Impact of AI on IP – the good, the bad and the questionable

The opportunity to use AI (artificial intelligence) as a tool in your business is all around us.  Integrating AI into your business can boost productivity, but it certainly comes with its risks. In particular, ‘generative AI’ has been a topic of controversy in the IP scene, raising regulatory and legal concerns. In this article, intellectual property assistant Gracie Scragg discusses what business owners should be aware of when using generative AI in relation to their intellectual property rights.

The benefits

Generative AI involves the inputting of engineered prompts into a generative AI platform, such as the well-known ChatGPT and the Bing Chat Enterprise platform, which use computer-learned patterns, based on curated large language models, to produce outputs in response to those prompts.  Generative AI platforms are capable of many creative tasks including generating content such as audio, text, images, code and videos.1

Generative AI also offers opportunities to business owners, particularly in supporting and safeguarding their intellectual property rights. Business owners can use it for content recognition, authentication and personalised management purposes.

For example, generative AI can be utilised to identify unauthorised use of duplicate copyrighted material, or embed watermarks in digital content which act as unique identifiers. AI algorithms also have the ability to verify the authenticity of content by distinguishing it from AI-generated content and duplicates. Owners can use AI systems designed to track the distribution, usage rights, and royalties of such content more efficiently. AI can increase productivity for owners by personalising and simplifying IP rights management.

In a world that is becoming increasingly digitalised, generative AI provides an efficient means to prove ownership and monitor potential infringement, supporting the integrity of creative assets online.

The shortfalls

While this all sounds efficient and useful, we have to remember that generative AI has shortcomings. One of its many uses is its ability to facilitate the creative process by generating new and original content. But the question stands - who owns the IP rights to that content?

The issue with generative AI’s ability to use learned patterns to create new content, is that it mimics and resembles existing creative assets that already have attributed intellectual property rights. In other words, AI-produced content is just a variation of those learned patterns.   In the absence of safeguards or a code of conduct provided by the particular platform, the use of generative AI could lead you into trouble. 

For example, let’s take a song that an artist has written using AI. Generative AI has generated that song based on the millions of musical works available to it, analysing their melodies, rhythms, structures and more. Unbeknown to the person feeding the prompts in the platform to create the song, the final product could be unintentionally infringing existing copyright protected material due to AI’s mimicking process. It can be difficult to ascertain where the mimicked material has originated from, which only complicates the enforcement of IP rights.2 The result is an erosion of the value of the original works.

Determining ownership of AI-generated content is complicated. Who is the true author: the user who employed the AI to generate the content, the AI creator or trainer, or the author of the work that has been mimicked? Ethical and legal issued abound and regulatory bodies are yet to come up with an answer. The concern is that as the lines of authorship and ownership become blurred, the less power the legal system has in both enforcing IP rights and deterring deception and confusion.

The purpose behind the law of intellectual property rights is to protect the end outcome (whether that be a trade mark, a creative work, design or invention). Any content generated by computer programs or AI plaftorms is the result of mimicking such creative processes of real individuals, and serves as a real threat to the integrity of original works. As such, it is something that officials will need to prioritise now and in the future.

What business owners can do now

So what can business owners do to mitigate the risks to their IP rights that come with generative AI? Safeguarding against infringement involves legal protections, proactive strategies and technological measures.

First, it is crucial for business owners to understand and utilise the current intellectual property laws in their country. Seeking legal advice on how to protect and enforce IP rights is an essential investment. Further, intellectual property attorneys are specialised in monitoring mark registrations and advising on potential threats of infringement.

Secondly, harness the benefits of generative AI. As previously mentioned, AI provides owners with the means to manage their rights online, recognise potential infringement, and authenticate original works by way of watermarking and digital signatures. There are a number of content recognition technologies that can be used to track unauthorised use of original content.

Thirdly, business owners have their own role in staying updated with advances in AI technology, and engaging in policy advocacy where it affects them. Contributing to the conversation about how generative AI affects intellectual property rights will keep the issue in the forefront of official concern.

What Next?

 The World Economic Forum3 suggests that intellectual property laws will be forced to change as AI dominates the business world. This would require reform of legal frameworks, ethical guidelines, and putting in place technological solutions to address the challenges posed by generative AI.

Such questions concerning the level of protection afforded to content generated using AI need to be answered so that creators can understand both the legal ramifications and protections of intellectual property law.

Gracie Scragg - December 2023

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