Artificial intellegence – a sensitive challenge for intellectual property law

Autor: Igor S

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Artificial intelligence is increasingly becoming an integral part of our daily lives. Often we do not even notice when, how and where we get in touch with it and how it affects our daily routine, our plans and even our behaviour. It is a matter of fact that an abrupt disapperance of any artificial intelligence would throw back our society by decades and make dozens of our daily tasks next to impossible. Today, artificial intelligence has gone even so far that machines are able to create relevant data and/or information by themselves with little or no human input at all. Today I shall be happy to explain to you briefly, which challenges intellectual property law, particularly copyright law, faces in terms of the rapidly developing artificial intelligence.

Protectability of intellectual creations and/or technical inventions created by AI

Generally, both (German) copyright law and patent law presume that an intellectual creation or a technical invention shall be created by a human, i.e. the level of creativity of an intellectual creation or the inventive step of a technical invention are generally measured on the basis of human abilities. Thus, patents are granted in order to honor an inventor for his efforts and to stimulate technical progress.
The (German) copyright law has ist roots in the 19th century and, as well, honors human-made intellectual creations of various sorts of art. The question now is: Are intellectual creations and technical inventions created by AI subject of protection by the (German) copyright law/patent law? Today, let us talk about AI and copyright law. If you are interested in AI and patent law as well, please, feel free to contact me.

Protectability of intellectual creations by AI under § 2 UrhG (German Copyright Law)

Basically, § 2 UrhG (German Copyright Law) solely protects intellectual creations created by a human, i.e. human creativity is required to obtain protection based on § 2 II UrhG (German Copyright Law). Of course, it is well-known that certain artworks, such as songs and motion pictures are created by using technical and computer-implemented aides. With respect to that, in order to obtain protection under § 2 UrhG (German Copyright Law), the impact of the human creator shall be vital to the actual result of the creation, i.e. the creation will not be protectable under § 2 UrhG (German Copyright Law) if it is a sole generation of – let’s say music notes or pictures – created by an AI without a significant human input. To sum it up: § 2 UrhG (German Copyright Law) only grants protection for AI-involved intellectual creations/artworks – with a major human input.

Protectability of intellectual creations by AI in other jurisdictions

The British Copyright, Designs and Patent Act 1988, for example, does grant protection to computer-generated creations without any human input. The British CDPA 1988 is substantially different from the German Patent Law (UrhG) and does not distinguish between the actual creator copyright and ancillary copyright. Thus, a copyright to artworks, such as music or visual art works is granted to the one, who „made the arrangements for creation of the artwork“, which does not necessarily has to be the one, who, for example, actually created the musical composition, but rather the record company, which „made the arragnements“, i.e. enabled the creator to create the music.

Protectability under the „database producer right“ of §87 UrhG (German Copyright Law)

According to § 87a I 1 UrhG (German copyright law) „collections of works, data or other independent elements shall be protected if the data is arranged in a methodic way by using electronic aides – and – its creation, verification or presentation requires substantial investments“.
Now the question is: which „investments“ related to AI are eligible under § 87 UrhG (German copyright law)? Investments into creation, verification or presentation of the database content may be subject to protection under German copyright law. Same may apply to software development efforts and operation of a database. These, however, may only apply if the creator aims to produce an AI database for particular/specific purposes, not an AI database for a broad scope of purposes. Databases with implementation of AI may not only analyse data, but also generate results consisting of several „independent files“ which are generally subject to protection by ancillary copyright. However, the results are only useful/valuable when these „independent files“ are combined. For example, a database gathers data of various independent ingredients – which may be subject to ancillary copyright – to create a recipe for a new kind of beer. In such a case the „independent files“ may be excluded from protection by ancillary copyright. Be aware that the „database producer right“ does not protect the data generated in the database, but solely the database itself. Thus, the „database producer right“ does not generally ban competitors from using the data generated by the AI implemented database.
Another important issue is: who shall be the proprietor of databases generated by AI? In this case – usually – it ist he one who bears the economic and organizational risks of the production and functionality of the database.

Conclusion and prospects

As explained above, § 2 UrhG (German copyright law) offers little protection for AI generated intellectual creations, the database producer right according to § 87 UrhG (German copyright law) as well offers partial protection of AI implemented databases. Due to the ongoing and rapid progress in terms of AI-based intellectual creations, there are lots of public discussions on whether AI-based intellectual creations shall enjoy even greater legal protection under the intellectual property laws and its effect on human efforts, especially with regard to copyright protection of human works, such as music and visual productions. For example, an experiment at the Rutgers University in 2017 has shown that paintings created by AI were perceived being even more sophisticated than the one created by humans. You may find the link to the experiment here:
„AI- Generated Art Now Looks More Human Than Work at Art Basel, Study Says | artnet News“ .

What we definetly see is that AI-influence in terms of intellectual creations and technical inventions is growing rapidly, and, with it, both copyright law and patent/design law will have no choice, but to evolve and adapt and will have to find a balance between the classic purpose of stimulating and honoring human efforts and developing ways in protecting AI-based creations/inventions.

Über den Autor

Unser Autor und PATINS-Student Igor S. hat diesen Beitrag eigenständig recherchiert und formuliert um Sein erlerntes PATINS-Wissen auf einen echten Fall anzuwenden. Weiter so!

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