AI and intellectual property: who owns the rights?

Generative AI tools have exploded in popularity recently – but who owns the output?

Can AI own copyright?

It seems unlikely that AI can own copyright in the US or EU. An interesting demonstration of this came in 2014, when British photographer David J Slater published a selfie taken on his camera by a macaque. This led to questions and lawsuits over ownership. In response to this issue, the United States Copyright Office updated its guidance to clarify there must be a human creator and US judges ruled similarly.

It is likely this would be the outcome in the EU too as it has no express provisions dealing with this situation. In contrast, the UK has a different approach. There are special provisions in UK legislation which allow for copyright to exist in computer-generated works. These are ones “generated by computer in circumstances such that there is no human author of the work”. In that scenario, the author is the person who undertakes the necessary arrangements for the creation of the work. But who is that? The creator of the AI tool? Or the user who inserted the prompts leading to the output? The terms between the AI provider and user will be key here.

In the meantime, AI tool providers are facing a plethora of lawsuits over their output including from famous authors, media companies and rights-collecting societies. They allege the AI tools are being trained using their copyrighted works. Some cases rumble on. However, some media and rights owners have reached partnership arrangements with AI tool providers allowing them access to their content.

AI can’t own patents

The position is more consistent when it comes to patents.

Dr Stephen Thaler created an AI system named DABUS. He filed two patent applications naming DABUS as the inventor of a food container and a device to attract attention in an emergency.

The UK Supreme Court ruled in 2023 that an inventor must be a natural person. This excludes DABUS as a machine. It also said Dr Thaler was not entitled to claim the patents merely because he owned DABUS. It said the UK Intellectual Property Office had been correct to reject these applications and dismissed Dr Thaler’s appeal. So, even if you make the arrangements necessary to create the AI tool or to produce the output, it is not patentable. This contrasts with the position under UK copyright law.

Dr Thaler also filed patent applications involving DABUS in other jurisdictions. These failed at the US Patent and Trademark Office (PDF), the European Patent Office and Australia. All agreed with the UK’s position that only natural persons can be inventors.

Interestingly, South Africa took a different approach and granted a patent naming DABUS as the inventor. This made South Africa the first country to do so.

Where is this going?

If you buy an AI tool to undertake certain tasks and generate certain content or inventions, it is important to identify the owner. The owner will usually be the person who can make money from the output.

Outside the UK, the tool itself can’t own copyright or patents. The creator of the tool can’t own them either unless they had direct involvement in the creation of the output and not just creating the tool itself.

If the user didn’t have sufficient input to its creation, the user probably won’t own any rights either. This suggests such content and inventions will fall into the public domain, free for all to use. Also, if other users enter similar prompts into the AI tool, they will likely get a similar output. Competitors might end up competing on very similar offerings as a result of using the same AI tool.

Ownership raises liability issues too. What happens if the output generated by AI infringes intellectual property rights? Or it causes someone to lose money or to injure someone? Who is to blame? Typically, this will be the creator or owner of the rights: the user or AI provider. But if no rights arise, maybe nobody is liable?

What should you do?

There are a number of steps you can take to reduce your exposure to risk.

1. Ensure a natural person is involved in the prompts or inputs.
2. Check terms of use for the AI tool to identify who owns the output. Standard terms of use might default to the AI provider as the owner.
3. Check the output to ensure you’re happy with it and, where feasible, get a human to adjust it to fit your needs.
4. Check the output isn’t similar to other content or inventions such that it infringes IP.
5. Be aware that your competitors using the same tools with similar prompts might have similar outputs to yours.
6. Watch for future legal developments in this space as ownership of AI generated content and inventions will become more hotly contested.