image: Nerdest.com

image: Nerdest.com

After years of steady but slow progress on making computers “smarter” at everyday tasks, a series of breakthroughs in the research community and industry have spurred momentum and investment in the development of this field. Such innovation has not been met – in most countries – with developments in terms of the law.

However, while many countries’ laws are deficient in terms of artificial intelligence (“AI”) – which is defined as the simulation of human intelligence processes by computer systems and other machines – an array of recent developments has shed light on the growing amount of attention being paid by legislators and other government officials to this field.

On the heels of the United Kingdom government’s implementation of a commission to examine the issues surrounding artificial intelligence, for instance, Members of Parliament voted earlier this year in favor of drafting a set of regulations to specifically govern its use and creation.

In the U.S., the Obama administration said last spring that the government needs to start thinking about “how to regulate and use the powerful technology while it is still dependent on humans,” emphasizing the “risk and complex policy challenges” that come hand-in-hand with AI. In connection therewith, the White House Office of Science and Technology Policy was working to identify challenges and opportunities related to this emerging technology.

Additionally, the administration noted that the federal government – largely by way of the National Science and Technology Council Subcommittee on Machine Learning and Artificial Intelligence – was during Obama’s tenure monitoring state-of-the-art advances and technology milestones in artificial intelligence and machine learning and helping to coordinate Federal activity in this space.

The push towards heightened regulation of AI comes at a time when the risk profile is changing and the impacts (including social ones) that result from the use of AI is growing. It also coincides with a general lack of clarity in terms of the law in this area in most countries, largely due to the absence of regulations and the lack of uniformity when legislation does exist. Still yet, any existing law is likely to evolve somewhat significantly as AI plays an increasingly central role.

Machine-Generated Works: Who Owns the Intellectual Property?

Intellectual property laws will certainly prove to be one of many integral parts of the recent push for AI-related legislation. With the exception of the Copyright Act, provisions in U.S. law that promote innovation and intellectual property rights, including the so-called Intellectual Property Clause of the Constitution, do not explicitly mention that in order for creative works or novel inventions to be protected by law, they must be the result of human efforts. Similarly, the World Intellectual Property Organization’s definition of intellectual property “refers to creations of the mind,” but does not explicitly require that mind to be human.

As such, AI stands – on its face – to potentially fit into the two relevant bodies of law, copyright and patent.

AI and Copyright Law

In the U.S., copyright law – as it stands – does not specifically address ownership of works generated by machines. As set forth in Section 306 of the Copyright Act, “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being […] Because copyright law is limited to ‘original intellectual conceptions of the author,’ the Office will refuse to register a claim if it determines that a human being did not create the work.”

In August 2014, the Register of Copyrights, Maria A. Pallante, released a public draft of the Compendium of U.S. Copyright Office Practices, Third Edition, elaborating on the “human” creator requirement. She stated: “The U.S. Copyright Office makes it clear that a photograph taken by a monkey is not considered registrable because it was not created by a human being. Thus, the monkey “selfie” that has attracted so much media attention in recent weeks cannot be registered.”

Thereafter, in 2016, in response to the widely-followed monkey selfie case (Naruto v. David John Slater et al, No. 3:2015-cv-04324 (9th Cir.)), the Copyright Office updated its rules to clarify that “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’” The rules set forth specific examples of what types of works do not qualify for copyright protection under U.S. law, including “works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

According to Charlotte Walker-Osborn, the Head of Technology, Media and Telecoms Sector at Eversheds Sutherland, “while it follows that a work solely created by a machine is not eligible for US copyright, US law is silent on the issue of ownership of a work created solely or jointly by a machine.”

She continues on to note: “Assuming the machine’s contribution to a joint work with a person could qualify for US copyright, would the owner of the machine jointly own such work with the other person, or would the other person be the sole owner of the work? It would seem reasonable that the owner of the machine would be a joint owner of the work, but there is no explicit US law or case dictating copyright ownership for work generated by a machine.”

AI and Patent Law

U.S. patent law is similarly opaque. Title 35 of the U.S. Code defines the inventor – in a patent scenario – as “the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.” Moreover, Congress has held that the Patent Act is intended to “include anything under the sun that is made by man.” (S Rep. No 1979, 82d Cong., 2d Sess., 5 (1952)).

While there is no specific prohibition on patent protection for inventions created by AI set forth in the Patent Act and no case law on the issue, “a machine is not likely to be named an inventor since it is not an ‘individual’ and the ‘conception’ standard appears to contemplate inventorship by a person rather than a machine,” according to Walker-Osborn.

In light of the push for regulation, 2017 will likely be a year that we will see legislators on an international scale grapple with and update their laws to deal more comprehensively with AI. Officials in the U.S., United Kingdom, European Union and Japan, among others, “have all indicated they will look at the legal implications of AI (including in relation to intellectual property and liability) in 2017.”

Also in need of consideration: How AI will change the legal profession and what regulations will come into play in regards to liability for acts and omissions in connection with AI (aka: the legal implications as to who is liable for the acts and omissions of AI delivered outcomes) – both of which will be addressed in upcoming articles within a growing series of AI-related posts.