Whose Line (of code) Is It Anyway? AI’s impact on the law of Intellectual Property

July 9, 2019

2 min read

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What's going on here?

Supreme Court justice Lord David Kitchin went on record to express his belief that the law will ultimately keep pace with emerging technologies (as he suggests it has always done).

What does this mean?

In a recent speech, Lord Kitchin focussed on AI, highlighting how the technology “challenges some of our basic assumptions.” Speaking to IP specialists in London, he said that “the law may be a little way behind technology, but time and time again, lawmakers have met challenges such as these. Now is the time to do so for AI.”

What's the big picture effect?

At the world famous auction house, Christie’s, a portrait sold for nearly 45 times its high estimate (for a mouthwatering $432,000). ‘The Portrait of Edmond de Belamy’ (a print created by the French trio ‘Obvious’) is entirely unremarkable in its subject, displaying a portly gentleman wearing a dark frockcoat and plain white collar. Indeed it may be argued that its execution is less than exemplary. But it is the painting’s signature that alludes to its utterly remarkable creation. The signature reads: min G max D x[log(D(x))] + z[log(1D(G(z)))], which represents a portion of the complex algorithm that was used to generate the image. The portrait was not the product of a creative human mind, but instead the artwork of an AI algorithm.

The arrival of ‘AI art’ raises fascinating and complex new issues. Particularly, the waters are muddied when it comes to the attribution of works (deciding who gets credit). Obvious borrowed some computer code from the work of 19 year-old high school graduate Robbie Barrat (who is also big in the world of AI art). Barrat shared his algorithms online via an open-source license, on the platform GitHub. The parallels between Obvious’ code and Barrat’s were so strong that Tom White (a New Zealand-based academic and AI artist) managed to produce a series of images that closely resembled the piece auctioned at Christie’s, by using Barrat’s unmodified code alone.

The story of ‘The Portrait of Edmond de Belamy’ is just one example that has attracted the attention of IP jurists. Lord Kitchin has also turned his attention to the law of patents, suggesting that programs which mimic the neural networks of the human brain are “increasingly capable of generating new and interesting ideas for themselves”. The question then arises as to whether the basic building blocks of AI should themselves be patentable. At present computer programs and mathematical models are not patentable.

Fundamentally, the law of patents is designed to incentivise and reward innovation. However, as computers don’t respond to these incentives, is it time to consider a new approach? We will have to wait and see what the court’s new approaches may be as these issues become litigated in the future.

Report written by Mark Pummell

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