1.3. Intellectual property rights in AI initiatives

With the recognition of many benefits and potential risks AI technologies could bring, the EC and the EP adopted different texts to harmonise and avoid fragmentations of the Intellectual Property (IP) framework in the Union, as well as fostering AI innovation in Europe. Thus, the EP first adopted a resolution on Intellectual Property Rights (IPR) for the development of AI Technologies in October 2020, later followed by an action plan on IP adopted by the Commission in November 2020. The Resolution and action plan’s mutual objectives are the following:
– Harmonized, future-proofed, and equal IP standards across the Union.
– Creating an environment conducive to creativity and innovation.
– Balanced and multidimensional IPR protection.
– Clarification of copyright and patent protection (or lack of) status of AI-assisted output and autonomously AI-generated output.
– Further emphasis on human review.
– Making AI technologies for verifying facts and information available urgently to reduce the risks of possible mass manipulation of citizens being used to destabilise democracies.
– Encouraging an industry dialogue.
– Engaging in stakeholder discussions.

1.3.1. Copyright

The Resolution recommends the following concerning AI and Copyright intersection:
– The difference between AI-assisted human creations and AI-generated creations should be distinguished, to avoid challenges concerning ownership, inventorship, appropriate remuneration, and issues related to potential market concentration.
– Work autonomously created by AI systems should not be eligible for copyright protection. If such work is considered copyrightable, it is recommended that ownership of rights should be assigned to natural or legal persons that created the work lawfully.
– Where AI is used only as a tool to assist an author in the process of creation, the current IP framework remains applicable. However, more research is necessary for the purpose of evaluating human input regarding AI algorithmic data.

1.3.2. Patent

The EP adopts a pro-innovation point of view by highlighting that, technical creations generated by AI technologies must be protected under the IPR legal framework, in order to encourage investment in this form of creation and improve legal certainty for citizens, businesses, and inventors. Therefore:
– First, patent protection can be granted provided the invention meets the patentability test.
– Second, mathematical methods are excluded from patentability unless they are used for a technical purpose in the context of technical inventions, which are themselves patentable only if the applicable criteria relating to inventions are met.
– Third, if an invention relates either to a method involving technical means or to a technical device, it is considered as a whole and considered technical in nature, enabling the invention not to be excluded from patentability.

1.3.3. Database Protection

The Parliament emphasises that the European Data Strategy must ensure a balance between promoting the flow of wider access to and the use of and sharing of data on the one hand, and the protection of IPRs and trade secrets on the other, while respecting privacy and data protection rules. The Resolution also gives a substantial place to the use of non-personal data by AI technologies to promote voluntary non-personal data sharing between businesses and sectors on fair contractual agreements, including licensing agreements, as well as ensuring interoperability.

Authors:
Lidia Dutkiewicz, Emine Ozge Yildirim, Noémie Krack from KU Leuven
Lucile Sassatelli from Université Côte d’Azur