Intellectual Property Protection in the Age of Generative AI
The rapid proliferation of generative AI tools has created a paradigm shift in intellectual property law, raising fundamental questions about authorship, ownership, and the boundaries of fair dealing that existing legal frameworks were not designed to address. Businesses using or affected by these technologies must understand the evolving legal landscape and take proactive steps to protect their interests.
Under UK copyright law, copyright protection requires that a work be original and the product of the author's own intellectual creation. The Copyright, Designs and Patents Act 1988 provides that the author of a computer-generated work is the person who made the arrangements necessary for the creation of the work. However, the application of this provision to modern generative AI systems, which may produce outputs with minimal human direction, remains legally untested in the UK courts.
The question of whether AI training on copyrighted material constitutes infringement is at the centre of global litigation. In the UK, the text and data mining exception under s.29A of the CDPA 1988 permits computational analysis of copyrighted works for non-commercial research purposes, provided the researcher has lawful access. The government's proposed expansion of this exception to cover commercial use was withdrawn following significant opposition from creative industries. The legal position therefore remains that commercial-scale AI training on copyrighted material without licence may constitute primary infringement.
For businesses generating content using AI tools, several practical considerations arise. AI-generated outputs that substantially reproduce copyrighted training data may infringe the rights of the original authors. Companies should implement review processes to identify potential infringement risks in AI outputs, particularly where the outputs will be used commercially or published. Contractual provisions in AI service agreements regarding IP indemnities and ownership of outputs should be scrutinised carefully.
Trade mark and design rights raise additional considerations. AI-generated logos, brand elements, or product designs may inadvertently reproduce existing registered marks or designs. Businesses should conduct clearance searches before adopting AI-generated branding, just as they would for human-created material.
At Masl Legal, our IP Law team advises businesses on the full range of intellectual property challenges presented by AI technologies. We help companies navigate the complex intersection of copyright, trade marks, patents, and the emerging regulatory framework.
The legal landscape will continue to evolve as courts address these novel questions. Businesses that establish robust IP governance frameworks now will be best positioned to navigate the uncertainties ahead.
