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IP and the Rise of AI

Westworld and WIPO


HBO has made some great shows, including Succession, Boardwalk Empire, Westworld, amongst many others. Westworldis a dystopian television series about a theme park, in which humans (Guests), provided with complete free will, enter a new social sphere (without rules and consequences) populated with machines (Hosts), which themselves begin to attain complete liberation from their programming and begin remembering what Guests have done to them.[1] Other than the interesting religious and philosophical issues this series raises, it consistently refers to “ownership of the intellectual property” and data derived from “human + machine world”. This should grab the attention of “legal beagles” around the World, especially considering the the World Intellectual Property Office’s (WIPO) Conversation on Intellectual Property (IP) and Artificial Intelligence (AI)[2].


The Intersection between AI and IP


With the growing relationship between processing power, artificial intelligence (AI) and machine learning (ML) as well as intellectual property (IP), WIPO has begun, as of May 2018, exploring policy for AI & IP[3]. In fact, WIPO has initiated conversations amongst Member States and their stakeholders in order to properly ascertain the influence that AI will have on IP[4]. The result of this discourse has already resulted in the emergence of an engaging dialogue on the subject matter.


Trademarks


Trademarks are one facet of intellectual property that will be affected by the continued development of AI. Trademarks, it be must recalled, serve to differentiate the sources of particular goods and/or services from those of others. The purpose of a trademark is to avoid confusion amongst consumers. WIPO has established that the manner in which AI will interact with trademarks must be studied in-depth. Furthermore, “the way that a consumer interacts with the online marketplace through AI may result in the presentation of only a limited number of brands to a consumer, or other alterations in the way that consumers make product selections”[5]. When examining the impact of AI on trademarks, the following questions, which include some pertaining to “registrability, infringement and unfair competition”, will undoubtedly arise:


“[…]

(i) How, if at all, does AI impact trademark law?


(ii) Are there any concerns raised by ownership of trademarks with respect to AI?


(iii) Do the functions, law and practice of trademarks need to be reconsidered with the increasing use of AI in marketing and the proliferation of AI used by consumers in the context of Internet of Things applications?


(iv) Will the use of AI, knowingly or unknowingly, by the consumer for product selection affect brand recognition? Will principles of trademark law, such as distinctiveness, recollection, likelihood of confusion or average consumer need to evolve due to the increasing use of AI? Are these issues for policymakers to consider?


(v) Who is ultimately responsible for AI’s actions, in particular when recommendations include infringing products?


(vi) Does the use of AI raise unfair competition issues? Is this an issue that the IP system needs to address?”[6].


Copyright


Copyright law will also be affected by AI. In fact, AI applications are capable of producing literary and artistic works. Thus, this raises the questions of whether or not the copyright system, which traditionally fostered “human creative spirit” and encouraged “the expression of human creativity”, should now apply to the works that AI applications produce[7].


Patents


Similarly to copyright law, patent law has also been impacted by AI inventors, with patent applications even identifying an AI application as an inventor[8]. Other queries relating to patent law that will be raised pertain to the patentability of the invention[9], the inventiveness and non-obvious nature of the invention[10], and the disclosure of the invention[11].


WIPO’s upcoming meetings


With AI/ML constantly developing, the conversation surrounding this technology is ongoing. As a result, WIPO will be hosting a virtual second session of the WIPO Conversation on IP and AI over a three-day period spanning from July 7 to July 9, 2020 from 13:00 -15:00 CEST (7:00-9:00 EST). This meeting is open to all to assist. Moreover, up until June 23, 2020, registrants may submit their request to intervene in the discussion by submitting a request to ai2ip@wipo.int. All the information regarding this second session can be found here.


And now back to your regular programming… Westworld.


This western and futuristic story touches upon some interesting legal issues, including:


1) privacy and data matters; for example: storing and processing of Host and Guest data, including biometric data, as they interact with one another - a form of “contact tracing”[12] as Hosts have the ability to transmit data to one another about their Guest experiences;


2) ownership of intellectual property and data generated by Guests and Hosts within Westworld, including for example the Hosts narratives (or storylines);


3) the way in which a Board of Directors is constituted, and if quorum is made (nota: we will not spoil that episode for those who have not seen Westworld);


4) ethics and ethical issues.


As remote, and dystopian, as the foregoing may sound, we are actually in the world of science fiction after all. AI and ML are here to stay. In a nutshell, AI “refers to systems that can be designed to take cues from their environment and, based on those inputs, proceed to solve problems, assess risks, make predictions, and take actions”[13]. These systems were first developed by humans and, as a result, followed human instructions. On the other hand, ML is the process, which allows a system to analyze the inputted data and act based on this analysis without necessitating to be programmed in such a fashion[14].


These technological advancements have also raised certain concerns (e.g., self-driving cars, HR practices), especially as their use becomes become more widespread[15]. Interestingly, many universities, such as Harvard University, have integrated ethics courses into their computer science programs in order to address the need for foresight when manufacturing an AI system[16].


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[1] Gittinger, Juli, Personhood in Science Fiction: Religious and Philosophical Considerations, DOI https://doi.org/10.1007/978-3-030-30062-3; https://link.springer.com/book/10.1007%2F978-3-030-30062-3#about [2] https://www.wipo.int/about-ip/en/artificial_intelligence/policy.html [3] https://www.wipo.int/about-ip/en/artificial_intelligence/. [4] https://www.wipo.int/about-ip/en/artificial_intelligence/policy.html. [5] WIPO Secretariat, WIPO Conversation on Intellectual Property (IP) and Artificial Intelligence (AI), May 21, 2020, par. 38, online: <https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=499504> (consulted June 16, 2020). [6] Id, par. 39. [7] Id., par. 23. [8] Id., par. 16. [9] Id., par. 18. [10] Id., par. 20. [11] Id., par. 21. [12] For further literature on contact tracing relating to current events, we invite you to visit the following links: https://royalsocietypublishing.org/doi/pdf/10.1098/rspb.2003.2554 ; https://science.sciencemag.org/content/sci/368/6491/eabb6936.full.pdf ; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7195043/pdf/main.pdf. [13] https://www.harvardmagazine.com/2019/01/artificial-intelligence-limitations (published January-February, 2019). [14] Id. [15] Id. [16] Id.

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