IP Considerations for AI-Generated Content: Copyrights and Beyond

  • February 12, 2024

By: Thomas P. McNulty


In Part 4 of L&A’s Intellectual Property Year-in-Review video series, counsel Thomas P. McNulty delves into the vast and rapidly changing landscape of artificial intelligence (AI) and the related IP concerns, including copyright challenges, patents and inventorship, and trade secret protection.

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The rise of generative AI programs like DALL-E 2, Midjourney, and ChatGPT has led to challenges in registering copyrights and patents for works created by or with these programs. Notably, the United States Copyright Office and the U.S. Patent and Trademark Office have resisted granting registrations and patents, citing the requirement of human authorship and inventorship, a criterion not met by fully AI-generated works.

The cases discussed underscore the need for a nuanced approach to copyright protection and other intellectual property considerations in the realm of AI-generated content.

Guidelines for Copyright Registration of AI-Generated Content:

In response to these challenges, the U.S. Copyright Office has provided guidelines for submitting applications that include AI-generated content. They emphasize the importance of identifying human authors, describing their contributions, and distinguishing between human and non-human elements. They note that copyright protection may exist for works that include AI-generated material, provided the human-contributed material standing alone rises to the level of protectability, although any registration will be required to disclaim the solely-AI-generated content. These guidelines seek to address the evolving landscape of AI-generated creativity within the existing framework of copyright law.

A Question of Infringement:

The legal landscape also grapples with issues of copyright infringement related to AI’s data-scraping activities for training purposes. AI companies argue fair use, claiming transformative work and non-competition with the original content. Legal cases involving data scraping from the legal research platform Westlaw and large publications like The New York Times highlight the complexities in defining fair use within the context of AI technology.

Patent Challenges with AI:

Beyond copyright concerns, the video delves into challenges within patent law, particularly the rejection of patent applications listing AI programs as inventors. Questions arise regarding the personhood of AI systems and their impact on patentability, reflecting a need for legal frameworks to adapt to the evolving nature of AI technology. Furthermore, AI’s access to vast amounts of data may also affect the calculus for filing Inter Partes Reviews (IPRs) to invalidate patents based on prior art.

Trade Secret Concerns with AI:

Trade secret law also comes into focus, highlighting the theoretical applicability of protection to AI-generated content. However, maintaining the secrecy of information fed into AI systems becomes a significant challenge, as demonstrated by a case involving Samsung’s use of ChatGPT resulting in the inadvertent loss of trade secret protection.

Future Developments and Awareness:

While AI presents opportunities for efficiency and innovation, it also brings forth intricate legal challenges, necessitating a careful approach to disclosure, protection, and compliance with evolving legal standards. The dynamic nature of AI and its impact on intellectual property rights underscore the need for continuous monitoring and adaptation to emerging legal developments in this rapidly evolving field.

The information provided in this video does not, and is not intended to, constitute legal advice; instead, all information, content, and materials are for general informational purposes only. Viewers should contact an attorney to obtain legal advice with respect to any particular legal matter.
© 2024 Lando & Anastasi, LLP


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