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WIPO Public Consultation on AI and IP

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The World Intellectual Property Organization has launched a public consultation process on artificial intelligence and intellectual property policy, inviting feedback on an issues paper designed to help define the most-pressing questions likely to face IP policy makers as AI increases in importance.

In January 2019, WIPO issued a study that surveyed the landscape of AI innovation. The WIPO Technology Trends report offers evidence-based projections to inform global policymakers on the future of AI. Subsequently, in September 2019, WIPO held a Conversation on IP and Al bringing together member states and other stakeholders to discuss the impact of Al on IP policy, with a view to collectively formulating the questions that policymakers need to ask.

On 13th December 2019, WIPO published its issues paper with a call for comments from the widest-possible global audience. It is the latest step in WIPO’s response to the ongoing interaction of AI with the IP system, including the use of AI applications in IP administration.

Kats with pens and opinions
Image: Kristine Paulus

The issues identified for discussion are divided into the following areas, although you may comment on any or all of the questions in the paper:

(a) Patents
Looking at issues around Inventorship and Ownership, Patentable Subject Matter and Patentability Guidelines, Inventive Step or Non-Obviousness, Disclosure and General Policy Considerations for the Patent System.

(b) Copyright
Considering Authorship and Ownership, Infringement and Exceptions, Deep Fakes, and General Policy Issues.

(c) Data
Specifically thinking about Further Rights in Relation to Data.

(d) Designs
Considering Authorship and Ownership.

(e) Technology Gap and Capacity Building
Asking what policy measures in the field of IP policy might be envisaged that may contribute to the containment or the reduction in the technology gap in AI capacity? Are any such measures of a practical nature or a policy nature?

(f) Accountability for IP Administrative Decisions

Asking should any policy or practical measures be taken to ensure accountability for decisions made in the prosecution and administration of IP applications where those decisions are taken by AI applications (for example, the encouragement of transparency with respect to the use of AI and in relation to the technology used)? And do any legislative changes need to be envisaged to facilitate decision-making by AI applications (for example, reviewing legislative provisions on powers and discretions of certain designated officials)?

The deadline to submit your is 14th February 2020.

See full press release here.

Respond to the consulation here.

In your submission, please include your name, title and the name of your entity if you represent one.
The preferred format of your submission is PDF or WORD. All submissions will be posted on the WIPO website.

[Guest Post] IP and AI - the debate continues, this time at WIPO

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Thanks to Katharine Stephens (Bird & Bird) for this guest post:

On 27 September 2019, WIPO held a Conversation on IP and AI; a fascinating day of presentations and discussion on the impact of AI on IP systems, IP policies, IP rights management and international cooperation on IP matters. The list of presentations and the presenters' biographies give you a view of the breadth and depth of the discussion. However, this report has to start with an apology as it reports on the legal discussions only and in the very briefest terms and misses out all mention of the presentations on the use of AI by the EPO and other patent offices.

Francis Gurry, Director General of WIPO, opened the day by stressing the need to engage now with the issues raised by AI, noting that Governments are starting to engage on strategy, opening up data for commercial use, and the need for regulation. The day's "conversation", together with WIPO's recently published landscape of the patent data in AI and its development of tools using AI applications for administration of IP (which were described and in some instances demonstrated during the course of the day), was all part of WIPO's engagement with those issues.

The impact of AI on the IP system and IP policy

There was a very upbeat note sounded by Andrei Iancu, Under Secretary of Commerce for IP and Director of USPTO, at the start of the first panel discussion. AI has the potential to be the most disruptive technology we will see in our lifetime, but that does not mean that it has to be seen in a negative way and we were asked to consider some of the many positive examples of AI, such as personalised medicine. As to policy, AI raises hugely important questions on IP law. For example, if a machine invents, is it an inventor? If it is, who owns the IP? As AI innovations are a black box, how does that satisfy the requirements for disclosure? Is a new right needed to protect the datasets used to train AI systems so that companies are encouraged to share them? These are just some of the questionson which the USPTO has requested comments (deadline for responses extended to November 8, 2019).

In the same session, Nuria Oliver, Chief Data Scientist in Data-Pop Alliance and Chief Scientific Advisor to the Vodafone Institute, noted that the way AI-generated content was not only dependent on the data input (the same algorithm might generate a work of art or a cartoon depending on the input), but was something of a black box. This was echoed by Zeng Zhihua, Director General in Automation Department and Patent Examination Cooperation Guang Dong Center, CNIPA. In particular, Zeng noted that if AI was to be used by patent offices, its decision-making processes had to be transparent.

AI and patents

Belinda Gascoyne, Senior IP Law Counsel, IBM, noted that IP laws were written when there was only a human author in contemplation. These are now being put to the test; for example, the University of Surrey has announcedthat its creation machine, DABUS, is named as the inventor of a new food container, the subject of patent application GB1816909.4. Belinda also discussed the issue of the patentability criteria for AI-related inventions and the lack of coherence as between countries and even within some countries as between patent office and courts. She noted that the EPO had amended its Guidelines for Examination in November 2018 to include a section dealing with AI, but the referral pending before the EPO's Enlarged Board of Appeal in G01/19could pose a threat to the stability of the test of what is patentable in Europe. Belinda agreed with AIPPI's 2017 resolution on the patentability of computer implemented inventions ("CIIs") which stated that "patents should be available, and patent rights enjoyable, without discrimination for inventions in all fields of technology, including CIIs". This was echoed in the "refreshing" approach taken by the JPO in their recently updated examination guidance and the case examples pertinent to AI-related technology.

Beat Weibel, Chief IP Counsel, Siemens, contrasted new inventions that incorporate AI technology and inventions made by AI. The former were CIIs and should not be treated any differently from normal CII inventions. AI-generated inventions should be patentable, but the question was who should be the inventor? One could "pretend" that a natural person is the inventor (not a good solution in the long run); or nominate a machine as an inventor (also not a good solution as machines do not have rights or duties); or, and this was his preferred solution, expand the definition of inventor to include the legal person who controls the AI system.

Zhixiang Liang, Vice President and General Counsel, Baidu, underlined the need to ensure respect for data privacy and safety. He referred to the book 'AI Superpowers' and noted that AI, for a big company such as Baidu, meant super-responsibility.

Socio-economic and ethical impacts of AI

The IPO's Chief Executive and Comptroller General, Tim Moss, moderated the third panel. Nuria Oliver again spoke and introduced us to the acronym FATEN to describe 5 dimensions of the ethical principles raised by AI, namely:

F: fairness

A: (human) autonomy and accountability

T: trust and transparency

E: (b)eneficience, education and equality

N: non-maleficience.

Tom Ogada, Executive Director, African Centre for Technology Studies, rightly warned the audience about the widening technology gap between countries and was hopeful that, not only could AI improve productivity, but that it could also increase numbers of jobs.

AI and copyright

In the afternoon we were treated to a discussion on whether AI will change human creativity and how AI-generated works should be protected, chaired by Karyn Temple, Register of Copyrights and Director, US Copyright Office.

Pierre Sirinelli, Professor of Private Law and Criminal Science at the University of Paris took us through the arguments on whether copyright exists in AI created works. His starting point was that the form and identity of a work produced by an AI system was the same as one created by a human. However, if we maintain that originality is an imprint of personality then such a work will not be protected. Although it might be possible to sidestep that test by saying that an author makes arbitrary choices and a machine does the same thing, this would ultimately not work because people make subjective decisions whereas machines are cold and objective. Looking to countries where a work receives copyright when effort and investment is made, this still does not help because that effort and investment goes into creating the AI system, not the work which is generated by the press of a button. Another problem in the copyright system is that a work has to come from a physical person. It might, again, be possible to get around this requirement by looking at those copyright systems which immediately transfer copyright such as, in an employment scenario, from the employee to the employer. However, this is still not a solution since there is no person creating the work and so no one who can make the transfer. He concluded that if we want protection for AI-generated works, we must either find a right outside copyright – a new sui generis right – or abolish the link to a physical person within our copyright rules.

Pravin Anand, Managing Partner, Anand and Anand, started by telling us that the Indian courts have considered that idols and animals are legal entities for the purpose of owning copyright. If an animal or idol can be a person for the purposes of copyright then a machine should also qualify. He backed this up by considering a number of deeming provisions under Indian law: the author of a film is the person who took the initiative and took responsibility for its creation; in relation to computer-generated works, the author is the person who has caused the work to be created; and an employer owns a work created by an employee in the course of his/her employment. He thought that a similar deeming provision could be used for AI.

Andres Guadamuz, Senior Lecturer in Intellectual Property Law, the University of Sussex and author of "Do androids dream of electric copyright?", asked the question: since machines are getting so good at creating works, if those works remain in the public domain, what will happen to works generated by human authors? Will the humans be able to compete in the marketplace? He plays a game with his students which he calls "bot or not" where he shows them photos and paintings and plays music and reads poems to them. Over the last 5 years, the students had found it increasingly difficult to identify those works created by a human and those created by AI. He concluded that the UK has the best system to deal with AI-generated works under section 9(3) CDPA 1988 which provides that copyright in a computer-generated work goes to the person by whom the arrangements necessary for the creation of the work are undertaken. Similar provisions also exist in Ireland, NZ and in India.

Kats, of course, dream of regular sheep (and mice)

Tobias McKenney, Associate Copyright Counsel, Google, noted that the text and data mining ("TDM") exception was a very important touchpoint when considering whether the underlying data should be open to all. Questions that have to be borne in mind are: is AI safe and is it discriminatory? How do you answer those questions? Looking at the process does not answer the question of whether the output is safe. The big debate at the moment is how to make sure that AI is explainable. He gave the example of a complaint that had been made about Quick, Draw!, a game where the computer tries to guess what you are drawing. The more it is used, the better the machine learning gets. At one point, and to Google's surprise, a user complained that it was biased because, although it was good at recognising drawings of sneakers, it was bad at recognising high heeled shoes and ballerina shoes. But bias can be much more serious than that and Tobias gave us three points to consider:

If data in the public domain, such as literary works written before 1870, are used in the input to an AI system, think about what those works may say about gender and race.
If you need to demonstrate safety and reliability of an AI system, you cannot have a TDM exception which requires you to destroy data immediately after it has been used.
Datasets have to be observable and if copyright laws make that an infringement, then, again, how can you show that an AI system is not biased?

AI and data

Erich Andersen, Corporate VP and Chief IP Counsel, Microsoft, started the debate on data protection and free flow of data by pointing out that we needed to think about privacy law as a 'new' protection for data. Microsoft had drafted three data sharing agreementswhich had been annotated with lots of helpful legal points in an effort to remove barriers and empower people and organisations to share and use data more effectively.

Jonathan Osha, Reporter General of AIPPI, had asked AIPPI's members whether a new right was needed to protect data used in AI systems; and to his surprise they were split 50:50. To get to a solution, therefore, he realised that the question had to be more specific i.e. are we talking about vast pools of unstructured data or training data? Each scenario raises different IP questions and the balancing of different interests such as increasing innovation, societal benefits and privacy issues. The question of whether to create a new right is going to be the subject of an AIPPI study question for next year. AIPPI's resolution on copyright in AI-generated works is about to be published (spoiler alert - see the IPKat's report of the debate at the AIPPI Congress on this topic).

Andreas Wiebe, Chair for Civil Law, Intellectual Property Law, Media Law and Information and Communications Technology Law, University of Göttinger, pointed out that there was

no copyright in raw data, although it could be protected by confidentiality. Data is produced whether there is a right in it or not therefore there was no need to incentivize its creation. The question was whether we need a new right to protect data on disclosure. The other big issue was allowing access to data. He was of the view that a compulsory licence was going too far and that competition law would probably not help as it was difficult to say whether data gives market power/ dominance. He therefore queried what could be done now to support markets in their developments of AI.

Virginie Fossoul, Legal and Policy Officer, European Commission Directorate-General for the Internal Market, Industry, Entrepreneurship and SMEs noted the importance of open data. She warned that creating a new right was very complicated as it required a balancing exercise between competing interests and warned against rushing into legislation. It was an extreme option to say there should be compulsory licencing as in the payment services directive. She also referred to the directive on reuse of public sector data, but noted that it was very difficult to find a horizontal solution across all sectors. It was better to foster sharing without legislation until we were better able to understand the markets.

Erich then picked up on the TMD exception in the directive on copyright and related rights in the digital single market. Data is the fuel for AI and therefore it is important that society has access to data, particularly in the medical field where a number of breakthroughs have been made by looking at big datasets. Ursula Von der Leyen had made the fuelling of modern innovations one of the planks of her agendafor her presidency of the European Commission, whilst also noting that a balance needed to be struck between the free flow of data and privacy issues. To this end, an enormous amount of research is going into anonymising data and Microsoft had just announcedthat they were working on an open data differential privacy platform. (This is where the technology does not strip out personal data, rather it does something similar to inserting white noise into the data so that it is anonymised). He finished by noting that researchers need to work with Governments to find safe-harbours so that they can be confident that they are working within the law.

The final word went to Andreas who turned to a very apt quote from Stephen Hawking: "Whereas the short-term impact of AI depends on who controls it, the long-term impact depends on whether it can be controlled at all."

In closing the day's conversation, Francis Gurry thanked the presenters for their invaluable input to the debate and stated that there would be questions on these issues published for consultation in either October or November of this year.

WIPO v WIPD: some good news at last

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The auditors did warn WIPO that its building budget
was going to be at the expense of its ageing rapid
response Central Europe dot.biz tank squad

Some dedicated readers -- almost all, judging by the IPKat's mailbox -- have been following the saga of WIPO v WIPD (see earlier posts here, here and here) and who have been wondering what, if anything, the World Intellectual Property Organization has been doing to snuff out the imitation website of the World Intellectual Property Database. For these dedicated souls, the Kat can report that some positive tidings have drifted over the tops of breeze-ruffled palms of Lac Léman, framed by the splendour of the snow-garnished Alps. At last the truth is out: WIPO is not sleeping on the job. The IPKat has been in communion with a very helpful WIPO spokesperson who had contacted him in order to set the record straight. From this unrivalled source the Kat has gleaned the following information:

• “Wipd.biz” is not just a tiny two-bit fly-by-night internet nasty but a highly organized and persistent fraud operation, against which the WIPO Secretariat has been engaging its efforts as soon as the problem came to WIPO's attention in the autumn of 2010;
• Initial actions included sending cease and desist letters -- but, as we now know, WIPD neither ceased nor desisted;
• WIPO has also alerted the users of its international filing and registration services, who are the intended targets of the fraud (the organization routinely warns users of its international filing and registration services against scams and frauds and, as the Kat has previously noted, it does keep and update information about fee-request scams on its website. It also warns folk about recruitment scams -- something the Kat didn't know about;
WIPO's Swiss Guards train for the invasion of Czech cyberspace

• Simultaneously with these other measures, the WIPO Secretariat has initiated consultations with the national authorities of the Czech Republic, where the site is hosted. The Kat guesses that the Czechs, being good, sweet folk who like a decent beer as much as he does, must be quite uncomfortable about all this, since they also host EURid's dispute resolution body -- which can deal with .eu problems but not .biz

• WIPO is cuurrently "pursuing further legal options" to end the fraud;
• The WIPO spokesperson emphasised that the organisation was very concerned to reassure stakeholders and the whole IP community that WIPO takes this – and any other identity theft or action that deceives or misleads its stakeholders – extremely seriously, and that it was and continues to remain highly active in dealing with this crafty and sophisticated foe;
• The WIPO Secretariat is ready to use the full extent of any legal system to protect its stakeholders and its reputation. The previous comparable case was in 2009, when WIPO cooperated with the Florida authorities in a successful legal action against a Florida-based company which was sending out by mass mail misleading “invoices” to patent and trade mark applicants—including users of WIPO’s Patent Cooperation Treaty. The company was found to have violated the state's Deceptive and Unfair Trade Practices Act.

Speaking strictly off the record, the spokesperson expressed regret that WIPO had been slow to comment on the IPKat's posts on this matter, but "this should by no means be misinterpreted as a lack of concern or inaction". Sources close to the top have let it slip that there is a delicate protocol issue to overcome. WIPO has a big book that tells its top brass how to address diplomats, ambassadors and members of the Royal Family, but there is no formal precedent that deals with the right way to address an email to a fictional cat. Now that this issue has been cunningly side-stepped by use of the telephone, diplomatic relations have been informally established and the security guards have been instructed to leave a bowl of milk at the front door in case the Kat should spring a surprise visit to Geneva ...

Merpel adds, let's all get behind WIPO and cheer them on in this battle. It's not often that I cheer the big guy on in a tussle against a smaller foe, but I'm making an exception this time.

Will WIPO wither and die on the choking vine of ... development?

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A new lobbying tactic from the
pro-patent group in WIPO?

One of the keenest observers of the international IP scene is Intellectual Property Watch's William New. In "US Ambassador: Over-Focus On Development “Will Kill” WIPO", which he posted here last Friday, William gave an account of the strikingly outspoken statement by United States Ambassador to the United Nations Betty King [full text here] that the World Intellectual Property Organization (WIPO) "is headed in a controversial direction", warning that "a focus on development at the expense of protection of intellectual property rights will mean the end of the agency". She is quoted as saying

"If we get to a system where the protections of patents are abrogated in the name of development, then we certainly will kill that organization. So I worry very much about that”.

The remark, the author gently suggest is possibly a reflection that the 2007 WIPO Development Agenda intended to ensure WIPO is development-friendly, is having the more profound effect on the United Nations body’s activities sought by the Agenda’s proponents. King is said to have taken aim particularly at the recently formed Development Agenda Group, which includes the fast-growing [and IP-agnostic, queries Merpel?] economies of Brazil, Egypt, India, Indonesia and South Africa.

Says the Kat, don't worry Betty, no-one has to sign up to anything they don't want to, and patent protection will only be abrogated if you want it to be. All WIPO treaties remain consensual. When developing nations try to get the upper hand, for example in the Washington Treaty on Intellectual Property in Respect of Integrated Circuits when the developing nations rather liked the idea of compulsory licensing of chip topographies, the result is that nothing happens. The same was the case with the attempts to put forward the UNCTAD Code on the Transfer of Technology in the 1980s, in which a large body of developing countries wanted advantageous terms such as the unbundling of licensed technology and warranties that it actually worked. And when IP-rich countries don't feel that the existing international order is capable of supporting their requirements, they are perfectly capable of going off and doing an ACTA. More to the point, if patent-rich countries can't come to the table and argue persuasively that their view is preferable to the more unpalatable bits of the development agenda, they have only themselves to blame.

Betty King International Diplomat here
Betty King International Ministries here
The goose that laid the golden eggs here