I. CAN THE AI GENERATED CONTENT BE PROTECTED BY IP RIGHTS AND WHO CAN CLAIM OWNERSHIP?
AI systems can generate a variety of works that are, in theory, eligible for protection by IP rights, such as texts (copyright), images (copyright, design rights or trade mark rights), software codes (copyright on computer programs), etc.
But who can claim ownership of such IP rights? Four possible owners can be identified:
- AI system: AI systems cannot claim IP protection on the AI generated content, as they do not have the legal personality to own (intangible) property IP rights. IP rights are thus in principle only attributable to natural and legal persons.
- User: Whether or not the user can claim IP rights on the AI generated content among others depends on the creative process expressed by the user. For example, if the user does not modify AI generated content with its own creative and free choices, it is difficult to argue creation and ownership of copyright. Irrespective of the choices made by the user, the user could file the AI generated content as a trade mark, design or patent. In either case, attention must be paid to the AI systems’ disclaimer that AI generated content may not be “uniqueâ€, possibly triggering registration refusals, IP infringement claims (see question 2) and IP ownership discussions.
- Provider of the AI system: The same principles as the user apply to the provider of the AI system. To avoid any discussions with the user as to IP (right) ownership, OpenAI for example transfers to the user all rights, title and interest, if any, in the AI generated content.
- Owner original data: see question 2.
