Every once in a while, an intellectual property-related topic captures the attention of the mainstream media. About a decade ago, the popular press caught wind of the so-called “selfie monkey” dispute, which centered on whether copyright subsisted in a selfie taken by a macaque and, if so, who owned it (spoiler alert: it’s not the macaque). Now, news stories are circulating again about the owners of intellectual property allegedly created by someone or something other than a physical person: artificially intelligent machines.
Perhaps coined by Hollywood, the term “artificial intelligence” can conjure up images of generally intelligent machines capable of passing for humans in all sorts of circumstances. The reality is less impressive. The company is far from developing an AI that resembles Terminator or HAL 9000. Rather, task-specific AIs, like a camera app on a phone that identifies faces or computers that (try) to understand or to imitate natural language queries represent current technology.
Facial recognition and natural language processing are implemented using a type of AI known as a “neural network” which uses an architecture roughly mimicking a human brain to perform learning automatic: the ability of a computer to become more precise in the task(s) it is performing based on data without being explicitly programmed to do so. Most people who loosely refer to AI, especially in relation to human beings, are referring to machine learning done with neural networks.
Device for the Autonomous Bootstrapping of Unified Sentience (DABUS) is a task-specific AI composed of neural networks responsible for creating new inventions. According to Dr. Stephen Thaler, creator and owner of DABUS, DABUS invented a “fractal container” and a “neural flame”. Dr. Thaler filed a patent application for these inventions in several countries citing DABUS as the inventor. Although proceedings before the courts or administrative bodies are still ongoing at the time of writing, to date the Federal Court of Australia, the Court of Appeal of the United Kingdom, a District Court of United States and the European Patent Office have all held that an inventor must be a person.
An argument in favor of listing DABUS as an inventor is moral: whoever creates an invention simply has the right to be recognized as an inventor. DABUS, however, is something, not someone. As noted above, like all other AIs, DABUS is a task-specific AI that has narrow intelligence distinct from that possessed by humans. The day may come when an AI actually achieves general intelligence and sentience, in which case society will face more pressing issues than whether it should be listed as an inventor on patent applications.
Another argument is economic: if a patent cannot be granted to an AI inventor, then society risks giving up patent protection and, therefore, the economic incentive to develop, a vast range of beneficial inventions that could be created by AIs in the future. . This concern can be addressed by simply recognizing as the inventor the person who used the AI to create the invention, as opposed to the AI itself. It is the person, after all, who invests the time and money to source, train and use AI to create, who should be recognized.
Some countries already apply this type of copyright framework. UK law specifies that in computer-generated works, the author of a work is the person who arranged for the computer to create the work. Statutory reform of patents analogous to copyright would clarify the legal position of inventors like Dr. society has economic and moral obligations, as opposed to the creators themselves.
This article originally appeared on BarTalk, by the Canadian Bar Association, British Columbia Division.
Roch Ripley is a partner at Gowling WLG (Canada) LLP and heads the intellectual property department of its Vancouver office.