Clifford Chance

On 28th November 2023 our panel of international experts looked at the key IP issues for businesses arising from AI across the US, Europe and APAC.

We discussed third party IP right infringement by AI developers and users, copyright protection for the outputs of generative AI, and whether AI can ever be an inventor under patent law.

• Can AI training processes involve copyright infringement? The answer varies from country to country so decisions on governing law will be key. We overviewed the (differing) text and data mining exceptions in the EU and the UK, the US concept of 'fair use', recent changes in law in countries such as Japan and Singapore and the impact of China's GenAI measures, as well as upcoming changes expected from Biden's AI Executive Order and the anticipated UK code of practice.
• Can an AI user's output infringe copyright? We looked at differing tests for infringement and the issue of who bears liability given the role of user prompts in generating AI outputs. We discussed how AI users may look to contractual terms in allocating liability, as well as consider tailoring AI usage policies according to the level of copyright (and other) risks associated with a type of output and its intended use.
• Can AI outputs attract copyright protection? The UK may allow copyright for computer-generated works in some cases, the US and EU's human-centric laws are being tested in this area, and many APAC countries require human intellectual contribution.  
• Can AI-generated inventions be patented? The position can vary depending on jurisdiction as well as the level of AI vs human involvement. We looked at test cases being brought on this issue around the world.

Our Panelists

Don McCombie - Partner, Intellectual Property, London
Violetta Kokolus - Partner, Intellectual Property, New York
Claudia Milbradt - Partner, Intellectual Property, Frankfurt
Ling Ho - Partner, Intellectual Property, Hong Kong

View the recording of the webinar