In our previous post on AI (artificial intelligence) we presented examples of its practical application and we also tried to answer the question what the artificial intelligence actually is. Today we will focus on the issue of legal protection of the solutions which use artificial intelligence. We will answer the question which aspects related to intellectual property can be protected and what strategy should be chosen in order to effectively protect AI-related products.
The first challenge we face is the legal protection of technologies related to the practical application of AI. As a rule, technical solutions can be protected as a patented invention or as a trade secret. Software, on the other hand, is protected by copyright. According to the Polish law, an invention is a technical solution which is new, has an inventive step and is suitable for industrial application. Polish patent law, similarly to the other European legislations, explicitly excludes the possibility of patent protection of computer programs. This exclusion applies to the solutions, the essence of which is fully implemented in a computer program. However, the protection of computer-implemented solutions is not excluded, as long as only part of the essence of the invention is implemented with the use of a computer. Determining the technical features of a given solution will be of key importance for the assessment of its patentability. The method of operation (e.g. driving, braking) of an autonomous vehicle that only partially uses software could therefore be covered by a patent. In the practice of the European Patent Office, a gradual liberalization in terms of the requirement of the technical nature of the invention can be noticed. This practice is also noted by Polish administrative courts, which indicate the need of harmonization of the interpretation of national regulations with the provisions of the European Patent Convention and the TRIPS Agreement. It is therefore assumed that only computer programs which have no further technical effect beyond the normal physical interaction between the program and the computer cannot be patented.
Solutions using the artificial intelligence, the effect of which is limited to the digital world, e.g. tools for processing and analyzing speech or text, will not be patentable. The source code behind these solutions is protected by copyright. Copyright protection does not require registration and is effective from the moment the work is fixed. The protection of computer programs in Poland is regulated both by the general provisions of the copyright law and by the provisions specific to software.
Opting out of the patent protection can also be a deliberate choice of an inventor who prefers to keep their ideas confidential and protect them as trade secrets instead. This applies in particular to such solutions that cannot be easily copied by reverse engineering alone without access to the inventor’s know-how. Due to the limitation of patent protection to 20 years period, it may be more advantageous to keep such invention secret, as this will allow the inventor to have long-lasting exclusivity for the use of this solution.
Another challenge is the protection of intangible goods created with the use of artificial intelligence. There are more and more projects using AI to create works, such as the short story that imitates the literary style of Olga Tokarczuk, mentioned in the previous post, or The Next Rembrant project, which created images that imitate the style of the famous Dutch painter. Who should be considered the author of such works? Who can derive economic benefits from them and decide on their exploitation? Will it be the developer of the software, the person who pressed the button to start the creative process, or the machine itself? Unfortunately, Polish copyright law does not provide satisfactory answers to all these questions. There is no doubt that, in the absence of any other specific regulations, the copyright to a work belongs to its creator and this can only be a human and not artificial intelligence which does not have legal personality. Co-authorship of the work by the creator of the software and the person using it should also be excluded, as there is no cooperation between them in the creative process. However, it is doubtful whether, in the light of the current regulations, it would be possible to attribute the work to any of these persons alone, or whether the work, being devoid of its creator, would fall into the public domain. One of the possible solutions may be the adoption of the concept of computer-generated works, which was first introduced into British legislation. According to it, the creator of a computer-generated work should be considered to be the person by whom the arrangements necessary for the creation of the work were undertaken.
The artificial intelligence can produce not only creative works, but also inventions. The concept of patent protection is much less related to the personality of the creator than is the case with the copyright (especially the European droit d’auteur). However, the applicant who wants to obtain a patent in the Polish Patent Office must (in case the applicant is not the creator themself) indicate in the application the creator of the invention and the applicant’s legal title to obtain a patent. Similar requirements exist in other countries. In April 2020, the United States Patents and Trademark Office issued a decision according to which the inventor must be a human, a natural person. Therefore, it was not possible to grant a patent as a result of an application that did not indicate who made the invention and named a device using artificial intelligence as the creator.
Summing up, it can be noted that the strategies of protection of the technologies using artificial intelligence do not differ significantly from the protection of technical solutions or computer programs based on traditional algorithms. What is completely new, however, is the issue of the protection of creative works or inventions created with the use of AI. In this area, unfortunately, the current legal regulations leave more questions than answers.