Publication date: January 03, 2025
Today, thanks to access to artificial intelligence, people can significantly speed up and streamline their work. Moreover, AI’s existence greatly facilitates work in fields where a person may lack knowledge or has only a very narrow understanding. Nowadays, anyone who inputs the right command into an AI program can generate texts, sounds, videos, or graphics. Whereas in the past, this required the professions of copywriters, film editors, or graphic designers, today their role is not as crucial. However, a question arises—who owns a work generated by AI? Is a text written by an advanced language model the intellectual property of the person who provided the prompt?
To explore this issue further, one should refer to the case of the famous “monkey selfie”, where similarities can be observed regarding authorship and intellectual property in situations where the traditional creator is not clearly defined. The “monkey selfie” case involved a photo taken by the macaque monkey Naruto, who accidentally pressed the shutter button of photographer David Slater’s camera. The photo quickly became popular online, and the issue of its copyright sparked a heated legal debate. Ultimately, the court ruled that copyright did not belong to the monkey, as animals cannot be subjects of copyright law, nor directly to the photographer, who was not the creator of the actual photo despite providing the equipment.
The decision of the U.S. Copyright Office in 2014, which stated that copyright only applies to works created by humans, further highlights the challenges of assigning intellectual property rights to works created in unconventional circumstances. In the Compendium of U.S. Copyright Office Practices, a photo taken by a monkey or a mural painted by an elephant was explicitly mentioned as an example of works that are not subject to protection due to the lack of human involvement in the creative process. This stance excludes the possibility of assigning copyright to works created without human input, regardless of who provided the tool.
Similarly, in the case of artificial intelligence, the question arises whether a work generated by AI can be considered intellectual property at all, and if so, who would have the right to it. Like the macaque in the “monkey selfie”, AI is a tool that operates autonomously but without intention or awareness. Therefore, one could argue that the law should be applied to AI-generated works in the same way as it was in the case of the monkey selfie.
It is also important to note that copyright law protects “works” not “products”. The term “work” is strictly tied to copyright law and focuses on the manifestation of an individual’s creative activity. In the case of AI-generated outputs, the quality of the products may be very good; however, it is crucial to remember that copyright protects creativity “in any form, regardless of value [quality], purpose, and manner of expression.”[1]
DABUS, or the “Device for the Autonomous Bootstrapping of Unified Sentience,” is an AI system developed by American inventor Stephen Thaler. Its goal was to generate inventions that, in traditional legal terms, would belong to humans. In 2018, Thaler filed two patent applications with the European Patent Office (EPO), naming DABUS as the inventor. The first invention concerned a modern food container, and the second was a device emitting flashing lights to attract attention.
However, the EPO rejected both applications, arguing that they did not meet the formal requirements because a machine could not be listed as the inventor. The case went to the Appeal Board, which had to address the fundamental question—can an AI system be recognized as the inventor of an invention under current patent law?
In its decision in July 2024, the EPO Appeal Board unequivocally answered this question—no. The justification was that an inventor must be a natural person because the European Patent Convention of 1973 defines an inventor as an individual who creates a specific process or device. The term “inventor” does not encompass machines or artificial intelligence. The Board emphasized that the primary purpose of patent law is to protect the rights of inventors and facilitate the enforcement of their claims. If a machine were listed as the inventor, this basic principle would not be fulfilled.
Although the Board rejected the applications with DABUS as the inventor, it also considered alternative arguments from the complainant, who argued that as the owner of the AI system, Thaler could be considered the legal successor of the machine. However, the applicant would have to demonstrate that they had rights to the invention based on an appropriate contract or patent right. The Board stated that it was necessary to submit a declaration specifying the source of rights to the invention, regardless of whether the invention was created with the help of AI or a human. Therefore, if the invention was created by AI, the applicant (e.g., the owner of the system) would need to show how they acquired the rights to file for a patent.
Despite the rejection of DABUS as the inventor, the Appeal Board noted that inventions created with the assistance of AI are not excluded from patentability under the Convention. This means that AI systems can participate in the process of creating inventions that may later be protected by patents, but the inventor must be a human, not a machine. Additionally, the Board stated that for inventions created with the help of AI, it is possible to include information in the application about the role the AI system played in the creative process. While AI can serve as a tool in the hands of a human, it cannot be considered an autonomous creator under the law.
The decision of the European Patent Office regarding DABUS aligns with rulings in other countries, such as the United States, Germany, and the United Kingdom, where patent systems also do not recognize AI as the inventor of an invention, emphasizing the need to identify a natural person as the inventor. The exception is South Africa, which became the first country in the world to grant a patent listing AI as the inventor.
Does Polish law regulate Intellectual Property created by AI?
The first thought regarding legal regulations in the context of AI might be the recently popular AI Act, which is a European Union regulation (2024/1689) introducing requirements for algorithm transparency, labeling AI-generated content, and managing the life cycle of AI systems. Importantly, these regulations primarily aim to protect the rights of citizens and consumers, increase public trust in AI technology, and regulate the use of AI in key sectors such as healthcare, transportation, education, and the public sector. However, they do not directly address intellectual property protection. The AI Act only imposes a requirement on system providers to implement appropriate copyright protection policies. This general formulation suggests that, most likely, only practice will reveal how this requirement will be implemented.
Another possible area of Polish regulation regarding intellectual property and AI could involve copyright law. According to this law, copyright belongs to the creator demonstrating “creative intellectual activity.” Therefore, if a work (e.g., image, text, music, or photography) is created by AI without direct human involvement, a problem arises regarding who should be granted intellectual property rights. Currently, copyright law does not recognize AI as a subject that can hold copyright, meaning that the rights to such creations could belong to the person who created or programmed the AI system, or the person who used AI in the creative process.
In light of the dynamic development of artificial intelligence and its role in creating artistic works, inventions, and other forms of creativity, the issue of assigning intellectual property rights is becoming increasingly complex. While copyright and patent laws currently do not provide clear regulations concerning AI, there is a growing need to adapt the rules to modern technological challenges. These issues go beyond traditional understandings of authorship and creativity, necessitating a revision of the definitions of “creator” and “inventor.” In the coming years, we are likely to witness intense debates and legislative actions at both the national and international levels, aiming to address these difficult questions. Regardless of how these regulations will be shaped, it will remain crucial to strike a balance between protecting the rights of creators and fostering innovative use of AI tools in creativity. It is important to remember that copyright not only protects works but also enables the development of creativity in the face of new technologies, which, in the case of AI, may signify an entirely new dimension of intellectual creation.
Bibliography:
[1] Excerpt from Article 1, Section 1 of the Act of February 4, 1994, on Polish Copyright and Related Rights.