Intellectual Property Status of Generative AI-Generated Data and Results

Question

What is the status of data generated and results produced by generative AI in the context of intellectual property?

Executive Summary

In understanding the EU AI Act’s stance on the intellectual property of data and outputs from generative AI, entrepreneurs will encounter certain nuanced areas. The following points clarify the legislation’s current position:

  • Terminology and IP Relevance: The definitions of AI system, training data, and input data in the AI Act do not specify the IP status of AI-generated content, though they touch on aspects affecting originality and potential copyright issues.
  • Data Governance: While strict data governance is mandated, especially for high-risk AI systems, the Act lacks explicit directions on IP rights for data used or generated by AI.
  • Transparency and Standardization Impacts: There is an emphasis on the transparency of AI systems and participatory standardization processes, hinting at a future with clearer guidelines that may affect IP in AI-generated outputs.
  • Legal Alignment: AI practices must not infringe upon existing EU law, including IP laws, although specific details on IP protections for AI outputs remain unsaid in the Act.

Entrepreneurs should note the current lack of explicit guidance within the AI Act regarding the IP of AI-generated data and results and consider seeking specialized IP legal advice for their projects.

Assumptions

  1. Jurisdiction and Applicable Law:

    • Assume the EU AI Act as the relevant legal framework and that the user is seeking IP guidance within the EU or in a context where the EU AI Act is considered applicable.
  2. Nature of the AI-Generated Data:

    • Assume the data encompasses various categories relevant to intellectual property — including literary works, software, databases, and innovative outputs that could potentially be patented.
  3. AI as the Sole Creator:

    • Assume scenarios where the AI functions autonomously to generate data and results without direct human input or guidance, and where humans collaborate with AI, thus influencing IP considerations.
  4. Requirement of Originality:

    • Assume that originality is a requirement for copyright protection and that the AI’s ability to produce original work might affect IP status.
  5. Type of Intellectual Property Concerned:

    • Assume the inquiry relates to all types of intellectual property, although the current EU frameworks primarily address copyright.

Legal trace

Interpretation of Terminology and Relevance to Intellectual Property

For the purpose of this Regulation, the following definitions apply: (1) ‘‘artificial intelligence system’ (AI system) means a machine-based system that is designed to operate with varying levels of autonomy and that can, for explicit or implicit objectives, generate outputs such as predictions, recommendations, or decisions, that influence physical or virtual environments; Article 3(1)

AI systems are defined broadly, covering autonomous operation and capability to generate various outputs, which may include creatives works potentially subject to IP protection. The definition, however, does not extend to clarifying the IP status of said outputs.

(29) ‘training data’ means data used for training an AI system through fitting its learnable parameters; Article 3(29)

‘Training data’ signifies the material used to shape AI behavior, which might encompass copyrighted data. The molding of AI outputs through such datasets may affect their originality and hence, IP implications.

(32) ‘input data’ means data provided to or directly acquired by an AI system on the basis of which the system produces an output; Article 3(32)

The ‘input data’ contributes to the generation of outputs by AI. The nature and role of input data are essential when considering creativity and originality in the context of copyright claims for AI-generated content.

Data Governance and AI Transparency in Relation to Intellectual Property

Training, validation and testing data sets shall be subject to data governance appropriate for the context of use as well as the intended purpose of the AI system. Article 10 - Data and data governance

While Article 10 establishes thorough data governance practices, it does not discuss IP rights in the context of data governance. The implication of proprietary control is underlying but not explicit in protecting AI datasets.

High-risk AI systems shall be designed and developed in such a way to ensure that their operation is sufficiently transparent to enable providers and users to reasonably understand the system’s functioning. Article 13(1)

Article 13 places importance on the transparency of AI systems, requiring them to be understandable to both users and providers. However, it lacks direct commentary on the IP status of the data processes or results generated by such systems.

Standardization, Prohibitions, and Impact on Intellectual Property

The standardisation process should be transparent in terms of legal and natural persons participating in the standardisation activities. Recital 61

Although Recital 61 does not address IP directly, the focus on transparent standardization may encourage clearer IP guidelines. The inclusion of stakeholder interests in standards development could encompass those holding IP rights, impacting the way in which AI-generated IP is approached and protected.

The following artificial intelligence practices shall be prohibited: […] This Article shall not affect the prohibitions that apply where an artificial intelligence practice infringes another Union law, including Union law on data protection, non-discrimination, consumer protection or competition; Article 5(1), Article 5(1a)

The prohibitive measures stated in Article 5, while not specific to IP rights, may indirectly influence the development and use of AI systems that generate IP. The prohibitions serve to align AI practices with broader EU law, including IP considerations, through a layered regulatory approach.


Given that the EU AI Act does not explicitly resolve issues surrounding the intellectual property status of data and results produced by generative AI, to gain full clarity, it may be advisable for clients to seek specialized IP counsel. Additionally, consulting with a patent and trademark office or the equivalent within the jurisdiction of the EU could provide essential guidance tailored to the specifics of their AI-generated content.