Artificial Intelligence and evolving issues under US copyright and patent law

Abstract

The proliferation of AI tools in the arts, commercial design industries, and other endeavours has raised core questions regarding who or what actually supplied the alleged creative or inventive elements, if any, to the AI system’s output. In both US copyright and patent law the question focuses on a case-by-case analysis as to how much of the final product evidences human ‘authorship’ or invention. Also, creativity as well as infringement, can be located in various phases of the AI system’s creation, ingestion of training materials, management, and operation – including its output, whether affected prior to the output or after it. Issues such as liability for selecting ingestion materials or target data, as well as the potential inadvertent triggering of patent law’s bar date through use of specific AI systems, have also come to the forefront of AI’s potential to secure, forfeit, or impact claimed proprietary rights in AI-assisted creative and inventive activities. Several alternative intellectual property and unfair competition approaches that can supplement or supplant copyright and patent law principles also come into play as users of AI seek to protect the products of their efforts.