Artificial Intelligence (AI) has been dominating headlines in 2023 and in the months of 2024 thus far. For Intellectual Property agents, it is a matter of great significance and deep discussion and analysis in international forums. In fact, just as an example, the Ninth Session of Dialogue of WIPO ‘Training machines: bytes, rights, and the copyright question’, held barely a couple of weeks ago, attracted over 5,000 attendees from 162 countries worldwide, as reported by the international organization.
Legislation regarding copyright and recent decisions from the Colombian Copyright Office (‘DNDA’) where registration of images created by AI has been rejected, show that such images are not protected by Copyright Law, given that they do not have a creative input from a human being, which is precisely what Copyright intends to protect. Nonetheless, there are still more questions than answers: What if the input provided by the human being, by means of which the AI system is instructed, has its creative input and is original? If the AI system is trained with literary, artistic works, and performances protected by Copyright and Related Rights, what mechanisms should be implemented to ensure the authors rights? Would the granting of licenses be a reasonable alternative or would it be better to opt for the establishment of a new limitation or exception for this type of use? Or what if an image is created by AI, but subsequently edited, amended and/or complemented with a particular stamp of originality by a human being; could that output be considered a work? Currently, there are AI platforms such as Midjourney or DALL-E, which allow users to generate Disney/Pixar Animation Studios-type images, through prompts that can be either general or specific depending on the type of image intended to be ‘designed’. In the United States, for instance, the Florida Court (Middle District of Florida – Fort Myers Division) suspended a lawyer for one year for including non-existent case law in a pleading, which he drafted with the help of ‘Chat GPT’. This shows that these systems, while being extremely useful tool, they can also generate inaccurate and imprecise content.
I trust that the European Parliament will continue to advance on the AI legislation, based on the recent Artificial Intelligence regulation. There are still plenty of questions regarding Intellectual Property rights related to the development of these technologies and those ‘creations’ generated by them.
David J. Méndez
Patents Director