can also generate original video content, such as short films or animations.
For example, the AI-generated film "Sunspring" was created using a recurrent neural network trained on
science fiction screenplays. While the dialogue and plot may be unconventional, the film demonstrates the
AI's capacity to generate original narratives.
Design and Fashion: AI systems can be used to create original designs and fashion concepts. For
instance, the fashion brand Anouk Wipprecht collaborated with Microsoft to create the "Spider Dress 2.0,"
a wearable garment designed using AI algorithms. The dress features robotic spider-like limbs that respond
to the wearer's biometric data, showcasing the fusion of technology and fashion in a novel and creative
way.
Poetry and Prose: AI-generated poetry and prose can exhibit surprising levels of originality and
creativity. For example, the AI poetry generator "Poetweet" creates original poems by analyzing Twitter
feeds and generating verses based on patterns in the data. While the poems may lack human-like emotion
or depth, they demonstrate the AI's ability to mimic poetic language and form.
Derivative Works:
Another issue is whether works generated by AI are considered derivative works based on pre-existing
copyrighted material. If an AI system generates a work that incorporates elements of existing copyrighted
works, it may raise questions about infringement and the extent to which the AI-generated work can be
considered original.
AI-Generated Music Remix:
Let's say an AI system is trained on a dataset of popular songs and is programmed to generate new musical
compositions. The AI system analyzes the patterns, melodies, and rhythms present in the training data and
produces a new piece of music that incorporates elements from multiple existing songs.
In this scenario, the AI-generated music may be considered a derivative work because it incorporates elements
from pre-existing copyrighted material (i.e., the songs in the training dataset). While the AI system may
introduce variations or transformations to the original material, the resulting composition still bears a
resemblance to the underlying works.
The copyright implications of this AI-generated music remix would depend on various factors, including:
Fair Use Considerations: Whether the use of copyrighted material in the AI-generated music qualifies as
fair use. Factors such as the purpose and character of the use, the nature of the copyrighted works, the
amount and substantiality of the portion used, and the potential market impact would need to be considered.
Licensing and Permissions: Whether the creators of the AI system obtained the necessary licenses or
permissions to use the copyrighted material in the training dataset. Failure to obtain proper authorization
could result in copyright infringement claims from the rights holders of the original songs.
Originality of the AI-Generated Work: Whether the AI-generated music contains enough original
expression to warrant copyright protection as a new and distinct work. While the AI system may have
combined elements from existing songs, if the resulting composition exhibits sufficient creativity and
originality, it could be eligible for copyright protection in its own right.
4. Fair Use and Transformative Use:
Fair use is a doctrine in copyright law that allows for the limited use of copyrighted material without
permission from the copyright owner for purposes such as criticism, comment, news reporting, teaching,
scholarship, or research. The application of fair use to AI-generated works is an area of ongoing debate,
particularly regarding whether the use of copyrighted material by AI systems qualifies as transformative and
therefore permissible under fair use.
Example:
Educational Purposes: Using copyrighted material in educational contexts can often be considered fair use,
particularly if it's for teaching, scholarship, research, or nonprofit educational purposes. An AI-generated
presentation that incorporates images or excerpts from copyrighted texts for educational purposes, such as in
a classroom setting or academic lecture, may be deemed fair use.
Transformative Art: Transformative use involves repurposing copyrighted material in a way that transforms
its original meaning, message, or context. For example, an AI-generated artwork that digitally alters and
manipulates copyrighted photographs to create a new and unique composition could be considered
transformative use, especially if it offers a different aesthetic or thematic interpretation.
News Reporting and Commentary: Fair use allows for the use of copyrighted material in news reporting,
criticism, or commentary. An AI-generated news article that includes excerpts from copyrighted sources to
provide context or analysis of a current event may be considered fair use, provided that the use is limited
and serves a journalistic purpose.
AI and copyright Issues
At the moment, works created solely by
artificial intelligence — even if produced from
a text prompt written by a human — are not
protected by copyright.
When it comes to training AI models, however,
the use of copyrighted materials is fair game.
That’s because of a fair use law that permits
the use of copyrighted material under certain
conditions without needing the permission of
the owner
WHAT IS AI-GENERATED CONTENT?

AI-generated content refers to written text,

video, code, audio and other media
produced by generative AI tools. These
machines are trained on large amounts of
data, allowing them to create relevant
outputs in response to a word, phrase,
question or other kind of input.
Generative AI has significantly altered the way we
live, work and create in a short amount of time. As a
result, the deluge of AI-generated text, images and
music — and the process used to create them — has
prompted a series of complicated legal questions.
And they are challenging our understanding of
ownership, fairness and the very nature of creativity
itself.
Can AI Art Be Copyrighted?
It has long been the posture of the U.S. Copyright Office that
there is no copyright protection for works created by non-humans,
including machines. Therefore, the product of a generative AI
model cannot be copyrighted.
The root of this issue lies in the way generative AI systems are
trained. Like most other machine learning models, they work by
identifying and replicating patterns in data. So, in order to
generate an output like a written sentence or picture, it must first
learn from the real work of actual humans.
If an AI image generator produces art that resembles the work of
Georgia O’Keefe, for example, that means it had to be trained using
the actual art of Georgia O’Keefe. Similarly, for an
AI content generator to write in the style of Toni Morrison, it has to
be trained with words written by Toni Morrison.
Legally, these AI systems — including image generators,
AI music generators and chatbots like ChatGPT — cannot be
considered the author of the material they produce. Their outputs
are simply a culmination of human-made work, much of which has
been scraped from the internet and is copyright-protected in one
way or another.
Lines Get Blurry When Humans and AI Collaborate
Creative work that is the result of a
collaboration between a human and machine, which is often the case
with AI-generated creations, is a complicated matter.
“If a machine and a human work together, but you can separate what
each of them has done, then [copyright] will only focus on the human
part,” Daniel Gervais, a professor at Vanderbilt Law School, told
Built In. He mainly focuses on intellectual property law, and has
written extensively on how it relates to artificial intelligence
There has been an extensive use of computer programs in the generation of copyrighted works since the
1970s. The computer generated works did not create much problems with respect to copyright ownership.
The reason was that computer programs were considered mere tools to support the activities which were
creative in nature and the human intervention was required for the production of the work. These
programs were just like stationery items which required human beings to use them to create works. The
things have completely changed now. With AI in place, the computer programs are no more tools alone
and have the potential of generating the works independently by taking their own decisions.
The AI has the potential to create an enormous amount of work with less investment in a very short span
of time. The works created by AI may qualify for copyright protection in all the jurisdictions for being
original. The requirement of use of “skill and judgement” in originality may be deemed to have been
satisfied by virtue of the “programming and parameter on which such AI actually compiles and creates the
work”
However, there will be no author in the case of AI-generated work. In case of AI-assisted works, there is
human intervention. Therefore, in case of latter, the person who caused the work to be created by using
artificial intelligence may claim himself to be the author, but the same is not true where the work has been
created by AI itself without any human intervention. The issue of authorship in such cases has puzzled all
countries of the world
There can be three broad possibilities with respect to the authorship issue
– (i) the copyright system should recognize authorship for AI;
(ii) there should be no authorship in AI-generated work and the work should fall into the “public domain”; and
(iii) there should be sui generis law rather than copyright law to protect such works.
The copyright protection serves as an incentive for the author to produce more creative works using his skills,
labour and judgement. If the AI is recognised as an author and the AIgenerated works are protected under the
copyright law, then it would mean that “human creativity” and “machine creativity” are on the same pedestal.
On the other hand, if AI-generated works are not protected by copyright law, then it would necessarily mean
that human creativity is preferred over machine creativity. Preferring machine creativity over human creativity
or putting both at the same pedestal is likely to kill human creativity in the long run
Considering AI as an author of the AI-generated work may cause several issues.
The work generated by AI may not be flawless. The AI may use biased and toxic
language21 which may result in defamation or obscenity; incite violence on the
lines of caste, creed or religion; or produce any other undesired result. In such a
scenario, it will be difficult to fix the civil and criminal liability of the AI as it has
not been recognized as a person. At the most such work may be deleted or in worst
cases that AI software may be banned, but till then, it may be too late and
irreparable damage might have been caused by that work. Another issue is that if
the AIgenerated work happens to be “substantially similar” to an existing work
which may have copyright, how will the AI be held as an infringer in such a case?
Further, if AI is treated as an author, it will not be entitled to transfer ownership in
the work, in absence of personhood.
The premise which reflects from civil law countries such as Germany, France and Spain indicates that
works created must bear the “imprint of the author’s personality”. The authorship therefore, should be
denied to AI in the AI-generated works as the AI does not have personality.
Making AI a legal entity would mean that it should possess the capacity to enter into contracts with other
persons. It will also have duties under the law and will be liable for its acts. Most importantly, it should
have the capacity “to sue and be sued” under the law. Most of the countries are not in a favour of granting
legal status to AI.
Who Owns the Copyright to Generative AI Outputs?
Assuming some AI-created works may be eligible for copyright protection, who owns that copyright? In
general, the Copyright Act vests ownership “initially in the author or authors of the work.” Given the lack
of judicial or Copyright Office decisions recognizing copyright in AI-created works to date, however, no
clear rule has emerged identifying who the “author or authors” of these works could be. Returning to the
photography analogy, the AI’s creator might be compared to the camera maker, while the AI user who
prompts the creation of a specific work might be compared to the photographer who uses that camera to
capture a specific image. On this view, the AI user would be considered the author and, therefore, the
initial copyright owner. The creative choices involved in coding and training the AI, on the other hand,
might give an AI’s creator a stronger claim to some form of authorship than the manufacturer of a camera.
Companies that provide AI software may attempt to allocate the respective ownership rights of the
company and its users via contract, such as the company’s terms of service. OpenAI’s Terms of Use, for
example, appear to assign any copyright to the user: “OpenAI hereby assigns to you all its right, title and
interest in and to Output.” A previous version, by contrast, purported to give OpenAI such rights. As one
scholar commented, OpenAI appears to “bypass most copyright questions through contract.”
Copyright Infringement by Generative AI
Generative AI also raises questions about copyright infringement.
Commentators and courts have begun to address whether generative
AI programs may infringe copyright in existing works, either by
making copies of existing works to train the AI or by generating
outputs that resemble those existing works.
Does the AI Training Process Infringe Copyright in Other Works?
AI systems are “trained” to create literary, visual, and other artistic
works by exposing the program to large amounts of data, which
may include text, images, and other works downloaded from the
internet. This training process involves making digital copies of
existing works
.As the U.S. Patent and Trademark Office has described, this
process “will almost by definition involve the reproduction
of entire works or substantial portions thereof.” OpenAI, for
example, acknowledges that its programs are trained on
“large, publicly available datasets that include copyrighted
works” and that this process “involves first making copies of
the data to be analyzed” (although it now offers an option to
remove images from training future image generation
models). Creating such copies without permission may
infringe the copyright holders’ exclusive right to make
reproductions of their work.
AI Inventions are Patentable
“Can AI inventions be patented?” is one of several important questions intellectual property lawyers
have been asking as the widespread use of artificial intelligence (“AI”) makes its mark on the legal
landscape. On February 13, 2024, the United States Patent and Trademark Office (“USPTO”) issued
its clearest statement yet on the patentability of AI-assisted inventions. In a notice published in the
Federal Register, the “Inventorship Guidance for AI-Assisted Inventions”, the USPTO laid out new
guidance on the determination of inventorship for AI-assisted inventions. Notably, the guidance
stated that AI-assisted inventions are not categorically unpatentable due to improper inventorship if
one or more natural persons significantly contributed to the invention. The notice follows President
Biden’s October 2023 executive order on the “Safe, Secure, and Trustworthy Development and Use of
Artificial Intelligence,” which promised further guidance from the administration in February 2024.
While the guidance states the USPTO’s position on patenting AI-assisted inventions, it is not yet a
rule; the office is seeking public comments during the 90-day comment period. In addition, the
USPTO guidance also provided some principles for determining the inventorship of an AI-assisted
invention as well as the impact such determination has on other aspects of patent practice. Below are
some important takeaways from the USPTO guidance.
Inventors and joint inventors named on U.S. patents and patent
applications must be natural persons. Applicants should not list AI systems
as joint inventors. The USPTO clarified the principles set forth in Thaler v.
Vidal,1 specifically noting that Thaler is an acknowledgment that the
statutory language clearly limits inventorship to natural persons but is not
a recognition of any limits on the current or future state of AI. While AI
systems and other non-natural persons may not be listed as inventors on
U.S. patents and patent applications, the use of an AI system by a natural
person will not preclude that natural person from qualifying as an inventor
(or joint inventors) if the natural person significantly contributed to the
claimed invention (as discussed below). Accordingly, the inability to list an
AI system used to create an invention as a joint inventor does not render
the invention unpatentable due to improper inventorship.
A natural person who creates an invention using an AI system must “contribute
significantly” to every claim set forth in the invention, as specified by
the Pannu factors. In determining AI-assisted inventorship, the USPTO pointed to
the test used in Pannu v. Iolab Corp.,2 which is often used to determine joint
inventorship. To be considered a named inventor, each natural person must “(1)
contribute in some significant manner to the conception or reduction to practice of
the invention,3 (2) make a contribution to the claimed invention that is not
insignificant in quality, when that contribution is measured against the dimension
of the full invention, and (3) do more than merely explain to the real inventors
well-known concepts and/or the current state of the art.” A natural person must
have significantly contributed to each claim in a patent or patent application, and
determination is made on a claim-by-claim and case-by-case basis. 4 For example,
where a single person uses an AI system to create an invention, that single person
must make a significant contribution to every claim in the patent or patent
application.
The USPTO provided a non-exhaustive list of principles that can help inform the application of
the Pannu factors in AI-assisted inventions:
•A natural person’s use of an AI system in creating an AI-assisted invention does not negate the person’s contributions
as an inventor.
•Merely recognizing a problem or having a general goal or research plan to pursue does not rise to the level of
conception.
•Reducing an invention to practice alone is not a significant contribution that rises to the level of inventorship.
•A natural person who develops an essential building block from which the claimed invention is derived may be
considered to have provided a significant contribution to the conception of the claimed invention even though the
person was not present for or a participant in each activity that led to the conception of the claimed invention.
•A person simply owning or overseeing an AI system that is used in the creation of an invention, without providing a
significant contribution to the conception of the invention, does not make that person an inventor.
There is no requirement to disclose to the USPTO that the inventor used AI as part of the invention
process. This differs from the United States Copyright Office’s policy on AI applications, which requires the
disclosure of AI tools used in the generation of the works and explanation of the human author’s
contribution.
This guidance regarding AI-assisted inventions applies to design and plant patents and patent
applications as well. For example, the use of AI by a natural person will not disqualify that person as an
inventor or joint inventors of the claimed plant so long as the plant was created with significant
contribution(s) from the natural person.
The USPTO has taken a similar approach to other national courts and patent offices on prohibiting
the listing of AI as an inventor on a patent or patent application. The new USPTO guidance is aligned
with similar approaches from the United Kingdom Intellectual Property Office and the European Patent
Office.
Written comments to the above guidance must be submitted to the USPTO within 90 days (i.e., on or before
Monday, May 13, 2024). The USPTO is also seeking public comments on the examples provided to the
public and examiners on the application of the guidance in specific situations listed here. Please contact your
Ropes & Gray team for any further questions.