Intellectual Property and AI
IP is creations of the human mind protected by patents, copyright and trademarks - and generative AI stretches every part of that definition. Key anchors: Bartz v Anthropic on training data, and Thaler v Vidal confirming only humans can be named inventors on a US patent.
IP is creations of the human mind used in commerce → protected by patents, copyright and trademarks. Generative AI is stretching every part of that definition, with more questions than answers and inconsistent jurisdictions.
- Authorship & ownership → should IP laws apply to AI creations as they do to human works, and if so, who owns the rights?
- Copyright & training data → what data can train models? Bartz v Anthropic PBC (2025) is a significant US ruling on whether developers can train on copyright-protected works.
- Patent law & inventive AI → attempts to name AI as an inventor failed at the European, US and UK patent offices; South Africa recognised an AI inventor · Australia initially allowed it, then reversed, requiring human inventors.
- Trademark & branding → AI makes logo and design creation easy, but existing trademark legislation still must be complied with.
- Global legal uncertainty → diverse approaches across jurisdictions; stay informed on new legislation and case law.
- Training data & licensing → demand for data has never been bigger; review the licence agreement or contract for permitted use
| Where | Position |
|---|---|
| EU | Allows some data use for research under certain conditions → requires licences for commercial use |
| US | Fair use provisions might apply in certain cases → courts still determining; fair use permits unlicensed use in circumstances like criticism, news reporting and research, judged case-by-case |
| China | Focus on AI systems respecting copyright and data protection → no blanket bans |
Patent recall set → Thaler v. Vidal (Fed. Cir. 2022, cert denied 2023) → ONLY humans can be named inventors on a US patent · the EPO refused two AI-inventor applications in 2020 · the outliers are South Africa (recognised) and Australia (allowed, then reversed). Open question → how much human participation crosses the threshold?