AI & IP: Innovation & Creativity in an Age of Accelerated Change

Abstract

From a glimmer in the eye of a Victorian woman ahead of her time, AI has become a cornerstone of innovation that will be the defining technology of our time. Around 2016, the convergence of computing power, funding, data, and open-source platforms tipped us into an AI-driven Fourth Industrial Revolution. AI can make a difference in accelerating disruptive innovation by bringing a data-driven approach to invention and creation. To do so, the law must embrace change and innovation as an imperative in a journey towards an ever-shifting horizon. AI both enables and challenges how we reward individuals whose ingenuity, industry, and determination overcame the frailty of the human condition to offer us inventions that make our lives more efficient and pleasurable. It will take a clear-eyed view to ensure that copyright and patent laws do not impede the very progress they were designed to promote.

In the creative arts, the work for hire doctrine provides a pragmatic legal vehicle for interests to vest and be negotiated by the commercial interests best placed to encourage investment in both the technology and its downstream uses. Like human-generated work, AI-generated work is an amalgam of mimicry mined from our own learning and experience. The training data it draws upon, both for expressive and non-expressive sues, is merely grist for AI’s mill. Consequently, fair use must be applied to prevent holdup by copyright owners and stifle transformative uses enabled by AI. AI can also be used to decipher complex copyright infringement cases such as those involving musical compositions. In the technological arts, the controversy will revolve around who owns innovative breakthroughs primarily or totally attributed to AI. How should these breakthroughs affect the regard for the notion of PHOSITA? How does AI change the equation when it comes to infringement? And how can AI help save the patent system from obsolescence?

Keywords: artificial intelligence, copyright, patent