Who Owns IP Rights in the Age of Artificial Intelligence?

by JD Supra Perspectives

“Experimentation is the least arrogant method of gaining knowledge. The experimenter humbly asks a question of nature.” — Isaac Asimov

Artificial Intelligence (AI) is coming for your job. But is it coming for your photographer or inventor? The driver-less cars, automated factories, and automated laboratories of today may give way to AI capable of thinking, writingcreating or even diagnosing disease.

While we may be many years away from true “general AI” capable of human-like intelligence, automation is taking over many tasks relegated to humans — like running laboratory experiments or being a lawyer.

The term “narrow” or “weak” AI, refers to AI capable of performing “specific ‘intelligent’ behaviors in specific contexts,” while “strong” or “general” AI refers to “hardware or software emulating human-like general intelligence.”

Intellectual property law focuses on creators and inventors — people who create and invent. For example, the U.S. Constitution refers to securing exclusive rights to “authors and inventors.” Arguably, the definition of “authors and inventors” could include non-humans, but there is no legal authority in the US for doing so.

In a typical scenario, the employer of a creator or inventor becomes the owner of the intellectual property by virtue of a work for hire or employment agreement. What happens when the creator or inventor is a general AI?

Imagine a biotechnology company of the future that deploys AI to identify a chemical compound that binds to a receptor of interest. The AI considers the available literature and the detailed structure of the receptor. It devises and deploys a protocol to design candidate chemical compounds and tests the ability of the compound to bind to the target receptor.

The company patent attorney sits down to write the application and immediately faces a dilemma. Who should be named as an inventor? The AI programmer? In this case, the AI, not the programmer designed the candidate chemical compounds and tested them. In this scenario, there would be no inventor and no intellectual property.

To some, this outcome may be preferable. After all, the purpose of patent law is to encourage people to invent, not machines. However, we may want to incentivize companies to invest in AI capable of inventing new drugs.

The law could be amended to define “author” and “inventor” as “hardware or software capable of human-like intelligence” or a more nuanced definition that references independent thought or even being sentient. However, would we be opening pandora’s box of conferring “additional rights” to AI capable of independent thought and creativity?

Recently, a US court held that a monkey was not entitled to copyright protection for a selfie. According to Judge William Orrick “If they (Congress, the President) think animals should have the right of copyright they’re free, I think, under the Constitution, to do that.

How would creativity and invention be incentivized by expanding the definition of an author to include a monkey taking a selfie? Since the monkey is not an economic actor, would copyright provide any incentive for the monkey to take more selfies? If the rights flow from the monkey to monkey’s owner, the owner may be incentivized to let loose a monkey photographer in the hope of generating value from the resulting monkey photo shoot.

...if the AI were self-aware and capable of creative and inventive activity, why shouldn’t other rights be accorded?

On the other hand, some may argue that the monkey is a sentient being entitled to ownership rights. It is not difficult to imagine that those bringing the copyright lawsuit had ulterior motives. If a monkey could own a copyright, why not a house? And if a monkey could own property, perhaps the monkey should have additional rights including the right not to be owned at all.

The same issues may arise with respect to general AI. If the AI were self-aware and capable of creative and inventive activity, why shouldn’t other rights be accorded?

These questions raise issues that go to the very foundations of intellectual property law, including the economic incentive to encourage certain activities, and the “moral rights” associating with according credit to authors.

How we resolve these issues has broader implications for how we integrate AI into our economy and, more importantly, how we decide who is entitled to rights in the first place.


[Jeremy A. Cubert is a partner at VLP Law Group and is a member of the firm’s Intellectual Property practice group. He writes about strategies to simplify the way inventors and investors evaluate and protect biotechnology and pharmaceutical inventions.]

Written by:

JD Supra Perspectives

JD Supra Perspectives on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.