Legal Fictions and the Corporation as an Inventive Artificial Intelligence
Forthcoming Chapter in Research Handbooks on Intellectual Property and Artificial Intelligence (R. Abbott, ed)
26 Pages Posted: 12 Apr 2022 Last revised: 14 Apr 2022
Date Written: January 11, 2022
This chapter’s focus is an alternative form of artificial intelligence: corporations and other private organizations. Unlike their computer-bound AI cousins, corporations have already been granted the legal fiction of personhood status and many accompanying civil rights, including rights of property, contract, privacy and speech. Some of these rights emerged via common law or tradition; others via statute; and in the United States many are also grounded in Constitutional law.
In the intellectual property sphere, corporations already originate and hold many rights. Despite the advent and importance of AI, in all these IP creation scenarios, natural people—humans—continue to play an integral role in actually developing these works into protectable rights. Humans are there for the creation, but ownership originates in the corporation. Importantly for this chapter, the automatic flow of rights do not pass through the hands of any actual human originator, but rather bypass the human. Instead, the corporate owner is projected as the originator as part of the legal fiction of agency law.
An item still lacking from the corporate arsenal is inventorship rights. Yes, a corporation may own or license an invention and its resulting patents. And in fact, most patents are owned by non-human persons. But, the law persists in most nations as it has for more than 200 years that patentable inventions must begin with a human person, the inventor. In that sense, there is no “corporate invention” because corporate ownership of patent rights are derived rather than original—they stem from a transfer of property rights from human inventors who begins the chain of title.
This chapter considers the competing legal fictions of corporate personhood and corporate invention and how those factions operate in the transformed legal regime that places less emphasis on the role of human inventors and their inventive acts.
Keywords: AI, Artificial Intelligence, Corporate Inventor, Inventorship
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