The front line intellectual property rights for AI and big data are patents, copyright, the sui generis database right and trade secrets. These are discussed in more detail below. Patents, copyright and the sui generis database right are not always suited to protect AI or data. In all cases, confidentiality should be carefully preserved and suitable contractual arrangements put in place.

Complexities in protecting for AI and big data do not seem to have dampened R&D. In many industries, the current investments in AI may owe less to the incentives of intellectual property ownership and more to intense competition. The car industry, in particular, is in a headlong race, involving incumbents and tech-focused new entrants, to achieve the winning "platform" business model for "mobility as a service".

The adoption of AI may indirectly promote the importance of other intellectual property, such as trade marks and designs. If carmakers do sell mobility as a service rather than cars, trade marks and branding generally may become more important in distinguishing these new services. If the functionality of the car changes significantly (such as the obsolescence of pedals and steering wheel), radical new product designs may be critical to market share (as they have been in the smartphone market).

Brexit is not expected to affect the types of intellectual property rights available in the UK. Fundamental aspects of patent and copyright law are harmonised by international treaties independent of the EU.[1] For national IP rights covering the UK, the present systems of protection and enforcement will remain intact. This is the case, for example, for patents (both "European" and national), UK trade marks, UK registered and unregistered designs, copyright and neighbouring rights (including database rights) and trade secrets. For EU-wide rights obtained or arising under an EU regime, the EU will no longer consider the right to cover the UK or the UK to be within the EU-wide regime. However, the UK will extract from the EU-wide right a UK right of the same scope, enforceable in the UK courts as a national right. This is the case, for example, for EU-trade marks, Community registered designs and unregistered Community design rights. If the EU's "unitary patent" regime comes into force and the UK is allowed to take part (neither of which is certain at the time of writing), the Government appears to intend to adhere to EU law, and to continue to recognise the jurisdiction of the Court of Justice of the European Union (CJEU) (in contrast to general Brexit policy).

Patents

A recent report by the World Intellectual Property Organization describes a current "AI patent boom", finding that over half of the inventions identified in its research were published since 2013.[2] This mirrors the fast-emerging importance of AI across most, if not all, industries. It also belies the complexities in obtaining and exploiting patent protection.

In the UK, patentability is governed by the Patents Act 1977, which was enacted to give effect to the European Patent Convention. In general, the UK Court seeks to follow decisions of the European Patent Office's Boards of Appeal, and the EPO's Guidelines for Examination and Case Law of the Boards of Appeal are sources of key principles. The EPO has recently added specific guidance on AI to its Guidelines. As in other key jurisdictions (e.g. China, Japan, Korea and the USA), algorithms per se face considerable challenges to patentability. The EPO takes the approach that AI computational models and algorithms are excluded from patentability, unless they amount to a computer program having a "further technical effect" going beyond the "normal" physical interactions between the program and the computer on which it is run.[3] Examples given by the EPO of further technical effect include controlling anti-lock braking and restoring a distorted digital image.[4] There is a healthy debate as to what jurisdictions are currently most favourable to AI patents, particularly following considerable challenges in US practice following Alice.[5]

Other areas of growing debate include best practice for the extent and substance of disclosure relating to the working of the AI, the patentability of inventions created by inventive AI and whether, in time, inventive AI will raise the hurdle for inventive step or even require new approaches to the protection of inventions. For now, both the EPO and the UK Intellectual Property Office, in practice, require human inventors to be named as part of the patent application process, but this requirement is not backed up by penalties for false statements (unlike in the US system), and there is no obligation to disclose the role of any inventive AI involved in the making of an invention.

Of more immediate practical concern are potential complexities of proving infringement of a patented AI where, for example, the alleged infringing activity may be performed partly in a "black box" and/or in "the cloud". For this reason, AI patents are often targeted at infringements that can be readily identified from publicly available documents or simple inspection.

Copyright and database rights

Although there is much talk of the value of data (such as the soundbite "data is the new oil"), there is no clear corresponding intellectual property right, and it may be best to think in terms of the "control" rather than the "ownership" of data. As a general principle, copyright targets the expression of ideas rather than ideas (or information, or "data") per se. UK law provides for two forms of "database" right: one a specific form of literary copyright; and the other the "sui generis" database right. In both cases, there are doubts as to their suitability to protect "big data", such as the requirements of "intellectual creation" (for copyright), of substantial relevant investment (for the sui generis database right) and that the collated materials should be separable without affecting their informational value. A recent review by the European Commission assumed, on the basis of CJEU decisions, that the "sui generis right does not apply broadly to the data economy (machine-generated data, IoT devices, big data, AI, etc)".[6]

While literary copyright in computer programs is routinely recognised by the UK Courts, an AI algorithm, per se, may not attract such protection. The EU "Software Directive", implemented in the UK, provides that: "protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive." The model developed via the algorithm may additionally not fall under literary copyright for computer programs, because protection only arises for a computer program which "is original in the sense that it is the author's own intellectual creation". UK copyright expressly allows for copyright in "computer-generated" literary works, but it is not yet clear how that interacts with the requirement that a computer program be the author's own intellectual creation.

A draft EU Directive on copyright approved by the European Parliament in April 2019[7] may prove to be of considerable importance to AI and big data. It is intended, among other things, to promote innovation by enabling text and data mining of copyright works. It includes a wide exception to infringement for scientific research, and a general exception (subject to certain express reservation of rights by the right holders) for data mining of lawfully accessible works. Specifics are not given, but this seems likely to cover, for example, the extraction of driver behaviour from CCTV streams, the extraction of age, sex and race data from photographs of company executive boards, etc. It remains to be seen whether this Directive will have the chance to come into force in the UK. The proposed exceptions might be relatively important in the UK, because the UK applies a relatively low threshold for some copyright protection. For example, in the UK, any photograph is likely to attract artistic copyright (with duration of life of the author plus 70 years), whereas the threshold for equivalent protection in Italy is considerably higher.

Confidential information and trade secrets

Given the above, reliance on confidentiality and the law of trade secrets may be necessary, and may be positively attractive since it avoids the disclosures required by the patenting process. The UK's long-standing protection for confidential information and trade secrets is broadly suitable to protect valuable algorithms and data. The common law in this area was updated in 2018 with legislation to give effect to the EU Trade Secrets Directive, but the scope of available protection is considered unlikely to have changed substantially. In contrast to the courts in some other EU countries, UK courts have well-established procedures to maintain the confidentiality of information in legal proceedings. These procedural safeguards apply to proceedings specifically concerned with alleged breach of confidence or misuse of a trade secret, and to proceedings founded on other grounds (such as patent infringement) but involving information which is confidential. Recent news of tech companies falling out with ethics panels suggests that the interaction of trade secrets and "whistleblowing" may be tested (which, for example, has already been a source of debate in the French Parliament).

This text first appeared in the UK chapter of Global Legal Insights - AI, Machine Learning & Big Data 2019, published by Global Legal Group, Ltd.

Footnotes

[1] These include the European Patent Convention (between European countries and not exclusively EU Member States), the Patent Cooperation Treaty, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the Berne Convention
[2] World Intellectual Property Organization, WIPO Technology Trends 2019: Artificial Intelligence, page 13.
[3] European Patent Office, Guidelines for Examination, G-II-3.6.
[4] European Patent Office, Guidelines for Examination, G-II-3.6.1.
[5] Alice Corp. v. CLS Bank International, 573 U.S. 208, 134 S. Ct. 2347 (2014).
[6] Executive Summary of the Evaluation of Directive 96/9/EC on the legal protection of databases, 25 April 2018.
[7] To be called the Directive "… on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC".