Artificial intelligence (AI) is the new “thing”. Many people have found programs such as ChatGPT to be a blessing. According to ChatGPT, AI “refers to the simulation of human intelligence in machines that are programmed to think, learn, and problem-solve in a manner similar to humans. AI involves the development of computer systems or algorithms that can perform tasks that typically require human intelligence, such as speech recognition, visual perception, decision-making, and language understanding.” We hear of parents asking ChatGPT to assist with their children’s homework as well as of lawyers using ChatGPT to write their submissions. Questions are being raised as to whether AI will replace our jobs in the near future.

How does AI work?

Simplistically, huge amounts of data are used to train AI to identify the patterns in it, so as to make predictions and solve problems. Generative artificial intelligence (which includes ChatGPT) involves using models and algorithms to generate new content. Generative AI is trained on “training data” which can include protected works such as images, literary works, songs, paintings and it learns the patterns in the training data which is used to create new content.

Intellectual property issues

While AI is exciting and innovative, the use of AI can create intellectual property (IP) issues.

Infringement of copyright

There is the potential for copyright infringement. In the US case of Andersen v Stability AI et al, three copyright owners/artists filed a claim against various generative AI platforms, on the basis that the AI platforms utilised their original works without license to train their AI in their styles. It is being argued that users are now able to generate content that may be too similar to and insufficiently transformative from their original works. These would be considered unauthorised derivative works. If the court finds that the AI’s works are unauthorised and derivative, penalties for infringement could be applied.

Getty Images is also suing AI art generator Stable Diffusion, alleging Stable Diffusion misused its photos by violating copyright and trademark rights, to train its AI. In the US case of Getty Images (US) Inc v Stability AI Inc, US District Court for the District of Delaware, No. 1:23-cv-00135, Getty Images has asked the court to order Stability Diffusion to stop using its pictures and has requested damages which includes profit arising from the alleged infringement.

Who owns the IP for AI-generated works?

AI can generate new works. But the question of who will own the works is not yet definitively answered in many jurisdictions. One side of the argument is that the machine/computer has generated the work, and the other side is that there is some human element in the creation of the work. So, who should own the work; the AI platform, the owner of the AI, the developer, or the operator?

The US Copyright Office has suggested that there is no copyright for any work that is not created by humans. Under the Jamaican Copyright Act, the author of a computer-generated literary, dramatic, musical or artistic work is the “person by whom the arrangements necessary for the creation of the work are undertaken”. “Person” is not defined. This is similar to the United Kingdom’s copyright laws. It has been stated that this approach is problematic, as copyrighted works must be “original” works, and there is a debate as to whether a computer can generate works that are truly original.

In relation to patents, generally the inventor is the owner of the patent.

Under the US Patent Act, an “inventor” is defined as “the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention”.

In the US case of Thaler v Vidal, two patent applications were filed by Stephen Thaler, who named an AI system as the inventor. The US Patent and Trademark Office advised Thaler that the applications were incomplete, as no human inventor was named. Thaler thereafter filed a complaint in a federal district court in Virginia. Through a series of rulings and appeals, it was confirmed that, while individual is not defined under the Patent Act, a previous Supreme Court decision stated that “individual” is ordinarily understood to be a human being. The Federal Circuit court in the US stated that in passing the Patent Act, “Congress has determined that only a natural person can be an inventor, so AI cannot be.”

Under the Jamaican Patents and Designs Act, an application for a patent can be made by any person claiming to be the inventor of the invention or any person or persons who, by virtue of any Jamaican law, foreign law, treaty or other international agreement, or the terms of any agreement entered into with the inventor before the making of the invention, is entitled to the property of the invention. Inventor is not defined under our Patents and Designs Act.

The European Union Intellectual Property Office has also confirmed that the legal concept of inventorship requires a human being to be the inventor.

The UK Intellectual Property Office (UKIPO) has recently released a guidance note relating to the examination of patent applications relating to AI-generated inventions. The UKIPO confirmed that patents can be granted for AI inventions, given they provide a technical contribution to the state of the art.

Use of AI-generated works

When a consumer, such as a company or individual, contracts with an AI generator to use content that could have been generated by AI, there are certain factors that they may wish to consider.

Does the content creator or AI generator possess the proper licence to use the protected works in the training of their AI?

Is the generated content sufficiently different from the protected works?

Who owns the newly generated content?

If a consumer, such as a company contracts with an advertising agency to use an AI-generated image in an advertisement that becomes the subject of an infringement claim, they may be liable to the owner of the original protected work. A consumer may wish to consider inserting a clause in the contract for services, whereby the advertising agency confirms that they have the proper licence for the use of any content that was used in the training of the AI platform. Additionally, the consumer can demand that the advertising agency indemnifies them against any copyright infringement claim.

AI developers must ensure that they have the requisite licences and/or that they have compensated IP owners.

IP owners will also have to be more vigilant in ensuring that their works are not used without their consent. In addition to monitoring the market to ensure that their works are not being infringed, the owners need to ensure that they have properly safeguarded their IP through documentation and registration.

Helen Liu is a Partner at Myers, Fletcher & Gordon, and is a member of the firm’s Commercial Department. Helen may be contacted via Helen.Liu@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.