The challenges of artificial intelligence for competition law - JD Supra

The question whether artificial intelligence (AI) systems, when acting independently of humans, can be considered inventors is not recent¹. Along with advancements in the sophistication of these systems, the possibility for them to “create” in an increasingly broad sense (which includes software), comes quickly to mind. As software is protected by copyright, in most legal systems, only a standard of originality is required in its creation. Thus the question begs: If an AI system—acting as an extension of its original creator (a natural person)—creates new software, should the copyright on this program be automatically attributed to the creator of the AI?

The enormous potential for exponential growth of this way of creating software could put those human “authors” (using the jargon and characterization of intellectual property rights) who create software for themselves, against those who “create” it mediately through an AI system, at an imbalance in the market. This finding could challenge us to look out for possible problems of abuse of market power or unfair competition.

But other problems can also arise at the origin, since artificial intelligence systems require access to large amounts of information (learning, input and feedback data²), and here it is worth asking, among other questions³, if data mining, directed to produce new software, could be covered in a simple way by the exceptions listed in Articles 3 and 4 of Directive 2019/790 of the European Parliament and of the Council⁴.

Derivatively, and placing the debate ground in Ecuador, it also raises the questions of whether AI systems are really inventors, which seems not yet to be widely accepted⁵. Ecuadorian Intellectual Property Law sets out in Article 102 that “copyright arises and is protected by the sole fact of the creation of the work” and that its protection is granted “without consideration of the genre, merit, purpose, destination or mode of expression of the work;” however, Art. 108 then orders that “only a natural person can be author” and that “legal persons may be holders of economic rights over a work.” Art. 275 ibidem states that “patent holders can be natural and legal persons.” All of these provisions may be held as a hurdle to keep AI systems in any way separate from their creators, when the former have created software or patents.

By iteration, it will remain as a matter to be discussed, among others, if the capacity of AI to be considered inventors or authors is accepted and, in these circumstances, if they can be holders of intellectual property rights, which then entails that they may also be considered economic operators, subject to the regime of competition law. For now, it seems that we must accept that we will be going through an intermediate moment in which the creators of AI systems will be responsible for their creations as per culpa in vigilando, for all purposes of IP and competition regimes.

1. A paradigmatic example of this issue is the so-called DABUS Case, website https://www.bailii.org/ew/cases/EWHC/Patents/2020/2412.html [Consultation date: April 5, 2022]. In a ruling dated September 21, 2020, the Patent Court (High Court of England and Wales) rejected the argument that artificial intelligence systems can qualify as “inventors” under the UK Patent Act 1977. The Judge Marcus Smith recognized that DABUS “invented” the inventions, but since he was not a “person” it could not be considered an inventor.
2. SUDEROW J., “Inteligencia artificial y competencia, acceso a datos en el ejemplo de la movilidad y del vehículo autónomo”, Revista de Estudios Europeos – N° 78, July-December , 2021 , p. 227 .
3. In this regard, several additional issues can be seen in the following article https://www.lvcentinvs.es/2021/01/27/que-son-realmente-las-creaciones-generadas-autonomamente-por-ia/
4. Directive 2019/790 of the European Parliament and of the Council of April 17, 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.
5. RASMUSSEN X. y VINTI B., “Artificial Intelligence as the Inventor of Life Sciences Patents?”. Website https://www.proskauerinlifesciences.com/2021/08/artificial-intelligence-as-the-investor-of-life-sciences-patents [Date accessed: April 5, 2022].

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