E-News No.47

E-News No.47

IP of AI – New type of intellectual property? How the TRIPS Agreement is involved?

by Takeshi S. Komatani, Member of the Standing Committee on TRIPS

The Japanese government is considering establishing a new protection system for intellectual property created by non-human, i.e. Artificial Intelligence (hereinafter “AI”). This was proposed in the Intellectual Property Promotion Plan 2016 approved in the meeting held at the Japanese Intellectual Property Strategy Headquarters on May 9, 2016.

The Promotion Plan proposes to revise the copyright system to make it possible to use copyrighted works under set conditions in order to promote the collection and usage of big data toward a fourth industrial revolution. The plan states “[M]oving forward, the government will continue to consider the extent of intellectual property rights and for whom they will be granted, in relation to creative works produced by artificial intelligence.” Of course, intellectual property of AI is not limited to copyright but also patent, industrial design, trademark etc., and the Plan does not appear to limit intellectual property to copyright. Copyright is generated without any particular registration procedure. Therefore, there are more concerns related to copyright than other type of intellectual property which requires registration. Particularly, it is usually difficult or practically impossible to distinguish from music works, novels, movies, and designs etc., created by AI from those created by natural or legal persons.

Currently, Japanese law only allows persons, either natural or legal, as a proprietor. With respect to proprietors, the TRIPS Agreement merely states in Article 1(3) that “[M]embers shall accord the treatment provided for in this Agreement to the nationals of other Members.~(1) … the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection” (emphasis added). The note (1) thereof states “[W]hen “nationals” are referred to in this Agreement, … to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in that customs territory.” (emphasis added). As such, it appears that the TRIPS Agreement does not expect AI to be the realm of protection of intellectual property, based on per se interpretation, or at least the TRIPS Agreement is neutral whether or not such should be protected.

With respect to AI, the TRIPS Agreement defines copyright and related rights in Part II, Section 1 regarding “Computer Programs and Compilations of Data”; however, this section only defines computer programs and compilations of data as objects to be protected, but NOT as proprietors.

Should Japan decide to protect intellectual property rights created by AI, most likely by introducing a statutory definition that AI shall be deemed a species of a legal person, Japan would have to render the same IP rights to AI from the other Members of the TRIPS Agreement. The other Members may then be forced to introduce a similar system as in Japan, since, without such a system, AI would be given intellectual property in Japan but not in their own state, which would eventually be criticized.

As such, the TRIPS Agreement will likely trigger or interface to introduce new protection systems for intellectual property of AI throughout the world. In this regard, Art. 1 of the TRIPS allows Member states to have provisions that are more protective of IP rights such as those for AI.

Not only do IP rights of AI have an aspect of proprietorship, but also are there problems in considering infringement – if AI were deemed a legal person, then AI would also be subject to possibility of infringement. Therefore, in the near future, there could be some instances, for example, where a European AI judge will proceed with an infringement lawsuit between a Japanese AI proprietor and a US AI potential infringer!

URL: http://japan.kantei.go.jp/97_abe/actions/201605/09article3.html (Japanese)