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From the rise in deepfakes appearing online to the increased accessibility of generative programs such as Chat-GPT and DALL-E, it seems that around every corner there is a new development in the ML and AI space. While we have previously delved into the complexities that such technologies pose for IP rights, this article addresses the current state of play concerning the enforcement of IP in the AI age as well as the most recent regulatory, policy and legal developments that have occurred in the IP and AI space in 2024 so far.

For more, see our series The IP in AI.

Regulation of AI & Protection of IP

As investment in AI systems continues to increase and the use of such systems becomes more widespread, governments and the courts are continuing to scrutinise how to strike the right balance under current IP laws, between encouraging investment in AI on the one hand, and protecting human creative efforts on the other. While the position regarding IP and AI rights remains far from settled, the following trends have emerged in 2024:

  • Can IP rights protect AI systems? Though it is theoretically possible for AI systems to be patented, there remain hurdles in most jurisdictions for the patentability of computer-implemented inventions, including, for example, for the AI system to be more than simply a digitised improvement to a known business process.1 Copyright protections in AI source code may be more readily available yet require extensive evidence from plaintiffs.
  • Can AI-generated inventions be patented? It is extremely likely that, without legislative reform, legislation across the world will continue to reject non-human inventors in patent applications. As seen in the Thaler test cases (including the most recent UK Supreme Court judgment), most courts are only willing to recognise natural persons as inventors – with the Australian Full Court of the Federal Court, the UK Supreme Court and European Patent Office all refusing to grant inventorship of a patent to Dr Thaler’s AI system. An unanswered question, however, is whether a human inventor may nonetheless be able to be identified in respect of AI-generated inventions.
  • Does copyright protect AI-generated works? AI systems will not generally be deemed authors of any works they produce. However, it remains a hotly contested question whether individuals who prompt an AI system might be considered to be an author (and therefore copyright owner) of AI-generated artworks. From early decisions, in many jurisdictions it appears that a user inputting simple prompts into an AI system is unlikely to be granted copyright protection, but a consistent approach to situations involving more a complex generation process (or where a user’s AI outcome reflects their “personalized expression”2) is yet to emerge.
  • Can AI infringe IP rights? As can be seen by the recent spate of litigation concerning the AI replication of newspaper styles,3 the voices of actors, and collection of images in AI training datasets,4 allegations of AI infringing IP rights are rapidly growing. While most litigation is ongoing, it is likely that proving infringement is possible but will rely on establishing the exact mechanisms of the AI system used as well as the extent of the objective similarity of any AI outputs to copyrighted materials.

Jurisdictional Updates

While Australia does not currently have any AI-specific regulation, it has demonstrated its eagerness to reform in this area during the early months of 2024. On 17 January 2024, the Australian Government released its interim response to the public consultation for its ‘Safe and Responsible AI in Australia’ Report.5 In response to its findings, the Minster for Industry and Science also announced a new Artificial Intelligence Expert Group created to advise on ensuring “transparency, testing and accountability” of AI systems.6

In parallel, in December 2023, the Australian Government established a Copyright and Artificial Intelligence Reference Group to “better prepare for future copyright challenges emerging from AI”.7 The initial focus of the Reference Group is the use of copyright material as inputs into AI systems, while future topics may include both copyright infringement by, and copyright protection of, outputs from AI systems.

Though the outcomes of such reports and committees remain purely theoretical at present, the Australian Government has demonstrated its commitment to policy reform in its recent 2024-2025 budget – which announces it will provide AUD$39.9 million over five years into developing policies to support the safe use of AI technology.8

During 2024, litigation concerning both AI inventorship and infringement of IP rights through AI systems has continued in the UK Courts. In particular, the final decision in the UK Thaler test case was recently determined by the UK Supreme Court – see here for summaries of the previous decisions. In the Supreme Court case,9 it was held that only a natural person can be recognised as a patent inventor and thus the AI system (DABUS) could not be entitled to inventorship rights.

The UK High Court is also set to hear argument in Getty Images v Stability AI – a case concerning the Stable Diffusion text-to-image tool alleged to have used ~12 million of Getty Images’ photos for its training purposes without permission – during summer 2025.10 This case was brought in 2023 (see previous summary here), with Stability AI filing its first defence in March 2024. The defence alleges not only that the potential ‘copying’ of the works took place outside the UK, but also that any images created by the AI based on text prompts does not recreate “any part of the copyrighted works” and that any copying that results from the insertion of an unlicensed image prompt by the user is not attributable to Stability AI. Alternatively, it argues it may rely on the pastiche exception found in the Copyright, Designs and Patents Act 1988.  

The E&W High Court in Emotional Perception11 also recognised artificial neural networks (ANNs) as patentable subject matter (see here for our previous blog post). This case concerned a patent application for an ANN, which ingested music tracks and used information including human perceptions and descriptions of the music to recommend similar tracks. While the Comptroller of Patents had held that such systems fell within the s.1(2)(c) exclusion of computer programs from patentability, Sir Anthony Mann found that the ANN software was not a computer program as it was not implementing human-controlled code by “operating at a different level” than the underlying software.12 This decision provides some support for the patentability of AI software, which is of particular relevance for companies involved in creating or investing in artificial intelligence tools.

In a similar vein to the UK litigation concerning AI infringement of copyright, the US has also seen a rise in creatives (predominantly writers and actors) commencing lawsuits against generative AI companies such as Open AI, ChatGPT and Microsoft. The most recent filing in this long list of complaints was made on 30 April 2024 by eight US newspapers (New York Daily News, Chicago Tribune, Orlando Sentinel, Sun-Sentinel, Mercury News, Denver Post, Orange Country Register and Pioneer Press) against Microsoft and Open AI.13 The plaintiffs allege that the Defendant “purloin[ed] millions of the Publishers’ copyrighted articles without permission and without payment to fuel the commercialization of their generative artificial intelligence products”.14 While most of these cases remain at the discovery stages, such decisions will be crucial to determining how AI may be seen to infringe copyright in the future. 

This is also particularly important in light of recent developments in deepfake AI technology, with Scarlett Johansson recently alleging that OpenAI copied her voice for its startup and other voice actors also threatening class actions against Lovo Inc for misappropriating their voiceovers using AI.15 While these issues remain un-litigated at present, they would present a significant expansion of the copyright protection afforded to individuals in light of AI technologies.

In terms of copyright protection afforded to AI-generated outputs, some recent decisions of the Copyright Office have provided early insight into the US position on the issue. In both Zarya of the Dawn and Theatre D'opera spatial, the US Copyright Office refused to recognise either AI-generated work as the product of human authorship, denying them both copyright registration. In Zarya, the Office held that the since the user (Ms. Kashtanova) relied heavily on the unpredictability of the images produced by the AI software Midjourney, such that her prompts did not evidence sufficient control or guidance over the outputs, they did not meet the requirement for human authorship.16 More recently, the Copyright Office also denied registration to Theatre D'opera spatial – an award-winning image generated by the artist Jason Allen using Midjourney. Despite Allen arguing that the image generation involved the use of at least 624 prompts and that he edited the output subsequently in Photoshop, the Copyright Office held the work contained more than a de minimus amount of AI content. Since Allen also refused to disclaim the AI contributions, the Office denied the work registration both initially and in a subsequent request for reconsideration.17

Beyond these initial decisions, the US approach is also expected to be clarified over the coming months in the 2024 US Copyright Office Report focusing on the impact of generative AI on policy. US Congress has also recently, as of April 2024, attempted to address such issues by introducing legislation which would mandate the disclosure of the copyrighted materials AI companies use to develop generative models. The Generative AI Copyright Disclosure Act would require companies to submit documents containing the copyrighted works used in training datasets to the Copyright Office at least 30 days prior to the release of their AI software. This would enable the Office to create a public database of the notices, such that creators could search and determine if their work has been included without a licence.

The first ruling in the European Union on the copyright protection afforded to AI-generated works was handed down in the Czech Municipal Court of Prague during April 2024 (see here for our previous blog post on the decision). The case concerned a claimant who created an image using DALL-E, published it on his website, and began an action for copyright infringement when the defendant used the same image on its own website. The Court ultimately dismissed the case on procedural grounds and, unsurprisingly, held that AI could not be an author of copyright. However, it also left open the possibility that a sophisticated prompt could constitute a “unique creative contribution” which may be sufficient to allow the (human) user to obtain copyright in the AI output. Whilst this decision is far from conclusive on the protection of AI-generated works in the EU, it provides some insight into the importance of user prompts in establishing human authorship of those works.

After first being proposed by the European Commission in April 2021, the text of the EU AI Act was also finally approved by the Council of the European Union (the final step in the legislative process for the creation of EU laws) on 21 May 2024. The culmination of three years of adjustment and debate, the Act is the “first of its kind in the world”18 – in that it legislates for safe and transparent AI practices alongside the preservation of important rights for individuals. The Act generally approaches AI regulation from a risk-based perspective, whereby high-risk AI practices are subject to stricter regulation. The Act is expected to enter into force twenty days after its publication in the EU Official Journal in the coming days.

  1. Reflecting the UK position on patentability of computer programs. For analysis of the barriers to patentability in other jurisdictions, see our article.
  2. (2023) Jing 0491 Min Chu No. 11279], 27 November 2023 (Beijing Internet Court Civil Judgment).
  3. Daily News LP v Microsoft Corporation, 1:24-cv-03285, (S.D.N.Y.).
  4. Getty Images (US) et al., v Stability AI Ltd [2023] EWHC 3090.
  5. Australian Government, ‘Safe and responsible AI in Australia Consultation: Government’s Interim Response’ (Canberra: Commonwealth of Australia, 2024).
  6. The Hon Ed Husic MP, ‘New Artificial Intelligence Expert Group’ (Minister for Industry and Science, 14 February 2024).
  7. Attorney-General’s Department, ‘Copyright and Artificial Intelligence Reference Group’, 5 December 2023.
  8. Australian Government, ‘Budget 2024-25’ (Canberra: Commonwealth of Australia, 2024), 141.
  9. Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49.
  10. Getty Images (US) et al., v Stability AI Ltd [2023] EWHC 3090.
  11. Emotional Perception AI Ltd v Comptroller-General of Patents, Designs, and Trade Marks [2023] EWHC 2948 (Ch) (‘Emotional Perception’).
  12. Ibid.
  13. Daily News LP v Microsoft Corporation, 1:24-cv-03285 (S.D.N.Y.).
  14. Ibid, [1].
  15. Lehrman v. Lovo Inc., S.D.N.Y., No. 1:24-cv-03770.
  16. Here.
  17. Here.
  18. Council of the European Union, ‘Artificial Intelligence (AI) act: Council gives final green light to the first worldwide rules on AI’ (Press Release, 21 May 2024) accessible here.

The IP in AI – What you need to know

With AI sending waves throughout the business world, we explain the salient role of intellectual property in regulating the technology and protecting the rights of inventors.

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