As predicted, the United States Patent and Trademark Office (“USPTO”) has now extended its inquiry on the impact of artificial intelligence (“AI”) technologies to copyright, trademark, and other intellectual property rights. Last month’s blog post on this topic explained that the USPTO had filed a Notice in the Federal Register seeking comments as to whether AI can be considered an inventor on a patent. This led us to wonder whether the same could be asked for trademarks and copyrights, and now that is exactly what the USPTO’s newest Notice covers.
Specifically, the USPTO seeks comments on how AI might impact these other types of intellectual property protection, including with respect to registration and liability issues, using thirteen enumerated questions set forth verbatim below:
1. Should a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, qualify as a work of authorship protectable under U.S. copyright law? Why or why not?
2. Assuming involvement by a natural person is or should be required, what kind of involvement would or should be sufficient so that the work qualifies for copyright protection? For example, should it be sufficient if a person (i) designed the AI algorithm or process that created the work; (ii) contributed to the design of the algorithm or process; (iii) chose data used by the algorithm for training or otherwise; (iv) caused the AI algorithm or process to be used to yield the work; or (v) engaged in some specific combination of the foregoing activities? Are there other contributions a person could make in a potentially copyrightable AI-generated work in order to be considered an “author”?
3. To the extent an AI algorithm or process learns its function(s) by ingesting large volumes of copyrighted material, does the existing statutory language (e.g., the fair use doctrine) and related case law adequately address the legality of making such use? Should authors be recognized for this type of use of their works? If so, how?
4. Are current laws for assigning liability for copyright infringement adequate to address a situation in which an AI process creates a work that infringes a copyrighted work?
5. Should an entity or entities other than a natural person, or company to which a natural person assigns a copyrighted work, be able to own the copyright on the AI work? For example: Should a company who trains the artificial intelligence process that creates the work be able to be an owner?
6. Are there other copyright issues that need to be addressed to promote the goals of copyright law in connection with the use of AI?
7. Would the use of AI in trademark searching impact the registrablity of trademarks? If so, how?
8. How, if at all, does AI impact trademark law? Is the existing statutory language in the Lanham Act adequate to address the use of AI in the marketplace?
9. How, if at all, does AI impact the need to protect databases and data sets? Are existing laws adequate to protect such data?
10. How, if at all, does AI impact trade secret law? Is the Defend Trade Secrets Act (DTSA), 18 U.S.C. 1836 et seq., adequate to address the use of AI in the marketplace?
11. Do any laws, policies, or practices need to change in order to ensure an appropriate balance between maintaining trade secrets on the one hand and obtaining patents, copyrights, or other forms of intellectual property protection related to AI on the other?
12. Are there any other AI-related issues pertinent to intellectual property rights (other than those related to patent rights) that the USPTO should examine?
13. Are there any relevant policies or practices from intellectual property agencies or legal systems in other countries that may help inform USPTO’s policies and practices regarding intellectual property rights (other than those related to patent rights)?
(See A Notice by the Patent and Trademark Office, October 30, 2019, available at https://www.federalregister.gov/documents/2019/10/30/2019-23638/request-for-comments-on-intellectual-property-protection-for-artificial-intelligence-innovation.)