In October 2020 the European Parliament (“EP”) issued three Resolutions which focus on: an ethical framework for artificial intelligence (“AI”), civil liability for damage caused by AI technology, as well as intellectual property rights (“IPRs”) to works created by, or with the assistance of, AI. In this alert, we will briefly discuss the main points raised by the Resolution on intellectual property rights for the development of artificial intelligence technologies (“Resolution“), which constitutes the proactive approach to the interrelationship between AI and IPRs and the proposal for its regulatory framework.
Regulatory framework for AI technologies
Firstly, the EP stresses the importance of creating a fully harmonised legal framework for AI technologies. Thus, it suggests that any future EU-regulatory framework relating to IPRs to AI works should take the form of a regulation, rather than a directive, in order to avoid a fragmentation of the European digital single market. This is quite surprising, especially in terms of copyrights, as to date it was EU directives - rather than regulations - that regulated them.
Copyrights or new IPRs regime to works created by AI
There is a hot debate about whether AI works should fall under copyright protection. Given this, the Resolution draws a distinction between AI-assisted human creations and AI-generated creations. The EP proposes that where AI is used only as a tool to assist an author in the creation process, the current copyright framework remains applicable. Works autonomously produced by artificial agents and robots, on the other hand, might not be eligible for copyright protection due to the lack of a human author. At the same time, the EP agrees that certain AI-generated works may be protected under the new IPR legal framework in order to encourage investments in this form of creation. At this stage, however, it does not propose any specifics, but states that rights to AI-generated works should be assigned to a natural or legal person (not a machine) and calls for a technologically neutral approach to such protection.
Legal personality for AI
The EP makes it clear that it would not be appropriate to give AI technologies legal personality. It points out that assigning such legal personality to AI machines/systems might have a negative impact on human creators’ incentives.
Patentability of inventions created by AI
The EP stresses the increasing number of AI-related patents (400 % increase of published AI patent applications in the last decade as stated by EP here). There is a concern that the lack of an appropriate legal framework in the area of patents could lead to massive litigation in the short term. The EP points out that the greatest challenge to the protection of patents created using AI systems is the requirement for a comprehensive description of the underlying technology of the invention. In general, the EP calls for an easier way for patenting AI works in order to foster the development of technology in Europe.
Other proposals
The report also emphasises the importance of sharing non-personal data generated within the European Union - especially for SMEs and start-ups as well as creating a single European data space. EP promotes a human-centred approach to AI but without hindering the development of AI technology. With this regard, it recommends examining the implications of AI and related technologies under the current IP systems of, for example, patent law, copyrights and related rights, trademarks and designs, as well as protection of databases, computer programmes and trade secrets. It also highlights the role of secure and sustainable 5G networks for the full deployment of AI technologies.
Next steps
The European Commission is expected to publish a draft legislative proposal on AI in early 2021. While some reports suggest that the pandemic has diminished the appetite for tech regulation, it seems that AI will be crucial in COVID recovery, and therefore it remains on the EU legislators’ radar. As recently as late November 2020, the Commission published the new Action Plan on IP, which, among other things, seeks to ensure that the IP framework is fit for the digital age.
Practical implications
The Resolution calls for a high level of IPRs protection and legal certainty in the context of the AI, which will encourage investment in new technologies in the EU. Furthermore, shaping the legal framework for IPRs in the context of AI in the form of a European regulation guarantees a uniform strategy for companies based in more than one European country. Finally, the EP recommends a practical approach, i.e. an assessment of the implication of IPRs to AI for various business sectors. The implementation of EP’s recommendations may lead to the development of legal solutions in this area that are adapted to the needs of practice and business.
