Artificial Intelligence and Intellectual Property: challenges and opportunities in terms of legal protection

Artificial Intelligence (AI), as the concept naturally implies, is nothing more than the ability of a machine to exhibit the same capabilities as humans, such as reasoning, learning, creativity, and planning. This is achieved through the creation of systems based on the use of algorithms and mathematical models that process information derived from data and make decisions to achieve a goal.

The increasing use of AI in the creation and development of new technologies is unstoppable, and we see it increasingly employed in areas such as web searches for automatic translations, achieving energy-saving efficiencies, navigation systems for driving, commercially optimizing products and inventory planning, improving logistical processes, creating personalized recommendations for online consumers based on their behaviors and preferences, making medical diagnoses, creating musical works, applications, and games; in short, it is present in almost all fields of human action.

It becomes necessary, then, to address topics of relevance such as the close relationship between AI and intellectual property, as well as the challenges that arise in this field.

Intellectual property, understood as the set of rights that protect creations of the mind, such as inventions, literary and artistic works, designs, and trademarks, represents one of the crucial aspects for protecting innovations and generated results. From the perspective of copyright law, the first major consideration arises regarding who owns the authorship of works created by AI algorithms.

From a strictly legal perspective, AI systems themselves could not be considered as authors, as in most legislations, only a natural person can be considered as an author. In the traditional protection of copyright over computer systems, the scenario is less complex as the system serves only as a means of support or tool to materialize intellectual creation. However, in the current context of AI, the computer program is no longer a mere tool but makes many decisions associated with the creative process without human intervention. Based on this premise, since AI systems can create works autonomously, it could then be argued that, by escaping copyright protection, anyone could use them freely, and this would represent a disincentive to companies that invest millions in creating these systems that could not then be protected by intellectual property rights.

The debate on the matter is extensive and continues to be open, and although there are no uniform guidelines that resolve the addressed question, we observe a marked gap in Latin American countries where no legislative reference or protection is identified in this matter. In countries like the United States, human intervention in the creation process has become the key piece for attributing copyright to a work of this type, and finally, some countries like the United Kingdom and India have already incorporated the concept of works generated by computers, allowing protection to legal entities.

While legislations are adapted to the speed of the advancement of the use of these new technologies, it is worth recognizing and highlighting that works or inventions, the fruit of human beings that meet the requirements, are protected by available intellectual property regimes. This is how:

    • Inventions developed with the help of artificial intelligence can be patentable if they meet the requirements of patentability, such as novelty, inventive step, and industrial applicability. It is important to determine who the inventor is in these cases, as in many legal systems, only a natural person is recognized as an inventor.
    • The information used by AI algorithms to learn and make decisions may be protected by privacy and data protection laws. It is essential to comply with current regulations to ensure the privacy and security of the data used by AI systems.
    • From the perspective of protecting trade secrets, in some cases, companies may choose to keep AI algorithms and data used as part of their intellectual property secret. Trade secret protection can be a strategy to preserve a competitive advantage in the market.

In conclusion, AI has enormous potential to increase productivity, analytical capacity, and result generation, becoming a powerful tool for the transformation of the economy and society. Therefore, countries must build incentive conditions for research and development based on data science, focusing on reviewing copyright protection regimes, creating a climate of legal certainty for the development of these activities, and ensuring equitable protection of rights, always taking into account the necessary exceptions to ensure fair access to knowledge from a social perspective.