Can the work created by artificial intelligence be protected? – Lexology

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The use of artificial intelligence systems in the cultural and technological field innovation has grown considerably, and will certainly continue to develop over the next few years.
In particular, nowadays, AI sees many areas of use, such as pharmaceutical research through the automation of the research process, the health sector where medical devices use predictive algorithms, or journalism, through the automated distribution of content.
The dissemination of AI technology is thus an important developing structure that is attracting both private and public investment, including funds allocated by the PNRR under Mission 4 “Education and Research”.
However, this system continues to raise many doubts regarding the possible forms of protection identified by the legal system, especially from the point of view of the protection provided by intellectual property rights.
In the previous article “Artificial Intelligence and Intellectual Property: which protections for the work that consists of an AI?”, we have looked at the forms of protection granted to a creation consisting of an AI, in this article, on the contrary, we shall analyze the possible protection provided for a work realized autonomously by the AI.
Intellectual property in AI
When we talk about works created by AI, we must distinguish between two hypotheses:
1. Human creations made with the help of AI
In this case, the AI acts as an aid to a natural person in the creative process and will be protectable under Italian copyright law (Law no. 633 of 22 April 1941).
Specifically, if the requirements of the abovementioned legislation are observed, the natural person who has created a work with the assistance of an IA will be granted the relevant moral rights to the authorship of the work and patrimonial rights.
According to the European Commission’s 2020 report entitled “Trends and Developments in Artificial Intelligence” a person who has created an AI-assisted artifact will be able to consider it work and thus benefit from copyright protection if four requirements are satisfied:
2. AI autonomously generated creations
When we talk about creations made by artificial intelligence, we are referring to cases where the AI learns and elaborates the work autonomously, through the machine learning method based on inputs from a physical person and assimilating information from the surrounding environment.
We, therefore, look at cases where the human contribution is absent, or in any case, very limited and which, therefore, constitute the result of an intellectual effort of the AI.
From the point of view of the protection granted to these works, this raises many issues which can hardly be resolved straightforwardly because of the regulatory gaps in this sector.
In particular, the Italian copyright protection granted to the IA as the creator of work would seem to be excluded under the definitions in Article 2580 of the Italian Civil Code and Article 23 of the Italian copyright law, which identify an 'author' as a natural person with legal capacity.
However, from a patent perspective, it is relevant to mention a recent case decided on 21 December 2021 by the Legal Board of Appeal – J 8/20 and J 9/20, more commonly known as the DABUS case.
Specifically, the Court confirmed previous decisions taken by the European Patent Office (EPO), rejecting patent applications in which the DABUS artificial intelligence system was identified as the only inventor of the creations contained in the application, on the basis that the AI could not be identified as a rights holder.
Are works created by an AI therefore deserving protection?
Let us approach the question from a comparative perspective:
What prospects?
There are many possible future regulatory perspectives.
Among these, there is certainly the possibility of maintaining a more restrictive and continuous approach than the current European guidelines, and consequently of denying any form of protection to works created by artificial intelligence. This provision could instead be countered by a greater awareness of the potential of systems created by AI, thus extending copyright or patent protection to them.
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