Issue link: https://maltatoday.uberflip.com/i/1378870
maltatoday | SUNDAY • 30 MAY 2021 14 COMMERCIAL AS artificial intelligence (AI) is increasingly used in various industries, it is inevitable that it will cross the path of differ- ent intellectual property rights, most notably copyright and pat- ents. The entire process from training an AI system to the end results of an AI-driven process engages with intellectual prop- erty- potentially creating issues with which the area of intellec- tual property law appears to be struggling. Copyright infringement by AI AI systems require vast amounts of training data and in certain instances data may involve the use of writings, images or databases subject to copyright. Copyright owners have exclusive rights in respect of their works including repro- duction, distribution, adapta- tion or displaying their work in public. However, where an AI is autonomously making use of these works, is the AI itself lia- ble for copyright infringement? Under copyright law, copyright in an original work can only be infringed by a 'person' who does or causes another person to do any of the acts controlled by copyright. Often, artificial intelligence methods involve data and text mining – a process where da- ta and text in digital form are analysed to generate patterns, trends and correlations. The EU Directive on Copyright provides a specific exception for uses of copyright works in data and text mining sole- ly for research purposes and a wider exception for data and text mining for temporary re- productions and extractions, which may be welcomed in the sphere of AI innovation. However, right-holders can de- cide to 'opt-out' of this wider exception and reserve the use of their copyright works for themselves- leaving AI right back where it started! Patents for AI-related inven- tions Patent law is similarly strug- gling with inventions involving AI. The lack of transparency often associated with AI sys- tems, particularly where ma- chine learning techniques are involved, creates a problem when disclosing how an AI invention works- one of the requirements for patentability under Patent law. It is funda- mental for a patent application to describe the workings of an invention so that an ordinary skilled person can perform that same invention. Another controversy is the possibility of AI-related inven- tions being considered within one of the subject-matter ex- clusions under patent law- that of 'computer programmes'. This specific exclusion has been problematic before AI-re- lated inventions came into the scene and it is likely that AI will challenge further this ex- clusion and its requirements. In the meantime, inventors of AI-related applications must rely on their wits and creativity when drafting their patent ap- plications. Copyright and patent owner- ship of creations by AI When artificial intelligence plays a role in the creation of an original literary, musical or artistic work or the creation of an invention that could be pa- tentable, doubts may arise on whether AI is to be considered the author or inventor. AI has not yet been accorded legal personhood and copyright and patent law remain bound to human authors and inventors. Copyright vests initially in the author of the work who is a natural person, whilst an ap- plication for a patent may be filed by any natural person or legal entity- an AI is neither. Yet, in most cases it is un- likely that a developer will be considered author or inventor where one would have simply provided the training data to the AI system- so how will AI ever achieve recognition for its 'work'? A long, winding road ahead The path ahead may be a challenging one for both Arti- ficial Intelligence innovation and Intellectual Property law. As part of its strategy, MITA is committed to making full use of emerging technologies such as AI to offer better services, and exceptions in law that rec- ognise advances in technology pave the way forward for a col- laborative approach between technological innovation and law, thus providing an oppor- tunity for MITA to leverage such innovative technologies with ease of mind. In truth, one small step for AI may also turn out to be one giant leap for Law and for the process of modernisation and digital transformation of the Public Administration. Artificial Intelligence and intellectual property: a challenging path ahead for AI? Mercieca Danielle