AI – Friend or Foe?

Artificial Intelligence (AI) is transforming the way we engage with technology and the internet. The rapid advancement of AI is significantly impacting intellectual property (IP) protection, creating both opportunities and challenges for IP owners, developers and businesses. If used lawfully and legitimately, AI can be a useful asset for protecting IP, as well as exploiting it.

Intellectual property encompasses a broad spectrum, including patents, trademarks, copyright, and trade secrets. Each form of protection is designed to protect different forms of innovation and creativity, giving rights holders control over how their IP is used and, in some cases, the ability to commercialise those rights. These rights can encourage businesses and individuals to invest time, effort and capital in developing new products, technologies and creative works, with legal protection against certain forms of unauthorised use.

AI, with its capacity to analyse vast amounts of data, generate algorithms, and simulate human-like decision-making, has brought about significant developments in various sectors. However, this very capability poses new questions for traditional IP protection, particularly around ownership, authorship, infringement and the use of copyright works to develop AI systems. The presence of AI is becoming more prevalent in society, and its significance in the business sector is likely to continue to growing.

These developments have the potential to change how businesses create, protect and exploit IP. However, it is important to remember that there are also significant potential risks, particularly where businesses use AI tools without understanding how their outputs are generated or what third-party material may be involved. The legal framework is continuing to develop, with governments and regulators considering how existing IP laws should apply to AI.

The European Union has introduced the Artificial Intelligence Act, which adopts a risk-based approach to regulating AI systems. The Act distinguishes between different levels and types of risk and imposes different requirements depending on the AI system and how it is used. Although the AI Act is not an IP-specific regime, it forms part of the wider regulatory environment in which businesses using AI must operate.

European Union’s Artificial Intelligence Act

The EU AI Act does not replace existing intellectual property law, meaning that businesses must continue to consider copyright, trade mark and other IP rights when developing or using AI systems. The regulation does, however, form part of a wider framework governing the development and use of AI in the EU.

Similarly, the UK has not introduced a single comprehensive AI statute governing intellectual property. Instead, existing IP legislation continues to apply while the Government considers how the law should develop in response to AI. The UK Government has been examining issues including copyright protection for AI-generated works and the use of copyright works in training AI models. Its current position recognises that AI-assisted works may benefit from ordinary copyright protection where there is sufficient human creativity. UK law also currently provides a specific form of protection for certain computer-generated works where there is no human author.

The position is therefore more nuanced than simply asking whether AI-generated content is protected by copyright. The answer can depend on how the content was created, the extent of human involvement and the type of work involved.

Under the current regulatory framework, the use of AI presents risks to the intellectual property (IP) of rights holders and raises concerns regarding authorship, ownership, and copyright infringement. The output generated by AI systems may be based on patterns identified from very large datasets, which can include copyright-protected material. However, the mere fact that an AI model has been trained on copyright works does not necessarily mean that every output infringes copyright.

Copyright infringement may arise where an AI-generated output reproduces a substantial part of a protected work without permission. The UK Government has recognised that AI systems can, in some circumstances, generate content that reproduces protected works or substantial parts of them.

As such, the original owner of the IP could potentially file a copyright infringement claim where the relevant legal requirements for infringement are met. The circumstances in which responsibility may fall on an AI developer, provider or user will depend on the particular facts and the applicable legal framework.

Developers and providers of AI tools therefore need to consider how copyright-protected material is obtained, used and incorporated into their systems. Contracts and licensing arrangements with third parties, including artists, image library owners and database owners, may be important in establishing how data can be used.

As for users of AI systems, they should ensure that any content they generate is reviewed before being used commercially, particularly where it may incorporate or resemble third-party intellectual property. Businesses should also consider the terms on which AI tools can use information supplied to them, particularly where confidential or commercially sensitive material is involved.

Given the challenges faced by businesses and IP professionals in keeping pace with AI advancements, awareness is needed of the potential risks associated with AI-generated content. If you intend to utilise AI-generated content for marketing or product design purposes, it is important to consider whether that content could infringe third-party IP rights, including copyright or trade marks. Businesses should also consider whether they have appropriate permissions, licences or contractual protections in place before using AI-generated material commercially.

Steps companies could take to help protect IP:

• Conduct regular audits of IP assets to help identify and value IP that may require additional protection.
• Although in the UK it is not possible to ‘register’ copyright as copyright protection generally arises automatically when an eligible original work is created, using symbols such as the copyright sign © can help make others aware that rights are claimed in the work. Similarly, the ® symbol should only be used where a trade mark has been registered.
• Consult IP specialists to establish which aspects of a creation may be protected and how those rights can be used or commercialised.

Should you need any advice regarding the protection of your IP rights or bringing a claim where you consider someone has infringed your IP through the use of AI, please contact us. We can also assist with drafting contracts and settlement agreements and putting the appropriate structures in place, whether negotiations to resolve a dispute are at an early stage or more advanced.