Artificial Intelligence and Intellectual Property: which protections for the work that consists of an AI?

The European Commission published a Coordinated Plan on AI in 2018, with the goal of establishing a European approach to AI (anthropocentric, sustainable, safe, inclusive, and dependable), encouraging national plans, and assuring EU funding.

The Commission is dedicated to fostering innovation in the development and deployment of AI technology in all industry sectors and across all Member States in order to maintain global competitiveness. As a result, the development of artificial intelligence systems represents a significant opportunity for growth and greater competitiveness in both Member States and the private sector, thereby improving company competitiveness. When talking about artificial intelligence, many questions arise.

There are two kinds of artificial intelligence. Weak AI is based on the use of programs by humans to carry out certain tasks and resolve problems, such as an online translator; Strong AI has reasoning and problem-solving abilities that are indistinguishable from human ones. In both scenarios, we’re dealing with software development, which is inextricably linked to the world of intellectual property protection.

The right to exploit the creations is granted to the creator or inventor of the work by intellectual property, which ensures suitable protection against improper use of the work by unauthorized parties. Intellectual property is differentiated into: Copyright, Industrial property, consisting of AI, result of an AI.

• Copyright: Protects literary and artistic works, and intangible goods such as databases and software;
• Industrial property: Protects invention/creation through trademarks and patents.

As a consequence of this distinction, it is important to understand what possible systems of protection apply to artificial intelligence.

We will analyze the possible protections provided for works:

• CONSISTING OF AI: Protection of inventions/works consisting of or based on AI technology.
• RESULT OF AN AI: Protection of the work/invention realized autonomously by AI systems.

We refer to software development when we talk about inventions made with the help of AI or based on AI technology. Is it true, however, that the creator of software as an AI is awarded rights? And, if so, what are your options? The Italian legislation distinguishes between two types of protection: copyright and patent protection.

Italian Copyright Law n. 633/1941, in article 1 paragraph 2, protects “computer programs” as literary works, thus guaranteeing to the author of the program that created it the relative:

• moral rights: non-transferable and consisting in the attribution of the right to the paternity of the work;
• patrimonial rights: transferable and allowing the right to the economic exploitation of the work.

Copyright is acknowledged without any formality and will last for the author’s whole life and up to 70 years after his death. The copyright law, on the other hand, exclusively covers software that is innovative and thus unique (art. 2 points 8). If the program has features of innovation in comparison to other pre-existing software and does not give a standard answer in the industry, it will be regarded original.

Patent protection

According to Article 45 paragraph 2 letter. b) of the Code of Industrial Property (Legislative Decree 10 February 2005, n.30) computer programs are not considered inventions and therefore they are not patentable. The European Patent Office, on the other hand, has recently modified its rules to include a section on the patentability of AI-related inventions, sometimes known as “computer-implemented inventions.” To be patentable, software must be included into an invention that meets the following standards set forth in Article 45(1) of the Code:

• Novelty: The invention must consist of something new, something that is not already part of the “state of the art”;
• Originality: The invention must be original and not easily deducible from what is already in the public domain;
• Industrial application: The invention must have an industrial, and not simply a commercial, purpose.

In addition, a patent may be granted when the AI:

• has a technical character, contributing to a solution to a technical problem;
• satisfies the requirements of clarity, conciseness, and sufficient description, and from the patent application, any expert in the field must be able to realize the invention.

This interpretation of the European Patent Convention allows the EPO (European Patent Office) to grant patents on artificial intelligence-based technologies in a variety of technology fields, including medical devices, automotive, media, and communication. Finally, the patent holder will receive industrial property rights to the innovation for a period of 20 years from the invention’s filing date.

(As cited in Lexology)

***Other Articles***

– You could see The trademark fee in EU and UK here.

– You could visit here to see Procedure of Trademark in European Union.

– You could visit here to check Required documents of filing trademark in European Union.

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