Back in 2018, the European Commission published a Coordinated Plan on AI, aimed at setting the European approach to AI (anthropocentric, sustainable, safe, inclusive, and reliable), promoting the adoption of national plans, and ensuring EU funding.
To preserve global competitiveness, the Commission is committed to promoting innovation in the development and use of AI technologies in all industries sectors and all Member States. Therefore, the development of artificial intelligence systems represents an important opportunity for development and increased competitiveness in both Member States and the private sector, increasing the competitiveness of companies.
However, when we talk about artificial intelligence, many questions arise.
There are two kinds of artificial intelligence:
- Weak AI: is based on the use of programs by humans to carry out certain tasks and resolve problems, such as an online translator;
- Strong AI: has reasoning and problem-solving abilities that are indistinguishable from human ones.
In both hypotheses, we are moving in the field of software development, whose protection necessarily intertwines with the world of intellectual property.
Intellectual property attributes to the creator or the inventor of the work the right to exploit the creations, ensuring appropriate protection against improper use of the work by unauthorized parties.
Intellectual property is differentiated into:
- Copyright: Protects literary and artistic works, and intangible goods such as databases and software;
- Industrial property: Protects invention/creation through trademarks and patents.
As a consequence of this distinction, it is important to understand what possible systems of protection apply to artificial intelligence.
We will analyse the possible protections provided for works:
- CONSISTING OF AI: Protection of inventions/works consisting of or based on AI technology.
- RESULT OF AN AI: Protection of the work/invention realized autonomously by AI systems.
We begin with the first.
Intellectual property consisting of AI
When we talk about creations realized with the support of an AI or based on AI technology, we refer to software development.
But are the inventor of software as an AI granted rights? And if so, what are the rights?
The Italian legislation identifies two possibilities: copyright and patent protection.
Italian Copyright Law n. 633/1941, in article 1 paragraph 2, protects “computer programs” as literary works, thus guaranteeing to the author of the program that created it the relative:
- moral rights: non-transferable and consisting in the attribution of the right to the paternity of the work;
- patrimonial rights: transferable and allowing the right to the economic exploitation of the work.
Copyright does not require any formalities to be recognized and will exist for all the author’s life and up to 70 years after his death.
However, the copyright law protects software only if it is creative, thus original (art. 2 points 8).
The software will be considered original if it presents elements of innovation compared to other pre-existing software and does not provide a standard solution known in the sector.
According to Article 45 paragraph 2 letter. b) of the Code of Industrial Property (Legislative Decree 10 February 2005, n.30) computer programs are not considered inventions and therefore they are not patentable.
However, the European Patent Office has recently updated its guidelines to include a specific section on the patentability of inventions involving AI, also defined as “computer-implemented inventions” (CII).
Specifically, for software to be patentable, it must be incorporated into an invention that has the following requirements under Article 45(1) of the Code:
- Novelty: The invention must consist of something new, something that is not already part of the “state of the art”;
- Originality: The invention must be original and not easily deducible from what is already in the public domain;
- Industrial application: The invention must have an industrial, and not simply a commercial, purpose.
In addition, a patent may be granted when the AI:
- has a technical character, contributing to a solution to a technical problem;
- satisfies the requirements of clarity, conciseness, and sufficient description, and from the patent application, any expert in the field must be able to realize the invention.
This interpretation of the European Patent Convention allows the EPO (European Patent Office) to authorize the patentability of technologies based on artificial intelligence, in many technology areas such as medical devices, the automotive field, media, communication, etc.
Finally, the patent holder will be granted industrial property rights on the invention for 20 years from the filing date of the invention.