Deep fakes, inventorship and ethics – WIPO revised issues paper on Artificial Intelligence

One thing is clear about artificial intelligence (AI) and intellectual property (IP) at the moment: there are more questions than answers. Who should be author? Who is responsible for a work’s liability? What about moral rights? Is a computer programme capable of making an ‘inventive step’ or forming an ‘intellectual creation’ normally reserved for humans? And for those Matrix fans – should we let machines make decisions for us, lest we become seen as the planet’s true virus?

In September 2019, the World Intellectual Property Organisation (WIPO) launched a much-needed conversation on IP and AI, and consulted with member state representatives on the potential impact of AI on IP. Over the course of the consultation, WIPO received more than 250 responses from a wide range of global stakeholders.

The fruit of its labour was published on 21 May 2020 and can be found here. The ‘Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence’ amends WIPO’s previously issued ‘Draft Issues Paper on Intellectual Property Policy and Artificial Intelligence’ (found here) (Issues Paper).

We do not intend to undertake a detailed summary of the Issues Paper here, but wanted to note a few topics raised:

• Previously, WIPO had not defined the concept of AI, however, after numerous submissions commented on the lack of definition, the Issues Paper has now defined AI as “a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence, with limited or no human intervention”. There is also clarity surrounding the difference between the terms AI-generated (meaning AI output without human intervention) and AI-assisted (meaning output with material human intervention or direction).
• One of the most hotly debated topics with AI is inventorship and ownership, which applies across all IP rights: Should the law require that a human being be named as the inventor or should the law permit an AI application to be named as the inventor? What ramifications would the question of inventorship and ownership have on related issues, such as, infringement, liability and dispute resolution?
• The controversial issues surrounding deep fakes (technology that can recreate the appearance and voice of a person so accurately, it is near impossible to tell that the video is fake): If deep fakes benefit from copyright, should there be a system of equitable remuneration for persons whose likenesses and “performances” are used in a deep fake?
• AI’s complex reliance on data and the layered nature of AI raised particularly complicated issues on data use and IP rights: Are current IP rights, privacy laws, unfair competition laws and similar protection regimes, contractual arrangements and technological measures sufficient to protect data or should IP policy consider the creation of new rights in relation to data?
• The importance of AI in the everyday world leads to issues of access and free use: Should data and AI applications be protectable by trade secrets or is there a social or ethical interest to override existing trade secret protection?
• Ethics and AI must go hand in hand, some argue that AI is the only way to guarantee impartiality, but as numerous experiments have shown, an AI system is only as ‘good’ as the data it is built upon. As such, can we (or should we) let AI make our decisions? Should AI be allowed for decisions in the prosecution of IP applications? If so, which types of decisions can be determined by AI- registration, appeals, invalidation or revocation?

The Issues Paper is an excellent first step in picking apart the issues with AI and IP and makes for thought- provoking reading. However, it is not just AI in the IP sphere where conversations on AI are being had. The World Economic Forum (WEF) has been focusing on AI and how to manage its impact globally as it believes it is a key driver of the fourth industrial revolution.

WEF advocates a soft law approach to regulation, highlighting the difficulty of drafting legislation to encapsulate AI and its potential variances. As such, WEF recommends using internationally recognised standards and guidelines rather than black letter law.

Certainly, greater understanding and uptake is needed for the world at large so that the full potential of AI can be realised. However, AI regulation and development must be able to ensure equity, privacy, transparency, accountability and must be able to manage the ethical social impact.

Although of interest to all companies, we recommend that those in the healthcare and life sciences sector, the automotive sector and those in the media sector pay close attention to how IP and AI will interact. AI has permeated the world almost imperceptibly; most people see AI and think ‘robot’ but AI is already used in chat forums, plane ticket prices and automated HR decisions. Further, all of the 10 so-called ‘Big Pharma companies’ (namely Novartis, Roche, Pfizer, Merck, AstraZeneca, GlaxoSmithKline, Sanofi, Abbvie, Bristol-Myers Squibb and Johnson & Johnson) have either expressly collaborated with or acquired Artificial Intelligence technologies to take advantage of the opportunities AI brings to the table.

Watch this space.

By Sunny Kumar and Georgina Rigg