Study  |  04/21/2021

Research Group Develops Analysis on Artificial Intelligence and IP Rights

The increasing use of Artificial Intelligence (AI) has the potential to alter the parameters of the existing IP system. In an in-depth study, a Research Group of the Institute’s legal departments presents a broad overview of issues arising at the intersection of AI and IP law.

Research Group “Regulation of the Digital Economy”, Position Statement „Artificial Intelligence and Intellectual Property Law“ Max Planck Institut für Innovation und Wettbewerb, Reto M. Hilty, Josef Drexl, Daria Kim
The Research Group “Regulation of the Digital Economy” is investigating the effects of Artificial Intelligence on Intellectual Property Law, Photo: Myriam Rion

The more Artificial Intelligence (AI) shapes the digital economy, the more insistently questions arise on the interplay of AI and intellectual property rights. To fully realize its potential for fostering innovation and welfare, AI needs an appropriate legal framework, which also includes property rights.

So far, the political and legal discussion has focused primarily on the output; more precisely, what is generated by the use of, or at least with the support of, Artificial Intelligence. To evaluate whether the existing IP system can still fulfill its function within the parameters of this fast-moving technology, a more holistic view is necessary. Particular consideration must be given to the individual steps of an AI-driven innovation cycle in which IP rights may play a role.

Comprehensive analysis

Against this backdrop, the Research Group “Regulation of the Digital Economy” of the Institute’s legal departments led by the two Directors Josef Drexl and Reto M. Hilty has developed a comprehensive analysis. The paper identifies potential issues that could arise at the intersection of Artificial Intelligence and IP rights and introduces different directions in which solutions can be found.

The structure of the analysis is based on the three levels that need to be distinguished with regard to innovation or creation processes. First, issues related to the input required for the development of AI systems are investigated. The second part of the paper examines protection of AI Tools, while the third part focuses on property rights for AI-generated or AI-aided output.

Focus von European IP law

The analysis focuses on substantive European IP law, in particular on copyright, patents and designs, as well as on the sui-generis protection for databases and the protection of trade secrets. The latter can already play a role on the input side, but are especially important with regard to AI as a tool since the traditional IP systems hardly appear to be suitable for the particularities that need to be considered. However, property rights play a role primarily with regard to what is generated using AI; this also includes aspects such as the allocation of rights and, if applicable, the scope of protection.

The paper builds on insights that the Research Group has already gained in previous studies, especially with regard to the technical context. On this basis, it identifies those questions that require further – especially interdisciplinary – research. Overall, the paper emphasizes the need for a more holistic view, especially with regard to the fact that various IP rights play a role and may overlap in IP-driven innovation or creation.

The complete Position Statement “Artificial Intelligence and Intellectual Property Law” can be found here.