DOI: https://doi.org/10.62204/2336-498X-2025-2-18

FEATURES OF THE USE OF ARTIFICIAL INTELLIGENCE IN THE FIELD OF INDUSTRIAL PROPERTY

 

Anna Pakhomova,
Ph.D. in Law, Associate Professor,
Bila Tserkva National Agrarian University, Ukraine,
pakhomova_a@ukr.net; ORCID: 0000-0003-2292-9315

Iuliia Iarmolenko,
Ph.D. in Law, Associate Professor,
Bila Tserkva National Agrarian University, Ukraine,
iuliia.iarmolenko@btsau.edu.ua; ORCID: 0000-0002-1814-5828

 

Annotation. This article is devoted to analyzing the specifics of determining ownership rights to objects created by artificial intelligence in the context of industrial property. We will consider the experience of foreign countries, existing legal gaps, potential regulatory models, and the challenges faced by modern legislation in its attempts to adapt to this new reality. The goal is to outline key problem areas and find ways to solve them in order to form an effective and fair system of intellectual property protection in the era of artificial intelligence.

Keywords: artificial intelligence, national legislation, legal regulation, international legis- lation, intellectual property rights, industrial property.

Analysis of Recent Research and Publications. The rapid growth of artificial intelligence capabilities is radically changing our world, penetrating all spheres of human activity, including creative ones. Today, artificial intelligence (AI) systems are capable of generating complex algorithms, works of art, musical compositions, and even innovative technical solutions that were previously the exclusive prerogative of humans. This creates unprecedented challenges for the existing legal system, especially in terms of regulating ownership rights to objects created by artificial intelligence.

Traditional approaches to defining intellectual property rights, based on the concept of human authorship and invention, are proving insufficient in situations where the creator is an algorithm rather than a natural or legal person. This issue is particularly acute in the field of industrial property, where innovation and invention are the driving forces of economic progress. The lack of a clear legal mechanism to protect such objects may hinder the further development of new technologies based on artificial intelligence, reduce investment attractiveness, and create legal uncertainty for developers, users, and potential owners.

The rapid progress and widespread use of artificial intelligence technology raises a number of questions, including whether artificial intelligence can create intellectual property. There is still much debate about the legal implications of using such technologies around the world, meaning that there is no consensus and no universal solution. One of the main questions is whether the use of artificial intelligence technology constitutes intellectual activity, or whether only humans are capable of creative activity, as emphasized in the doctrine by reference to the basic concept of personal non-property rights—rights that are inextricably linked to the personality of the author (the right of authorship, the author’s right to a name, the right to the integrity of the work, the right to be recognized as the author of an invention, utility model, or industrial design, and the inventor’s right to be named as such in a patent). Equally important is the question of whether the result of intellectual activity arises when an object that has all the characteristics of an intellectual property object is created entirely autonomously by artificial intelligence, or, alternatively, when artificial intelligence technology controlled and used by a human being is applied in the creation of such an object. Accordingly, there is a need to determine who owns the rights to the created result and what kind of rights they have.

The purpose of intellectual property protection is to encourage creative and innovative activity by granting exclusive rights in the market in conjunction with the protection of personal non-property rights. In addition, it is assumed that this combination of rights contributes to both the economic and social development of states. However, at the same time, there is a need for society to have access to objects protected by these rights. In this regard, the main purpose of intellectual property legislation is to ensure a fair balance between the private interests of rights holders on the one hand and the need for public access on the other.

The problems of AI development are given considerable attention by those who shape the technological component of global development—Elon Musk, Stephen Hawking, Mark Zuckerberg, Joseph Bezos, not to mention the specialists currently engaged in AI development in the world’s leading laboratories and institutes.

The issues of legislative regulation of the use and regulation of AI are relatively new in jurisprudence at both the international and national levels. Nevertheless, the issue of legal regulation of AI, particularly in relation to international regulation of AI, is the subject of research by a wide range of scholars: S.R. Airyan, G.O. Androshchuk, N.A. Vinnikova, I.M. Gorodysky, Yu. Danilenko, M. Karchevsky, O. Kryvets, G.A. Prokhaska,

1. Radutny, M. Kharina, O.O. Khorvatova, and others.The World Intellectual Property Organization, as an international organization whose activities are to some extent related to the study of modern technologies, emphasizes the relevance of the question of where the line should be drawn between human and machine creativity, i.e., what should be the extent of human contribution or participation for the result of the work to belong to the first or second category mentioned above [1].

Research results. Taking into account WIPO’s mission to promote inventive and creative activity for the economic, social, and cultural development of all member states, they asked it to provide a platform for discussing artificial intelligence and intellectual property policy. The current “WIPO discussion” is the first stage of this process.

An analysis of foreign experience in regulating intellectual property relations implemented using artificial intelligence is important, as artificial intelligence technology is widely used in various industries around the world and affects various areas of creativity.

It is proposed to base the study on the organizational and legal approaches to the issues considered in the EU, the UK, and the US due to the peculiarities of national legal regulation of intellectual property protection created by artificial intelligence.

The UK has some cool stuff going on when it comes to regulating intellectual property using artificial intelligence. Based on the fact that artificial intelligence has already been trained to invent, the UK is discussing the need to change the existing structure of intellectual property law [2, p. 60].

Under current UK patent law, only a natural person (i.e., a human being) can and must be named as the “inventor” in a patent application (Section 7 of the UK Patents Act 1977) [3]. This rule has recently been reflected in various decisions concerning patent applications for inventions created using an artificial intelligence system called DABUS. Dr. Stephen Thaler, the author of the DABUS system, filed patent applications on his own behalf but named DABUS as the inventor. The applications were rejected by the UK Intellectual Property Office (UKIPO), the European Patent Office, and the US Patent and Trademark Office. The regulatory framework applied by all three intellectual property offices requires that the inventor be a human being; accordingly, artificial intelligence systems cannot be inventors, so a patent cannot exist for technology that creates or “invents” artificial intelligence [4].

Dr. Taler challenged the UKIPO’s decision in the English courts. However, the court upheld the UKIPO’s decision. The court explained that the fact that DABUS is not a natural person is a general ground, so any patent application in which DABUS is named as the inventor is doomed to failure.

Although the law does not prohibit taking into account the technological specifics of the implementation of relations, the court in the DABUS case noted that there are grounds for arguments in favor of the owner of an artificial intelligence system that invents something being named as the inventor: It would be much easier to argue that Dr. Thaler was entitled to the invention and the patent… because he (Dr. Thaler) owned the machine that made the invention. This approach can be borrowed from copyright law.

The question of recognizing exclusive rights to “works” as copyright objects created by artificial intelligence requires reference to UK copyright law.

The UK Copyright, Designs and Patents Act (CDPA) 1988 generally provides protection for literary, dramatic, musical, and artistic works. A computer program (program code) may also be a protected work, which is classified for protection purposes as a literary work and is an example of the result of intellectual activity that can be created using artificial intelligence [5].

As a rule, copyright laws require a certain degree of creativity created by a human being (given that copyright objects are primarily the results of intellectual activity). However, in the United Kingdom, there is a special category for computer-generated works, subject to the requirements of originality, which can be applied to the results of artificial intelligence aimed at creating intellectual property objects. According to paragraph 1 of Article 9 of the CDPA, the author is the person who created the work.

At the same time, paragraph 3 of Article 9 of the Law indicates that in the case of a literary, dramatic, musical, or artistic work created with the help of a computer, the author is considered to be the person who takes the measures necessary to create the work.

This means that the work must be the result of the author’s free and creative choice and reflect his or her personal approach. This approach can essentially be applied by analogy to works created with the help of artificial intelligence [6].

As for the UK leaving the EU (Brexit), this shouldn’t affect the protection of intellectual property rights available in the UK. Indeed, the fundamental provisions of patent and copyright law are enshrined in international treaties independent of the EU (in particular, in the European Patent Convention, which applies not only to EU countries). As for national intellectual property rights in the UK, the existing systems for protecting and enforcing these rights will remain unchanged.

In the UK, patentability is regulated by the Patents Act 1977, which was adopted in implementation of the European Patent Convention. In general, the UK courts seek to follow the decisions of the European Patent Office’s Boards of Appeal, and the European Patent Office’s Guidelines for Examination and the case law of the Boards of Appeal are the sources of key regulatory principles. The European Patent Office has recently added specific guidance on artificial intelligence to its Guidelines. As in other key jurisdictions (e.g., Japan, Korea, and the US), algorithms themselves face significant patentability challenges. The European Patent Office takes the approach that computational models and artificial intelligence algorithms are excluded from patentability unless they constitute a computer program that has an “additional technical effect” beyond the “normal” physical interaction between the program and the computer on which it is executed (point G-II- 3.6 of the European Patent Office’s Guidelines for Examination).

At the same time, there are no specific obstacles to protecting artificial intelligence technology as a trade secret (know-how) through commercial secrecy (which is also permitted by British law based on common law provisions brought into line with the provisions of Directive 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and information (trade secrets) in accordance with the provisions of Directive 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use, and disclosure). Such protection is justified when reverse engineering is practically impossible with regard to artificial intelligence technology.

Thus, UK law rightly allows for the reverse situation, where the artificial intelligence technology itself is subject to patent protection or protection under trade secrets and commercial secrecy. In this context, it is important to understand the owner of artificial intelligence technology as the owner to whom a claim may be made regarding the infringement of intellectual and other rights of third parties (if the technology has no other users responsible for its actions).

In the context of analyzing regulatory approaches to regulating relations involving the use of artificial intelligence technology, the experience of the European Union is noteworthy as an example of the unification of standards at the regional level. The EU is currently increasing its investment in the development of artificial intelligence technologies, expanding their scope of application across the board.

In 1991, the International Association for Artificial Intelligence and Law was established. One of the first resolutions in this area was Resolution 2015/2103 (INL)

«Civil Law Rules on Robotics,» adopted by the European Parliament on February 16, 2017. It recommended that the European Commission create a legal framework for the application of AI, establish a mechanism for registering AI systems, and introduce civil liability for damage caused by AI [7].

When considering the question of whether exclusive rights to copyrighted works created by artificial intelligence are recognized, we refer to Article 2 of Directive 2009/24/EC of April 23, 2009, “On the legal protection of computer programs,” as well as Article 4 of Directive 96/9/EC of the European Parliament and of the Council of March 11, 1996, on the legal protection of databases, in which the author is indicated as a natural person or group of natural persons who created the object, implying the human factor. Furthermore, despite the fact that the concept of originality as it relates to copyrighted works is not clearly defined in European legislation, in some documents originality is also linked to natural persons or human qualities. Article 2 of Directive 2001/84/EC of September 27, 2001, “On the resale right for the benefit of the author of an original work of art,” mentions individuals (artists) as creators, while Directive 2006/116/EC of the European Parliament and of the Council of December 12, 2006, “On the term of protection of copyright and certain related rights,”27 refers to the human factor (“personality”). In addition, paragraph 3 of Article 1 of Directive 2009/24/ EC of 23 April 2009 on the legal protection of computer programs, paragraph 15 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, as well as paragraph 16 of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 “On the term of protection of copyright and certain related rights” (regarding photographs) indicate “the author’s own intellectual creativity” as the only criterion to be taken into account in assessing originality [8].

Therefore, in order to be protected by copyright, an object must be closely related to the author’s personality. Based on this criterion, many scientists believe that, according to current legislation, works created by artificial intelligence are not protected by copyright. This is because works created exclusively with the help of artificial intelligence technology cannot be considered original from the point of view of copyright law, since they lack the human factor.

Paragraph 18 of the European Parliament Resolution of February 16, 2017 “On the civil law provisions relating to robotics” emphasizes that, since there are currently no specific legal provisions governing robotics, the existing legal framework may be applied to this area, taking into account certain aspects. At the same time, it emphasizes the need to support the development of a technology-neutral approach to intellectual property law in areas where robotics technologies could potentially be implemented.

The principle of technological neutrality means applying existing legislation to new “technological” relationships. In this case, the objective need to adopt new documents will likely be minimized, and the rules and regulations adopted will be neutral with regard to the technologies used.

EU legislation does not contain any provisions preventing the granting of patents for inventions created using artificial intelligence technologies, provided that the invention is patentable. According to paragraph 1 of Article 52 of the European Patent Convention of 1973, European patents may be granted for any inventions that are new, involve an inventive step, and are industrially applicable (i.e., if it does not follow from the state of the art for a person skilled in the art). In addition, a European patent application must disclose the essence of the invention clearly and completely enough so that the invention can be carried out by a person skilled in art (Article 83 of the European Patent Convention of 1973). created by artificial intelligence technology. However, this convention does not define the term “person skilled in the art,” which causes difficulties. The most difficult task is to determine the capabilities of artificial intelligence technology (which in this case is a tool). It is difficult to imagine how patent offices, and even judges, will determine whether a skilled person could have created a specific technical solution using this tool. It is even more difficult to determine the capabilities of artificial intelligence, since the results of artificial intelligence technology are difficult to predict [9, p. 68].

In October 2020, the European Parliament adopted three important documents regulating various areas of relations within the framework of artificial intelligence technology: Resolution of October 20, 2020 “Ethical principles in the field of artificial intelligence, robotics and related technologies”, dedicated to ethical approaches in the field of regulating relations related to the implementation of artificial intelligence technologies; Resolution of October 20, 2020, “Civil liability regime arising from the use of artificial intelligence technology,” dedicated to civil liability for damage caused by artificial intelligence technology, and also considers the issue of intellectual property rights to works created directly by or with the help of artificial intelligence; Resolution of October 20, 2020, “On intellectual rights in the field of artificial intelligence technology development,” which contains approaches to regulating relations in the context of the interconnection between artificial intelligence and intellectual rights.

These European Parliament resolutions are particularly important because they not only identify areas of relations that can be implemented using artificial intelligence and identify potential problems but also contain specific proposals for the legislative regulation of controversial issues.

The European Parliament also enshrined in these resolutions the concept of an artificial intelligence system (point “a” of Article 4 of the Regulation, the text of which is contained in the Resolution of October 20, 2020 “Ethical principles in the field of artificial intelligence, robotics and related technologies”, as well as point ‘a’ of Article 3 of the Regulation, the text of which is contained in the Resolution of 20 October 2020 “Civil liability regime arising from the use of artificial intelligence technology”) [10].

Thus, an artificial intelligence system or artificial intelligence is understood to be a system that is software or hardware that reflects behavior that mimics intelligence, including by collecting and processing data, analyzing and interpreting the information obtained, and is endowed with autonomy to perform any actions to achieve specific goals.

It is emphasized that artificial intelligence technology has neither legal capacity nor human intelligence. The only task set for this technology is to serve humans (subparagraph 6 of paragraph “B” of the Resolution of October 20, 2020, “Civil liability regime arising from the use of artificial intelligence technology”).

EU legislation distinguishes between works created by humans with the help of artificial intelligence (AI-assisted human creations) and works created directly by artificial intelligence (AI-generated creations). The European Parliament has proposed the following approach: in cases where artificial intelligence technology was an auxiliary tool in the creation process, the current EU intellectual property legislation applies (para. 14 of the Resolution of October 20, 2020, “On intellectual rights for the development of artificial intelligence technologies”).

At the same time, in paragraph 15 of the above-mentioned Resolution, the European Parliament notes that certain technical solutions created with the help of artificial intelligence technology should be protected in accordance with the new intellectual property legal framework in order to stimulate investment in this form of creation and to support inventors. However, no special regulation is envisaged. It is noted that works created directly by artificial intelligence technology (robots) may not be protected by copyright due to the absence of a human author. In order to comply with the principle of originality, which requires a connection to a natural person, and because the concept of “creative contribution” implies the personality of the author, it is emphasized that it is necessary to comply with the general provisions on copyright for works created by artificial intelligence based on the principle of technological neutrality if such works are subject to copyright protection; it is recommended that intellectual property rights be granted to the natural or legal person who created the work on a legal basis and only if the copyright holder’s permission has been obtained, if the copyrighted material is used in the creation of a new work, and if no copyright exceptions or limitations apply; the need to simplify access to and exchange of data, open standards, and open source technologies while encouraging investment and stimulating innovation is emphasized.

Taking into account the analysis of foreign legislation and considering the fact that in some countries, such as the United States, legal entities can be recognized not only as copyright holders but also as authors of works (when creating works for hire), the concept of legal fiction of a legal entity can be extended to artificial intelligence, endowing it with legal personality. At the same time, the relevant rights will be exercised by a natural person who controls the functioning of artificial intelligence, who, in the context of activities related to the creation of intellectual property objects, can be named the copyright holder of artificial intelligence technology (or system). [11, p.24].

At the same time, exclusive rights to intellectual property objects created by artificial intelligence can be accumulated within such a legal entity or special rights holder (artificial intelligence system). The beneficiary of such rights, i.e., the person who uses and disposes of the exclusive right to the relevant result of intellectual activity, as mentioned above, should be considered the person who “controls” the functioning of artificial intelligence—the owner of the artificial intelligence system. At the same time, the existence of personal non-property rights to such results of intellectual activity created by artificial intelligence may be indirect when referring to the author—the creator of the artificial intelligence system (only if such a creator is a natural person).

Conclusions. Thus, it can be concluded that AI activities are beginning to take on a creative character that until recently was unique to humans. AI technologies are used in all areas of society: AI can write articles, generate images, process text, come up with slogans, and make medical diagnoses. However, its use raises a number of questions that have not yet been answered or regulated by law. First and foremost, the legislation governing this area of relations must determine the following points. Who is the author of works created with the help of AI? When AI creates a work that infringes copyright, who is responsible for this infringement? If AI is capable of creating original works, can it hold copyright? When using works for the purpose of training AI, is it necessary to pay remuneration to the authors of these works, and does such use constitute a violation of the authors’ rights? What is the level of creative contribution required for a work to be recognized as an original work? In what cases and under what conditions can AI be used to create intellectual property, and when is direct human involvement in such activities required?

At present, it is clear that the task of legislation in the field of AI regulation in the context of intellectual property rights is primarily to strike a balance between the protection of authors’ rights and the public interest in access to information. One of the proposals that seems effective is to legislate the requirement for transparency and explainability of the functioning of AI algorithms in the process of creating intellectual property, which will prevent possible disputes regarding the origin of the work. In addition, it is necessary to provide for the possibility of state registration of AI algorithms as intellectual property, which will protect the rights of researchers and developers who have made a significant contribution to the creation of these algorithms. Furthermore, there is a need to create specialized bodies and mechanisms to oversee the use of AI in the context of intellectual property rights protection, which will monitor compliance with the transparency of algorithms used in the process of creating intellectual property.

References:

1. The WIPO Conversation on Intellectual Property and Artificial Intelligence (2024) https://www.wipo.int/en/web/frontier-technologies/artificial-intelligence/conversa- tion
2. Androshchuk, G. Artificial intelligence and intellectual property: regulatory issues (2021). Expert: Paradigms of Legal Sciences and Public No. 2(14). Pp. 58–78.
3. The Patents Act 1977 (UK) https://www.gov.uk/government/publications/the-pat- ents-act-1977
4. Artificial Intelligence or Artificial Inventor? The Curious Case of Dr Thaler and Dabus (2024) https://www.intellect-worldwide.com/2024/05/09/artificial-intelli- gence-or-artificial-inventor-the-curious-case-of-dr-thaler-and-dabus/
5. Copyright, Designs and Patents Act 1988 (UK) https://www.legislation.gov.uk/ukp- ga/1988/48/contents
6. Artificial Intelligence and Intellectual Property (2024) https://www.wipo.int/en/ web/frontier-technologies/ai_and_ip
7. European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)). Official Journal of the European Union. C 252/239 URL: https://www.europarl.europa.eu/doceo/ document/TA-8-2017-0051_EN.html
8. Insightinto computer technologyandartificialintelligence (2024) https://www.epo.org/ en/results?search_type=website&q=ai&filters=%5B%7B%22field%22%3A%22lan- gua ge %22%2C%22va l ue s%22%3A%5B%22e n%22%5D%2C% –22type%22%3A%22any%22%7D%5D&sortField=&sortDirection=&tab=all_re- sults

9. European Commission. Communication from the Commission Europe 2020: A strategy for smart, sustainable and inclusive growth. COM(2010) 2020 final. URL: https://www.eea.europa.eu/policy-documents/com-2010-2020-europe-2020.
10. European Parliament resolution of 20 October 2020 with recommendations to the Commission on a framework of ethical aspects of artificial intelligence, robotics and related technologies (2020) https://eur-lex.europa.eu/legal-content/EN/TXT/HTM- L/?uri=CELEX:52020IP0275
11. Towards a European Strategy for Luxembourg: Office for Official Publications of the European Communities, 2004. 24 р.