Understanding IP Risks In The Age Of AI

• Published date: 04 April 2024
• Subject Matter: Intellectual Property, Technology, Copyright, New Technology
• Law Firm: HGF Ltd
• Author: Dr. Nick King

Generative Artificial Intelligence (AI) has become a transformative force in many industries, offering unprecedented opportunities for innovation and efficiency. However, along with those opportunities also comes risk. This article explores some of those risks with a focus on UK IP laws.

Subsistence and Ownership of IP in AI-Generated Works

A typical output of generative AI might be written content, images, audio or video, all of which have the potential to be of commercial value to a business. Under UK law, copyright is automatically granted to a human creator of such works if they are sufficiently original, thereby providing legal protection against third party copying. But what if the work is instead generated by an AI model? For example, if a journalist uses a large language model to generate a comment piece or a fashion designer uses an image generator to generate a new clothing design. Does copyright subsist in such outputs to prevent copying and who owns that copyright if it does subsist?

Whilst few IP laws explicitly deal with content generated by AI, the UK is one of the few jurisdictions to provide for the subsistence of copyright and design right in computer generated works with no human author. However, the legal concept of originality (which is necessary for copyright to subsist in a work) has been developed entirely with reference to human traits such as personality, judgement and skill. It is therefore unclear whether copyright can subsist in an AI generated work, opening up the risk that there may be no legal recourse to prevent copying of commercially valuable AI generated works in the same way that there would be if they had been authored by a human.

If copyright can subsist in an AI generated work, the legal owner of that work is the person who made arrangements necessary for the creation of the work. The law does not however provide a clear definition as to who that person would be in the context of generative AI models. There is therefore a risk that ownership of commercially valuable works could potentially be claimed by the developer of the AI model, rather than the person authoring the prompts to generate the work.

Infringement of Existing IP Rights

Generative AI learns from existing data, which often includes works which are subject to IP protection. If an AI model generates content that is substantially similar to...