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Brooklyn Law Review

Sofia Vescovo

Abstract

Artificial intelligence (AI) is not new to generating outputs considered suitable for intellectual property (IP) protection. However, recent technological advancements have made it possible for AI to transform from a mere tool used to assist in developing IP to the mind behind novel artistic works and inventions. One particular AI, DABUS, has done just so. Yet, while technology has advanced, IP law has not. This note sets out to provide a solution to the legal concerns raised by AI in IP law, specifically in the context of AI authorship and inventorship. The DABUS test case offers a model framework for analyzing the different approaches that domestic and foreign courts, as well as IP offices, have adopted to address the issue of AI-generated IP. Despite the variety of solutions that exist and that have been proposed globally, no country has identified an optimal approach to balance encouraging innovation with the need to protect human authors and inventors. This note proposes expanding the Patent Act and Copyright Act to include a new type of IP right, called Digiwork, available exclusively to AI-generated IP. Digiwork patents and copyrights would be property of the AI machine’s owner, or alternatively of the person who commissioned the work, with the AI itself listed as the “source” rather than as an author or inventor of the IP. By granting IP protection to AI-generated outputs, Digiwork rights would promote the use of highly sophisticated AI to generate value for the economy and society. At the same time, they would also safeguard human authorship and inventorship by precluding AI from taking over a legal space they were not meant to occupy.

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