25 April 2023

The concept of artificial intelligence certainly isn’t new, but when Alan Turing wrote his paper on Computing Machinery and Intelligence over 70 years ago, he probably didn’t think that AI would be composing songs and creating artworks. Nonetheless, more and more exhibitions are taking place featuring work generated by AI – some of it prize winning. The now rapid growth in AI created “artistic” work raises interesting questions about the creative value of the work and more prosaic questions about who actually owns the work and the intellectual property (IP) in that work.

Generally speaking, the owner of IP in artistic works will be the person who has created the work. The law currently provides that in the case of computer generated work, the author shall be “the person by whom the arrangements necessary for the creation of the work are undertaken” i.e. the human behind the AI.

Does AI own its own creative work?

IP can be owned by a natural or legal person - an individual, a company, or some other form of legally recognised entity. The question raised by the creation works by AI is whether AI is capable of owning that work – it is, after all, the creator of it. To date, the answer has been a resounding “no”. AI is not a legal entity and cannot “own” property in its own right.

Until recently, the extent of any true creative input by AI was also debatable, the output relying heavily on the human input, but as AI continues to develop, the “creative” output from AI has developed notably. While human intervention is still required at some stage, it appears that AI is becoming more creative in its own right and it’s not unreasonable to ask where does one draw the line? What is the difference between the apprentice being taught the basics of light and shade or perspective by the master in his studio, and a developer creating AI programmes in a similar fashion?

However, the issue of legal personality still remains unresolved. AI cannot enforce its IP rights; it can’t grant a licence; and it cannot sue or be sued. If there has to be a human behind the AI, who will that be - the developer of the AI or the end user who has used the AI to create their artwork?

Many of these questions remain unanswered, but the push for answers to these questions is steadily gaining momentum. In February 2023, the Supreme Court considered a related issue in an appeal by Stephen Thaler against the Comptroller General of Patents. The case concerned the rejection of patent applications made by Dr Thaler where the inventor named on the application was an AI programme. While an individual or corporate entity can own and apply for a patent, the individual behind the patent must be detailed on the application as the inventor. For example, an employer may apply for a patent, but must detail the employee who created the invention as the inventor. Dr Thaler applied for the patent, but detailed “DABUS”, an AI programme, as the inventor.

The court’s decision at first instance included detailed consideration of the process for submitting a patent application and the requirement to disclose an inventor (whether human or not). The issues before Supreme Court are whether the Patents Act 1977 requires a person to be named as the inventor in all cases, including where the invention was created by AI: does the Act provide for the grant of a patent without a named inventor? and, in the case of an invention created by AI, is the owner, creator and user of that AI machine entitled to the grant of a patent? The Court’s decision on the third issue, in particular, may provide some further insight into how the law will evolve to address AI generated creations.

As AI continues to become more advanced, no doubt the creativity of AI, independent of human input, will continue to increase, strengthening the argument for autonomous AI authorship of IP. How the issue of legal personality will be addressed remains to be seen. If AI develops awareness to a point where it can truly think and act for itself, we’ll no doubt have bigger problems to contend with.

Lynn Richmond, Partner & Accredited Specialist in Intellectual Property: lyr@bto.co.uk / 0131 222 2934