AI and IP: a Tale of Two Acronyms
Jozefien Vanherpe · 2021
INTRODUCTION 1. In a way, it is currently ‘the best of times’. While some aspects of our present-day society could definitely be characterised as ‘the worst of times’, technological innovations have revolutionised our way of living and have changed many things for the better. It is simultaneously the epoch of belief and incredulity, where we revel at machines that are seemingly able to create artistic works and, even, invent. The interface of AI and intellectual property (IP) law is readily apparent and the possible topics of this chapter are manifold. This chapter provides a bird’s-eye view of the current status of research into some of the relevant legal issues from a primarily EU, civil law perspective. The present extensive introduction further delineates the topic (part 1). It includes a brief analysis of the possible uses of AI as a tool in the IP sector as well a detour along the essentials of IP law. The two-pronged substantive body of the chapter analyses the main legal challenges raised by AI – primarily machine learning AI – in an IP context. First, focus lies with the IP protection of AI technology under patent law and copyright law (part 2). Subsequently, attention shifts to the IP protection of output generated through or by an AI system (part 3). Could such output be susceptible to IP protection under copyright and/or patent law? If this is not the case, should it, and, if so, who could or should own the rights, and what should the modalities of protection be? Without providing the final answer to these questions, the conclusions of this chapter (part 4) caution against unreservedly tearing down the foundations of IP protection for the mere sake of additional incentive creation. 2. AI is a multidimensional, evolving concept with different possible definitions, as explained in chapter 1, part 2 of this book. In this chapter, we will look at AI as the science and engineering of ‘making intelligent machines’, of ‘making computers do things that require intelligence when done by humans’. However, AI algorithms do not function in the same way as the human brain does – in other words, computers do not ‘think’ as we humans do.