Artificial Intelligence and Intellectual Property- a challenging path ahead for AI?

by | May 6, 2021


Written by Danielle Mercieca

As artificial intelligence (AI) is increasingly used in various industries, it is inevitable that it will cross the path of different intellectual property rights, most notably copyright and patents. The entire process from training an AI system to the end results of an AI-driven process engages with intellectual property- potentially creating issues with which the area of intellectual 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 reproduction, distribution, adaptation or displaying their work in public. However, where an AI is autonomously making use of these works, is the AI itself liable 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 data 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 solely for research purposes and a wider exception for data and text mining for temporary reproductions and extractions, which may be welcomed in the sphere of AI innovation. However, right-holders can decide 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 Inventions

Patent law is similarly struggling with inventions involving AI. The lack of transparency often associated with AI systems, particularly where machine 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 fundamental 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 inventions being considered within one of the subject-matter exclusions under patent law- that of ‘computer programmes’. This specific exclusion has been problematic before AI-related inventions came into the scene and it is likely that AI will challenge further this exclusion and its requirements. In the meantime, inventors of AI-related applications must rely on their wits and creativity when drafting their patent applications.

Artificial Intelligence

Copyright and Patent Ownership 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 patentable, 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 application for a patent may be filed by any natural person or legal entity- an AI is neither.  Yet, in most cases it is unlikely 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 Artificial 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 recognise advances in technology pave the way forward for a collaborative approach between technological innovation and law, thus providing an opportunity 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.


The entire process from training an AI system to the end results of an AI-driven process engages with intellectual property- potentially creating issues with which the area of intellectual property law appears to be struggling.


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