FOOD FOR THOUGHT: AI AND RIGHTS
Shortly before Christmas, the United Kingdom Supreme Court delivered a judgment which was reported under the headline “AI cannot patent inventions, UK Supreme Court confirms”.
The reporting. The above headline was taken from https://www.bbc.com/news/technology-67772177.
At first blush, this decision appears to be revolutionary.
After all, if the UK Supreme Court (a very eminent authority) held that AI cannot patent inventions, it would reverberate throughout (at least) the common law jurisdictions. And it would pose questions such as, e.g., whether AI can “own” copyright, and if not, what happens next.
A much narrower finding. But a closer read of the decision (accessible at https://www.bailii.org/uk/cases/UKSC/2023/49.html) shows that the UK Supreme Court was making a much narrower finding.
As set out in Paragraphs 48 – 50 of the judgment delivered by Lord Kitchin (with whom Lord Hodge, Lord Hamblen, Lord Leggatt and Lord Richards agreed):
“48. The Comptroller has emphasised, correctly in my view, that this appeal is not concerned with the broader question whether technical advances generated by machines acting autonomously and powered by AI should be patentable. Nor is it concerned with the question whether the meaning of the term "inventor" ought to be expanded, so far as necessary, to include machines powered by AI which generate new and non-obvious products and processes which may be thought to offer benefits over products and processes which are already known.
49. These questions raise policy issues about the purpose of a patent system, the need to incentivise technical innovation and the provision of an appropriate monopoly in return for the making available to the public of new and non-obvious technical advances, and an explanation of how to put them into practice across the range of the monopoly sought. It may be thought that the rapid advances in AI technology in recent times render these questions even more important than they were when these applications were made.
50. This appeal is concerned instead with the much more focused question of the correct interpretation and application of the relevant provisions of the 1977 Act to the applications made by Dr Thaler. This was the approach taken by the Comptroller, the High Court and the Court of Appeal, and rightly so.”
(our emphasis added)
Indeed, reading beyond the headlines in the BBC News article, one will see that this position is reflected in the article.
Nonetheless, this decision throws up some food for thought.
BIM and copyright. As many in the construction industry would know (or at least be aware of), BIM is an important part of the construction industry in Singapore.
Bearing this in mind, two immediate questions arise: “If I use an AI to create a design that is later incorporated in the BIM model, who owns the copyright in the design?” and “If I made a modification to a BIM model, and an AI software automatically makes further changes to the BIM Model, who owns the copyright in the revised BIM model?”
The typical lawyer’s answer of “It depends” is no doubt apposite here.
After all, to answer these questions, one would no doubt need to examine the contractual relationship in question and see whether there are terms and conditions to resolve these issues.
And practically, depending on the factual matrix, the simple answer may be to examine the contract (or contracts) in question and see if ownership is really in issue as the issue may be an infringement issue that can be resolved by asking whether there was (on the facts) a license that was granted.
But this does not always mean that there is an answer based on the contract.
Say that your contract incorporates (for the sake of a hypothetical) just the following 3 clauses from the BIM Particular Conditions Version 2.0:
“5.2. Subject always to Clause 6, in contributing content to the Model, the Model Author does not convey any ownership right in the content provided or in the software used to generate the content. Any subsequent Model User’s right to use, modify, or further transmit the Model is specifically limited to the design and construction of the Project (including authorities’ submissions, where required), and nothing contained in the BIM Particular Conditions conveys any other right to use the Model for another purpose.”
“6.1. Each Model Author warrants that it owns the copyright to its Contribution or is licensed by the holders of copyright in the Contribution to make the Contribution and grant such licence as enumerated under sub-Clause 6.3.”
“6.3. Each Model Author grants to the Model Users a limited, non-exclusive licence to reproduce, distribute, display or use the Contribution of that Model Author for the sole purpose of carrying out BIM in the Project. The limited licence granted in this sub-Clause shall include any archival purposes permitted in these BIM Particular Conditions or in the Principal Agreement of that Model Author. In this regard, after final completion of the Project, the non-exclusive licence shall be limited to keeping an archival copy of Project-related Contributions.”
Reading Clause 6.3 together with Clause 6.2, insofar as you are creating the design (with the assistance of AI), you are likely not to be able to have a recourse against other users of the BIM Model for copyright infringement as you have warranted to them that you own the copyright to your contribution to the BIM Model, and you have granted them a limited and non-exclusive license to use the BIM Model (as modified) for the purposes of the Project (subject, of course, to the other terms of the contract).
But this still does not address the question of whether an AI can own a copyright under Singapore law. And this in turn throws up question of how much contribution must a “human author” make to the design for the “human author” to claim copyright, and whether the copyright would then rest with the “human author” or with the programmer of the software that was being used.
In this regard, we return to the UK Supreme Court Case, and in particular, Paragraphs 51 to 52 which we set out below:
“51. Here Dr Thaler has made clear that he does not claim to be and indeed is not the inventor of any inventions described or disclosed in the applications; that it was and remains his belief and case that the inventions were made by DABUS, a machine powered by AI; and that DABUS ought therefore to be named and recognised as inventor. I would also emphasise, as has the Comptroller, that the UKIPO did not and could not go behind those assertions, so far as they constituted assertions of fact, in dealing with these applications. The question whether DABUS in fact created and generated the inventions described in the applications has therefore never been investigated. The applications have been considered and assessed (and the appeals have been decided) on the basis that the factual assertions made by Dr Thaler are correct.
52. It follows but is important to reiterate nonetheless that, in this jurisdiction, it is not and has never been Dr Thaler's case that he was the inventor and used DABUS as a highly sophisticated tool. Had he done so, the outcome of these proceedings might well have been different.”
(our emphasis added)
While the decision is in context of patent, would it be different if we are to glean principles applying to copyright from it?
Conclusion. While we do not profess to give the answer in this short blog, given that we are now nearing the end of the year, while we reminisce about our achievements and lessons learnt in 2023 and ponder over the course ahead in 2024, we think that the increasing use of AI (and we are using the term loosely here) in the construction industry throws up legal issues that ought to be addressed.
Hence, we leave our readers with this food for thought, and we wish our readers a happy and prosperous 2024 in advance.
This publication is not intended to be, nor should it be taken as, legal advice; it is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking, actions based on this publication. Chancery Law Corporation is not responsible for, and does not accept any responsibility for, any loss or damage that may arise from any reliance based on this publication.