AI and IP. Let’s adopt the best practices from our neighbor.
Article published by El Universal.
On October 30, after a long wait, the Biden-Harris administration released an Executive Order (EO) on artificial intelligence (AI) with the aim of promoting its development, security, and reliability. The order addresses a considerable number of issues concerning AI that range from defense and national security to labor-related issues and consumer protection, as well as intellectual property (IP).
As the capabilities of AI grow, so too do their implications. The EO establishes unprecedented actions concerning potential risks from AI systems. The White House is adamant that large and powerful developers, under highly rigorous standards, share the results of safety tests as well as critical information.
The issue is so significant that the creation of a specific area to coordinate all the federal authorities affected by AI is mandated. It is worth noting that for several years, there has been an IP coordination in the United States under the direct purview of the president.
Within the priorities outlined by the order, IP plays a key role, both for the benefits surrounding the fruits of AI and for the protection it offers to the rights it regulates. AI has revolutionized not only content creation but also the use of protected contents and public domain material.
With the issuance and publication of the EO, President Biden instructs his copyright and patent offices (USPTO) to address the challenges that AI brings. This is to be done under standards and best practices in its use and the detection of outcomes. The work assigned must be under the premises of fostering innovation and competition, and of the leadership that the United States holds in the safe, reliable—and now regulated—use of AI.
Regarding the IP-AI pairing, the issue of AI-created works’ authorship—which has been discussed several times in this column—could not be overlooked. Specifically, for patents, the Oval Office orders the USPTO to publish by no later than the end of February 2024, a manual for applicants and examiners addressing the issue of ownership and the use of generative AI in the inventive process. This is in the context that AI cannot be recognized as an inventor.
Similarly, the patent authority is ordered to issue material that guides and defines in the best way possible the eligibility of IP inventions to achieve the desired protection.
In terms of copyright, the authority is instructed to issue a document (by July 2024) on the interaction between copyright law and AI, the scope of protection for works produced with it, and the treatment of protected works in creations attributable to it. Colleagues in the United States have expressed that the order falls short in this last aspect, as well as in relation to fair use, that is, use that does not require authorization.
The order, with implications that go beyond its borders, is a significant reference from which Mexico can greatly benefit. For this, it is only necessary to invoke the cooperation in terms of IP and innovation that arises from the USMCA.
We cannot miss this opportunity. Let’s adopt these best practices. This is a crucial moment for Mexico to consider, locally, regionally, and globally, how to approach AI and its interaction with IP.
