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Courts in both the US and UK are deciding on a number of cases relating to the use of IP protected materials in the training of AI engines. These cases could have significant implications as to whether and how businesses can protect their publicly available material, which may have already been used to train AI engines. In Getty Images Inc v Stability AI, the UK High Court is deciding how existing copyright and database right law applies to Stability AI's use of Getty's library of photographs and images to train its Stable Diffusion text to image generation product. The court will hear preliminary arguments on exactly how the AI engine learns using the training materials to determine whether Getty has a sustainable case and will later look at whether Stable Diffusion's output can also be an infringement. There are parallel proceedings between the parties in the US. In a similar case in the US, Thomson Reuters is objecting to the use of its material on the Westlaw service to train an AI engine.
Policymakers are also working out their approach. In EU AI Act is in its trialogue stage but in the UK, the UK Parliamentary Select Committee has published recommendations, including identifying several areas where IP needs addressing. The UK Intellectual Property Office is also working on a code of practice around AI and IP.
Another significant area of uncertainty is whether an AI engine's output can be protected under IP law in the same way as human authored materials. The US Copyright Office (USCO) has maintained its view that images produced by AI engines are not protectable by copyright due to the lack of a human author. This was confirmed by the US court in relation to an application made by Dr Thaler for protection for copyright images. While the protectability elsewhere in the world under copyright is still not formally determined, the USCO approach is a warning to companies utilising AI engines that their output may not have the usual IP protections. In terms of patentability, patent offices worldwide have continued to develop guidance on the patentability of inventions involving AI, but the UK Supreme Court has yet to decide if an AI engine can be named as an inventor in the DABUS case. Finally, while courts and policymakers decide whether the output of AI engines infringe existing IP rights, companies have taken matters into their own hands to encourage the uptake of the AI products. Microsoft, Google and Adobe are now offering some form of IP indemnity to reassure customers that use of their respective AI products will not lead to liability for copyright infringement claims.
The Unified Patent Court (UPC) has come a long way in the six months since its launch on 1 June 2023. The cases filed include over 50 infringement actions as well as over 20 revocation actions and span a variety of sectors, including life sciences, consumer goods and mechanical engineering, and involve parties from the US, India, UK, Switzerland and UPC-participating EU states.
So far, the UPC has:
Partner and Head of Intellectual Property, UK, Milan
Partner, Intellectual Property and Global Head of Cyber & Data Security, London
Of Counsel, London
Professional Support Consultant, London
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2024