This article looks at whether artificial intelligence can be recognized as an author of intellectual property. To shed some light on this issue, we have looked at one key case and how various jurisdictions around the globe have treated attempts to have an AI system listed as the author of the IP it created.
The case concerns DABUS, an artificial intelligence system owned by Dr. Stephen Thaler. DABUS created two inventions, and Thaler filed patent applications in several countries, specifying DABUS as the inventor.
The South African Companies and Intellectual Property Commission (CIPC) granted a patent listing DABUS as an inventor, noting that “the invention was autonomously generated by artificial intelligence”. This was the first time ever that an AI system was listed as the inventor of intellectual property. We point out that the South African Patents Act of 1978 does not define the term “inventor”
This decision triggered a widespread public reaction among intellectual property experts.
Similar applications filed by Thaler were rejected in the UK and Australia, as well as by the European Patent Office:
– In the UK, the Intellectual Property Office concluded that DABUS was not a natural person and therefore could not be an inventor. Both the High Court (September 2020) and the Court of Appeal (September 2021) affirmed the patent office’s decision.
– In Australia, the primary judge of the Federal Court found that an inventor could be an AI machine. This was appealed by the Australian commissioner of patents, and the Full Federal Court of Australia ruled that Australian patent law recognizes only natural persons as inventors of IP.
– European Patent Office rejected the applications on two grounds:
- The designation of a machine as the inventor did not meet the requirement that an inventor must be a natural person.
- The application stated that the applicant (Thaler) acquired the right to the European patent from DABUS, since he was its employer. This could not be correct since DABUS does not have a legal personality.
The overall trend indicates that AI cannot recognized as the author of intellectual property due to the necessity of human creative input.
Under current Kazakhstan legislation, only a natural person whose creative work has produced a scientific, literary, or artistic work is recognized as an author.
The Berne Convention establishes that an author has a range of moral rights (such as the right of attribution, the right to protect reputation, inheritance, etc.) as well as economic rights aimed at deriving benefits.
At the same time, AI cannot decide on the fate of the work it has created per se and cannot be a subject of civil rights. Such restrictions are an obstacle to the use of copyright by AI.
Consistent with the worldwide approach, we conclude that in the context of Kazakh law, AI is not capable of being recognized as the author of intellectual property.
Our next article will focus on the possibility of protecting AI-created works as objects of copyright. Make sure to stay tuned!
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Senior Associate, Almaty
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