Category: In The News

The recent Biden White House Executive Order on artificial intelligence is a sweeping attempt to assess, monitor, regulate, and direct developments in this important area of technological growth.  However, while the Order contemplates massive and thorough (arguably intrusive) collections of information, including information that will be trade secret and otherwise commercially valuable, it does not specifically address the issue of how better to ensure that government officials, employees, agents, and contractors have proper training to make sure that third-party proprietary rights in that information are preserved and the information is not “leaked” or otherwise improperly published by those acting under color of federal authority.  In addition, while the Order seeks information to better assess the refusal by the U.S. Copyright Office and the U.S. Patent Office to afford protection to matter created wholly by artificial intelligence, there is a lack of specific direction on the potential need to alter these positions or focus on developing – at the federal or state levels – new forms of intellectual property protection for such matter.

Gary Rinkerman is an attorney whose practice includes intellectual property litigation, transactions, and counseling. He  is an Honorary Professor of U.S. Intellectual Property Law at Queen Mary University in London, UK and also a Senior Fellow at the Center for Assurance Research and Engineering (‘CARE’) in the College of Engineering and Computing at George Mason University in Virginia. For those interested in ‘digital archeology,’ Mr. Rinkerman, as a Senior Investigative Attorney for the U.S. International Trade Commission, successfully argued one of the first cases in which copyright in object code was enforced. He also co-founded and served as Editor-in-Chief for Computer Law Reporter, one of the first legal publications (in the 1980s) to focus exclusively on law and computer technologies. This article should not be considered legal advice. The presentation of facts and the opinions expressed in this discussion are attributable solely to the author and do not necessarily reflect the views of any firms, persons, organizations or entities with which he is affiliated or whom he represents.

The proliferation of AI tools in the arts, commercial design industries, and other endeavors has raised core questions regarding who or what actually supplied the alleged creative or inventive elements, if any, to the AI system’s output. In both U.S. copyright and patent law the question focuses on a case-by-case analysis as to how much of the final product evidences human “authorship” or invention. Also, creativity as well as infringement, can be located in various phases of the AI system’s creation, ingestion of training materials, management, and operation – including its output, whether affected prior to the output or after it. Issues such as liability for selecting ingestion materials or target data, as well as the potential inadvertent triggering of patent law’s bar date through use of specific AI systems, have also come to the forefront of AI’s potential to secure, forfeit, or impact claimed proprietary rights in AI-assisted creative and inventive activities. Several alternative intellectual property and unfair competition approaches that can supplement or supplant copyright and patent law principles also come into play as users of AI seek to protect the products of their efforts.

Gary Rinkerman is a partner at the law firm of FisherBroyles LLP, an Honorary Professor of U.S. Intellectual Property Law at Queen Mary University in London, and a Senior Fellow at the Center for Assurance Research and Engineering (“CARE”) in the College of Engineering and Computing at George Mason University, Virginia. For those interested in “digital archeology,” Professor Rinkerman also successfully argued one of the first cases in which copyright in object code was enforced and he co-founded and served as Editor-in-Chief for Computer Law Reporter, one of the first legal publications (in the 1980s) to focus exclusively on law and computer technologies. This article should not be considered legal advice. The presentation of facts and the opinions expressed in this article are attributable solely to the author and do not necessarily reflect the views of any persons, organizations or entities with which he is affiliated or whom he represents. The author would also like to thank J.P. Auffret, Director of CARE, for his continuing support and for his expertise in the frontier areas of Artificial Intelligence.