The rapid rise of generative AI (GenAI) tools has created new challenges for intellectual property (IP) law across the globe, and the UK is no exception. As these AI tools become more accessible, businesses, creators, and legal professionals are grappling with how existing laws apply to the unique outputs generated by AI, such as images, text, music, and even software code.
In the UK, IP law is evolving to keep pace with the advancements in AI, but there are still many grey areas. For instance, the UK Copyright, Designs and Patents Act 1988 was not written with AI in mind, and while there have been updates and guidance, more clarity is needed.
In this blog, we’ll summarise the current UK legal landscape around generative AI and intellectual property, and then compare it to developments in the United States. The US is generally more litigious and as a consequence legal opinion following court rulings on AI are better, but still not well known.
Understanding Generative AI
Generative AI tools work by processing vast amounts of data, identifying patterns, and using those patterns to create new outputs. These outputs can include anything from artwork and stories to music, code, or even new product designs.
However, this raises two key questions within the realm of intellectual property law:
- Who owns the rights to AI-generated content?
- Does using existing, protected works to train AI tools infringe on the original creators’ IP rights?
The UK’s Approach to AI and Copyright
In the UK, copyright law requires a “human author” for copyright protection. The Copyright, Designs and Patents Act 1988 defines authorship as requiring a person who creates the work. AI systems, by contrast, do not have legal personality, meaning that works created purely by AI are not currently considered eligible for copyright protection.
However, in cases where AI assists a human in creating a work, the human may still be recognised as the author, provided their contribution is significant. This aligns with ongoing discussions across the UK IP community, which is calling for clearer guidelines as AI-generated content becomes more prevalent.
Patent Law in the UK
When it comes to patents, the UK Intellectual Property Office (UKIPO) has taken a position similar to other jurisdictions. Inventions generated entirely by AI cannot currently be patented, as they require a human inventor. But inventions created with AI assistance may still qualify for patent protection, provided that a human makes a significant contribution to the inventive process.
In this regard, the UK follows international trends, with human involvement remaining a key criterion for IP protection.
Copyright Infringement Concerns
One of the pressing issues for generative AI is whether using copyrighted works as training data for AI tools constitutes copyright infringement. In the UK, it remains a contentious topic. Current UK copyright law does not yet provide definitive guidance on this, but the use of protected works to train AI systems without permission could lead to claims of infringement, particularly if the resulting outputs are substantially similar to the original works.
While no major UK court cases have set precedents in this area, the issue is gaining attention, and new rulings are anticipated as AI tools become more integrated into creative and commercial sectors.
Comparison with the United States
In the United States, the legal landscape surrounding generative AI is similarly uncertain but evolving. Here’s a summary of the current situation:
Protection & Ownership
In the U.S., courts have already begun to issue rulings on whether AI-generated outputs can be copyrighted. In August 2023, a U.S. court reaffirmed that a generative AI output is not copyrightable unless there has been sufficient human contribution. The U.S. Copyright Office echoed this, stating that the AI-generated portions of a work are not eligible for copyright protection, leaving such works largely unprotected.
On the patent front, the U.S. Patent and Trade mark Office (USPTO) allows AI-assisted inventions to be patented, but like the UK, it requires that a human inventor be significantly involved in developing the invention.
Infringement
Several notable copyright infringement cases are making their way through U.S. courts. These cases focus on whether using copyrighted material to train AI constitutes infringement. Some rulings, such as in Kadrey v. Meta Platforms, Inc., suggest that using copyrighted works to train AI tools alone does not necessarily lead to copyright infringement.
However, more guidance is expected as the courts continue to grapple with these complex issues.
Recent Government Actions
In October 2023, President Biden signed an Executive Order aimed at guiding responsible AI development. This includes mandates for the U.S. Copyright Office and the USPTO to issue further guidance on AI-related IP issues. Similarly, the UK government is also expected to address AI through forthcoming legislation and guidance as the technology continues to advance.
What UK Businesses Need to Know
For UK businesses developing or using generative AI tools, it’s crucial to stay informed about these evolving legal issues. Intellectual property law will continue to adapt as courts and lawmakers provide more clarity on how AI fits into existing frameworks. In the meantime, businesses should be cautious when using copyrighted materials to train AI and should seek expert advice on how to protect AI-assisted creations.
At National Business Register, we can help guide you through the complexities of intellectual property law and help protect your business and your innovations by consulting with our IP experts. Contact us by emailing info@nbrg.co.uk or calling 0800 069 9090.
