Navigating intellectual property rights in the era of generative AI: The crucial role of educating judicial actors

From crafting blog posts and articles to composing music, creating videos and images, developing games and code, designing marketing strategies and even producing architectural plans, the transformative power of generative AI is being widely adopted. 

While the possibilities offered by generative AI are vast, it's crucial to acknowledge the challenges it poses to intellectual property (IP) rights. For instance, determining copyright ownership becomes complex when an algorithm generates new work that resembles an existing creation. In such cases, should the primary author be considered the human designer or the AI system?

Defining the originality and novelty of AI-generated works raises further questions. Should generative AI creations be held to the same standards of originality as human-generated works? How does this impact patentability and copyright protection criteria? The ownership of data used to train generative AI models also becomes significant, influencing resulting intellectual property rights.

Recent legal developments have highlighted this complex relationship between IP and generative AI. In January 2023, artists initiated a class action suit, Andersen et al v. Stability AI, Midjourney, DeviantArt, alleging that generative AI art tools infringed on copyright by scraping artists' work from the internet without permission. This case raises questions about the responsibility of AI creators who employ copyrighted material to train their AI systems. Additionally, Getty Images filed a lawsuit against Stability AI for the alleged unauthorized use of over 12 million images from Getty's database for AI training. These cases represent just a glimpse of the growing number of legal disputes emerging in this area.

Judges play a vital role in upholding and interpreting IP laws, ensuring fair protection and enforcement of rights. With generative AI blurring the lines between human and machine creation, judges face complex cases that require a deep understanding of both IP laws and the capabilities of AI systems.

In order to deepen the understanding of judicial actors on issues related to AI, UNESCO, in collaboration with the Inter-American Court of Human Rights (Costa Rica), the National Judicial College (United States), Lawyers Hub (Kenya) and the Center for Communication Governance at the National Law University (India), organized a discussion entitled ‘The Next Frontier: IP in the Era of Generative AI’.

The discussion featured Judge Ricardo C. Pérez Manrique, President of the Inter-American Court of Human Rights, Tawfik Jelassi, UNESCO’s Assistant Director-General for Communications and Information, Ernesto Ottone, UNESCO’s Assistant Director-General for Culture, Sougwen Chung, artist and researcher, founder of SCILICET, Neil Turkewitz, copyright activist, and member of the Artist Rights Alliance, Prof. Thomas Margoni, research professor of intellectual property law at the Faculty of Law and Criminology, KU Leuven, Liz Lenjo, Chairperson Copyright Tribunal of Kenya, Marielza Oliveira, UNESCO’s Director of Digital Inclusion and Policies and Digital Transformation. Over 300 judicial operators worldwide joined the discussion.