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Can AI be an inventor on a patent or author of a copyrighted work?

Author(s): Nathaniel Lipkus

Apr 27, 2023

Artificial intelligence (AI) proponents are testing the limits of today’s intellectual property laws. AI technologies, such as ChatGPT and DALL-E 2, have captured our collective imagination by generating impressive works of art and of authorship. Machine-generated inventions and works will only get more inventive and creative as time goes on. But does this mean that an AI – a machine – can be an inventor on a patent or author of a copyrighted work?

In the video below, Osler partner Nathaniel Lipkus outlines the implications of increasing recognition of AI-generated intellectual property on your business.

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Video transcript

NATHANIEL: Hi – I’m Nathaniel Lipkus, a partner in the Intellectual Property group at Osler in Toronto.

Artificial intelligence is having a moment. AI technologies like ChatGPT and DALL-E 2 have captured our collective imagination by generating impressive works of art and of authorship with the click of a button, and even inventing new and improved technologies.

But does this mean that an AI – a machine – can be an inventor on a patent or an author of a copyrighted work?

As of today, the answer appears to be No….but stay tuned. Patent and copyright laws are hundreds of years old, and the drafters of these laws probably never conceived of a future where machines would be as creative or inventive as humans.

But this hasn’t stopped AI proponents from testing the limits of today’s intellectual property laws. And the answer to this question will determine the winners and losers for generative AI.

One AI owner has filed patents around the world for inventions made by its AI. The patents were rejected, and the owner filed lawsuits challenging these rejections, arguing that an AI can be an inventor. One court in Australia even agreed, saying that the word “inventor” is simply an agent-noun, kind of like a “dishwasher”, and doesn’t need to refer to a human.

That decision though was overturned, with the appeals court finding that patents are for “persons”, and the entitlement to a patent is based on inventions arising from a person’s mind.

Authorities in the United Kingdom, United States and Europe have taken a similar view. A UK appeals court found that machines are legally incapable of being inventors – unlike humans, machines lack legal personality, cannot have rights, and are incapable of holding or transferring property, including patents. US and European authorities have followed suit.

But what about works of authorship, like the clearly novel creations that we see from generative AIs like DALL-E and ChatGPT? The answer for copyright is murkier.

Some countries have drawn a hard line, refusing copyright for machine-generated works. Others have accepted that AI-generated works can be copyrighted, and the author is the human who arranged for the AI’s creation of the work. The US Copyright Office recently denied copyright on AI-generated images in a graphic novel but preserved limited copyright protection for the writing and layout of the images.

Canada is still considering the matter, and it is looking like Canadian authorities probably won’t, based on current law, recognize AIs as authors entitled to copyright.

Here’s the issue:

Machine-generated inventions and works are not going away. More of them are being created by the second, and the machines making them will only get more inventive and creative.

Governments will need to decide whether to change laws to give AIs the same rights as humans, or to give AI creations lesser or no protection, no matter how inventive or creative they are.

In the meantime:

The best way to maintain eligibility for patent and copyright protection is to capture and emphasize human contribution wherever possible.

Proof of original and inventive human input should be recorded and retained.

 For technology that is entirely AI-driven, without human involvement, companies will need to make the hard decision whether to pursue patent protection or to keep the technology secret, at least until the law for AI-generated technology is clarified.

Trade secret protection may be preferred for AI-generated technology that is unlikely to be detected or copied by competitors.

Novel technologies make for novel legal questions. Our team – of human IP professionals – would be pleased to assist you with any questions you may have about the impact of intellectual property laws on your business.