Who owns an AI generated invention or work or art?

September 2021

The question captures our attention. In the midst of the fourth industrial revolution this is a question that was long overdue.

This revolution is marked by the emergence of new technologies including: robotics, artificial intelligence, cognitive technologies, nanotechnology and IoT (Internet of Things), among many others to come.

All of these technologies have a close relationship with the wider world of Intellectual Property as they have led to astonishing levels of innovation. This is as true as the fact that the vast majority of us have in our homes some device that works with one of these technologies that it has been idea and creation of a human mind.

But what happens when not only human beings are involved in these creations or inventions? Here it is important to distinguish two issues in relation to IP, copyright and patents.

One of the most powerful technologies in relation to these two areas of IP is Artificial Intelligence. Many experts have already begun to theorize about a new relationship between humans and machines that is more geared towards collaboration, rather than the prevalence of the former over the latter. This is on the basis that AI can be as valid a tool as a paintbrush when we create a work.

The use of artificial intelligence in the creative field raises many questions: legal issues such as authorship, responsible use of technology, or fundamentally social issues such as the definition of art and creativity.

Artist robots and crypto-art

Just a few months ago, a humanoid robot named Sophia sold a work in an auction in the USA for $689,000 (580,000€). This work of art, which is more like crypto-art, was solely and exclusively created by this “robot artist”.

How is it possible for a robot to have painted a work of art? The answer is as follows: before “Sophia” starts drawing, the robot uses its eye and chest cameras to take a photo of the subject or object in question. It then converts this photo into a sketch and translates it into lines in three-dimensional space. Finally, it makes the drawing on a special easel adapted to its calibrated arm. And that’s it, the work of art has been created.

In this case, not forgetting that we are talking about crypto-art so he work has been sold through an NFT. We remind you of our article on art and NFTs.

If we go to India, AI itself has recently been declared co-author of a work protected by copyright. In this case, it is a painting inspired by the art of Van Gogh and created (exclusively) by a computer programme called “RAGHAV”. This decision taken by the Standing Committee of the Indian Parliament can still be challenged, but it is already a fact that this is likely to start happening from now on.

Although it is true that there is still no law that recognises the authorship of a work by Artificial Intelligence, we are in the era of “machine learning“, which means that machines can come to make and execute their own decisions, through processes that can be assimilated to human thought.

What about patented inventions?

Machines cannot be considered inventors. This is the case with DABUS.

DABUS is a device and method for the autonomous bootstrapping of unified sentience. It is an AI system created by Dr. Stephen Thaler, an American inventor and AI expert. The creator defines it as “a machine programmed as a series of artificial neural networks that have been trained with general knowledge from different fields to independently create an invention”. It even goes so far as to recognize what already exists in the face of the novelty required for the invention, what we know as the state of the art in the IP world.

However, after its creator tried to have DABUS considered as the holder of a patent before the EPO and the UPSTO, both bodies considered that this characteristic (and right) only corresponds to a natural person. In principle, this is logical, since, a machine cannot be a subject of rights and obligations under the law. In any case, the possibility of a legal person being a subject of rights and obligations could be considered.

However, as the issue is increasingly being raised, the European Commission and other interest groups are considering the possibility of creating an ex novo regulation for this type of conflict that the fourth industrial revolution is bringing to our attention. We will see how things develop and will keep you posted.

Eduardo Zamora | Sara del Río