Since generative AI entered the mainstream nearly 2 years ago with the debut of ChatGPT, it has quickly been integrated into many of our daily interactions.
Regardless of the engagement you’ve had or plan to have with generative AI systems in your professional or personal lives, or the level of awareness you have regarding your interactions, if you trust the news you read, generative AI has raised just as many concerns and fears as it has solved problems. While the fears and problems range from sci-fi questions of definitions of humanity, consciousness, and creativity[1] to very practical, concrete questions of job replacement and implementation costs, and everything in between, many of these “problems” are what we as lawyers refer to as “issues” and what we are trained to address and reflect upon. And while it is tempting to address some of the more philosophical issues here (I am a trained bioethicist, and have been interested in questions of consciousness, cognitive enhancement and ethical life prolongation and termination for over a decade now), despite their importance in the framing of this conversation, those questions will be set aside for the time being.
Perhaps second only to these existential questions of what it means to be human, to be conscious, to have rights, to have a self, the generative AI outbreak has raised interesting and complex intellectual property (IP) legal issues. Like all great innovation, generative AI has pushed the boundaries of what we formerly accepted as mainstream and possible, and it has left the selvaged edges current of the law tearing at the seams with a shape ill-suited to its new form.
As legislators, governments, politicians, lawyers, lobbyists, industry and basement-dwelling software developers (the masses) scramble to retrofit the legal principles to this nearly-ubiquitous technology, business moves forward leaving a trail of litigation, governing bodies of various countries drafting to-be-deciphered acts and bills, and plenty of opinions in its wake. To further complexify matters, IP law covers a variety of legally-created rights, each of which is jurisdictional. And while in the recent past, due largely to globalization, there have been efforts to harmonize the laws, intellectual property, like so many areas of the law, is deeply steeped in the culture and history of the places from which they originate, reflecting and carrying elements of the values of the jurisdictions over which they govern. And so, even with the rise of multinational technology companies conducting business across the globe and the ease of boarding a flight to take the ever-important in-person meeting with foreign associates, IP treatment of generative AI issues will need to be decided globally, with the potential for variation across even seemingly similar cultures.
The aim is to provide in this forthcoming series is a bit of a landscape analysis, a “lay of the land” of the key signposts from the perspective of an IP attorney. The law is being tested and stretched at various points, and legislative, regulatory and advisory bodies are already beginning to frame their views and point to potential future directions. Admittedly, it will be heavily US skewed, with an EU/UK slant as I am trained and practiced in the US and now currently living and practicing in Copenhagen, however, I hope you will see some themes emerge that delve to the core of the human spirit and our values, which are often much more similar than we may think.
The scope and timing of this series is intentional. We present it with the hope that it will provide enough detail and nuance to allow both laypersons and skilled practitioners to develop a sense of the key issues at this point in time. Thus, it is providing a foundation for growth and development as these issues will no doubt complexify before they simplify.
[1] And, for example, leading New York Times articles to dredge up foundational US IP case law, and, for example, quote Supreme Court justice William O. Douglas in his requirement for a “flash of creative genius” in the decision in Cuno Corp. v. Automatic Devices Corp. (314 U.S. 84) (“Can AI Invent?” 15 July 2023. https://www.nytimes.com/2023/07/15/technology/ai-inventor-patents.html).
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