Intellectual Property Justification for Artificial Intelligence

Abstract

Against the backdrop of the current discussion of how AI reshapes certain IP paradigms, this chapter reassesses the need for IP protection in AI markets per se. We assess the question of justification of IP rights for both AI as a tool and AI-generated output in light of the very theoretical foundations of IP protection (from both legal embedded deontological and utilitarian economic standpoints). Traditionally, IP is granted due to deontological reasoning according to which a human creator’s efforts and personality have to be awarded and protected, and economic reasoning, according to which exclusive rights in intangible goods have to be established in order to remedy market failure in public goods markets. IP ought to serve as a regulatory system of stimulation of creation and innovation using market forces to achieve this goal. Based on the current state of knowledge however, it seems that specific market implications of the widespread use of most AI applications may have altered the justification for AI-related IP protection in certain cases. Whereas this seems particularly true regarding AI tools, the case for AI outputs may be different.

Keywords: artificial intelligence, machine learning, intellectual property, intellectual property justification, innovation, software, algorithm, black box, technology, digital economy