Three Laws

Kasdan and Pattengale on Once Thought Far-Off-In-The-Future Challenges to Copyright Law Posed by Artificial Intelligence Have Arrived: And I for One-Gulp-Welcome Our New Robot Overlords @michaelkasdan @WigginandDana @nyulaw

Michael Kasdan, NYU School of Law, and Brian A. Pattengale, Wiggin and Dana, LLP, are publishing Once Thought Far-Off-In-The-Future Challenges to Copyright Law Posed by Artificial Intelligence Have Arrived: And I for One—Gulp—Welcome Our New Robot Overlords in 58 les Nouvelles--Journal of the Licensing Executives Society (March 2023). Here is the abstract.

While we are still not in the realm of sentient machines, current-day iterations of artificial intelligence (AI) are demonstrating themselves to be potential sources of creativity which are challenging our understanding of authorship in the context of intellectual property. If AI can create new content based upon its “perceptions,” how is that distinct from human authorship and furthermore, how does or how should AI fit into the current U.S. copyright landscape?

Picht and Thouvenin on AI & IP: Theory to Policy and Back Again: Policy and Research Recommendations at the Intersection of Artificial Intelligence and Intellectual Property @UZH_en

Peter Georg Picht and Florent Thouvenin, both of the University of Zurich Institute of Law, have published AI&IP: Theory to Policy and Back Again Policy and Research Recommendations at the Intersection of Artificial Intelligence and Intellectual Property. Here is the abstract.

The interaction between artificial intelligence (AI) and intellectual property rights (IPRs) is one of the key areas of development in intellectual property law. After much, albeit selective, debate, it seems to gain increasing practical relevance through intense AI-related market activity, an initial set of case law on the matters, and policy initiatives by international organizations (e.g. WIPO, EPO) and lawmakers. Against this background, Zurich University’s Center for Intellectual Property and Competition Law (CIPCO) is conducting, together with the Swiss Intellectual Property Institute (IPI), a research and policy project that explores the future of intellectual property law in an AI context. This paper briefly describes the AI/IP Research Project and presents an initial set of policy recommendations for the development of IP law with a view to AI. The recommendations address topics such as AI-inventorship in patent law; AI-authorship in copyright law; the need for sui generis rights protecting innovative AI output; rules for the allocation of AI-related IPRs; IP protection carve-outs in order to facilitate AI system development, training, and testing; the use of AI tools by IP offices; suitable software protection and data usage regimes.

Download the article from SSRN at the link.

Trapova on Intellectual Property Law and Artificial Intelligence @alinatrapova @Elgar_Law

Alina Trapova, University of Nottingham School of Law, is publishing Intellectual Property Law and Artificial Intelligence in Encyclopedia of International Economic Law (Krista Nadakavukaren Schefer and Thomas Cottier, eds., Edward Elgar Publishing). Here is the abstract.

This entry looks at the interaction between intellectual property law (specifically copyright and patents) and artificial intelligence.

Download the essay from SSRN at the link.

Carroll on Rules of Engagement: Copyright and Automated Gatekeepers @SHULawReview @AUWCL @MikeCarroll_US

Michael W. Carroll, American University College of Law, has published Rules of Engagement: Copyright and Automated Gatekeepers’ Influence on Creative Expression at 52 Seton Hall Law Review 1137 (2022). Here is the abstract.

This Essay turns questions about artificial intelligence and copyright law around. Rather than focus on algorithms as potential authors, this Essay argues for more attention to the role of algorithms as gatekeepers on social media and how creators adapt their creative choices to meet the demands of these automated tastemakers. Using TikTok’s “For You” algorithm and its role in breaking Lil Nas X’s hit song “Old Town Road” as a case study, this Essay poses the question whether algorithmic gatekeeping is simply a difference in degree or a difference in kind from an artist’s perspective. While tentative, this Essay concludes that this change is a difference in kind because of the rule-bound nature of software, the absence of transparency and accountability for algorithmic decisionmaking, and the flawed data models that inform this form of cultural gatekeeping.

Download the essay from SSRN at the link.

AI and IP Law--Position Statement of the Max Planck Institute for Innovation and Competition of 9 April 2021 on the Current Debate @mpi_inno_comp

Artificial Intelligence and Intellectual Property Law--Position Statement of the Max Planck Institute for Innovation and Competition of 9 April 2021 on the Current Debate (Max Planck Institute for Innovation & Competition Research Paper No. 21-10). Here is the abstract.

This Position Statement presents a broad overview of issues arising at the intersection of AI and IP law based on the work of the Max Planck Institute for Innovation and Competition research group on Regulation of the Digital Economy. While the analysis is approached mainly from a perspective de lege lata, it also identifies questions which require further reflection de lege ferenda supported by in-depth interdisciplinary research. The scope is confined to substantive European IP law, in particular, as regards copyright, patents, designs, databases and trade secrets. Specific AI-related issues are mapped out around the core questions of IP law, namely, the eligibility for protection under the respective IP regimes, allocation of rights and the scope of protection. The structure of the analysis reflects three key components of AI: inputs required for the development of AI systems, AI as a process and the output of AI applications. Overall, it is emphasised that, while recent legal and policy discussions have mostly focused on AI-aided and AI-generated output, a more holistic view that accounts for the role of IP law across the AI innovation cycle is indispensable.

Download the Position Statement from SSRN at the link.

Ring on the IPO Artifical Intelligence and Intellectual Property Call for Views Copyright

Caoimhe Ring, University of Oxford has published IPO Artificial Intelligence and Intellectual Property: Call for Views Copyright. Here is the abstract.

In response to the UK Intellectual Property Office’s call for views on Artificial Intelligence and Intellectual Property, this paper by the Oxford Intellectual Property Research Centre addresses the impact of artificial intelligence (AI) on exceptions in copyright law. Response focus on balancing the protection of the rights of copyright-holders as against the need for a variety of large data inputs from international sources for ethical, robust and innovative AI development. This paper argues that AI developers may benefit from the quotation exception as a form of ‘global mandatory fair use’, whilst calls for enhanced collective licensing arrangements to ensure proper remuneration for copyright-holders.

Download the call from SSRN at the link.

Specht on Copyright Protection for Algorithm Products @louisa_specht

Louisa Specht, University of Bonn, is publishing Copyright Protection for Algorithm Products? in Wettbewerb in Recht und Praxis 2021. Here is the abstract.

A portrait of a somewhat pale-looking man painted in a style of an artist dead for over 340 years now: “The Next Rembrandt” is an incredibly realistic 3D print work created in 2016 based on data mined from 346 original Rembrandt paintings via algorithm. When the line between man and machine blurs, our existing laws governing inherent anthropocentric rights reach their limits of adequacy — such as copyright protections. Are such algorithm generated works copyright protected and shall they be copyright protected? Do we need to change copyright to protect them? The paper proposes a "phase model" for copyright protection of such algorithm products de lege lata and a new neighboring right de lege ferenda.

Download the article from SSRN at the link.

Mendis, Noto La Diega, Romero-Moreno, and Onishi on AI and IP: The View of BILETA @LawTechGadget @guidonld @bileta

Dinusha Mendis, Bournemouth University, Guido Noto La Diega, University of Stirling, Felipe Romero-Moreno, and Hiroko Onishi, Kingston University, have published Artificial Intelligence and Intellectual Property: The View of The British and Irish Law, Education and Technology Association (BILETA). Here is the abstract.

Between September and November 2020, the UK Intellectual Property Office (UKIPO) ran a consultation about the implications Artificial Intelligence (AI) may have for Intellectual Property (IP) policy, as well as the impact IP may have for AI. This response was prepared on behalf of the British and Irish Law Education and Technology Association (BILETA) by Prof Dinusha Mendis, Associate Prof Guido Noto La Diega, Dr Felipe Romero-Moreno, and Dr Hiroko Onishi. BILETA was formed in April 1986 to promote, develop and communicate high-quality research and knowledge on technology law and policy to organisations, governments, professionals, students and the public. This submission focuses on the maincopyright and trade mark issues in AI.

Download the article from SSRN at the link.

Matulionyte on How Australian Copyright Law Impedes the Development of AI: What Are the Options? @rita_matu

Rita Matulionyte, Macquarie Law School, has published Australian Copyright Law Impedes the Development of Artificial Intelligence: What Are the Options?. Here is the abstract.

Artificial Intelligence (AI) is an emerging technology that has a huge potential in contributing to the Australian economy and addressing economic and social problems in society. However, Australian copyright laws are likely to impede the development of AI, and machine learning in particular, by requiring authorization every time when copyrighted content is used in machine learning processes. This puts Australian AI industries in competitive disadvantage, since other AI-focused jurisdictions, such as the US, EU, UK and Japan, allow such use under copyright exceptions. After analyzing the scope of copyright with relation to machine learning and licensing options, this paper examines different copyright exceptions (fair use, fair dealing and EU-style specific TDM exception) as potential solutions for Australia.

Download the article from SSRN at the link.

Hacialiefendioglu on Matter of Authorship in Works Created With Contribution of Nonhuman Sources @APerzanowski

Meric Hacialiefendioglu, Case Western Reserve School of Law, has published Matter of Authorship in Works Created with Contribution of Nonhuman Sources. Here is the abstract.

Humans have always been prone to finding new ways of creating works. As they discovered untraditional tools, or in other words contributors, the copyrightability of these works become questioned. This dissertation analyzes two kinds of contributors: computer programs and animals. Copyright law does not provide nonhuman authorship. Therefore, the question is whether or not the works generated with the contribution of computer programs and animals bear human expression so that they can be considered human works, thus be copyrightable. This dissertation proposes a test for finding human authorship and applies the test on real-life examples to provide guidelines to determine the copyrightability of the works.