Of ‘Authorless Works’ and ‘Inventions without Inventor’ – The Muddy Waters of ‘AI Autonomy’ in Intellectual Property Doctrine
European Intellectual Property Review (E.I.P.R.), forthcoming 2021
28 Pages Posted: 13 Feb 2021 Last revised: 24 Mar 2021
Date Written: January 29, 2021
Artificial intelligence (AI) has entered all areas of our life, including creative production and inventive activity. Modern AI is used, inter alia, for the production of newspaper articles; the generation of weather, company, and stock market reports; the composition of music; the creation of visual arts; and pharmaceutical and medicinal research and development. Despite the exponential growth of such real- world scenarios of artificial creativity and inventiveness, it is still unclear whether the output of creative and inventive AI processes – i.e., AI-generated ‘works’ and ‘inventions’ – should be protected under cop- yright or patent law. Current doctrine largely denies such protection on the grounds that no human crea- tor exists in cases where AI functions autonomously in the sense of being independent of and uncontrolled by humans. More recently, both the European Parliament and the EU Commission have put the topic on their agenda. Interestingly, their positions seem to contradict each other – one in favour of, one against creating new instruments of protection for AI-generated output. This and the rising debate in legal schol- arship (with equally contradictory positions) invites more analysis. A closer look at the doctrinal founda- tions and economic underpinnings of ‘work without author’ and ‘invention without inventor’ scenarios reveals that neither the law as it stands nor scholarly debate is currently up to the challenges posed by AI creativity and inventiveness.
Keywords: AI, artificial intelligence, robotics, patents, copyrights, intellectual property, innovation, AI autonomy
JEL Classification: K13, K20, K22, K29, O31, O32, O34
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