European Commission reckons with trends and developments in Artificial Intelligence: Challenges to the Intellectual Property Rights Framework

On November 25, 2020, the European Commission released a report titled “Trends and Developments in Artificial Intelligence. Challenges to the Intellectual Property Rights Framework” (accessible here – “Report”). The Report was the result of a call for tenders launched back in 2019 by the European Commission and aimed at analyzing Intellectual Property Rights (“IPRs”) issues related to works/inventions generated by Artificial Intelligence (“AI”) systems in various fields, in particular in the areas of pharmaceutical research, science, and media (more information available here).

Ultimately, the analysis was designed to assess whether the current European IPRs framework is fit-for-purpose for AI-generated works/inventions and, where appropriate, allowed the contractor to make recommendations regarding possible changes to IPRs legislation and/or practices (e.g., of patent offices).

The Report resulting from the one-year inquiry examines the state of the art of copyright and patent protection in Europe for AI-assisted output and in three priority domains: science, media, and pharmaceutical research. For the purposes of the Report, “AI-assisted outputs” include production or applications generated by or with the assistance of AI systems, tools, or techniques. As the state of the art demonstrates, the use of AI systems in the realms of culture, innovation, and science has grown spectacularly in recent years and will continue to do so. While AI systems have become increasingly sophisticated and autonomous – and will continue to do so – the Report nonetheless assumes that fully autonomous creation or invention by AI does not exist and will not exist for the foreseeable future, meaning it recognizes AI systems for the time being primarily as tools in the hands of human operators.

The Report concludes that the current state of the art in AI does not require or justify immediate substantive changes to copyright and patent law in Europe. The existing concepts of copyright and patent law are sufficiently abstract and flexible to meet the current challenges from AI.

Notwithstanding the above, the Report identifies specific avenues for future legal reform (if justified by empirical evidence) and offers recommendations for improvements to the application of existing rules (e.g., via guidelines), as well as highlighting the need to study the role of alternative IP regimes to protect AI-assisted outputs, such as trade secret protection, unfair competition, and contract law. With specific reference to European copyright law, the Report leads to – among others – the following conclusions and recommendations:

  • current EU copyright rules are generally sufficiently flexible to deal with the challenges posed by AI-assisted outputs;
  • the absence of (fully) harmonized rules of authorship and copyright ownership has led to divergent solutions in national law on the part of various Member States with regard to AI-assisted works, which might justify a harmonization initiative.

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