Back in 2018, the European Commission published a Coordinated Plan on AI, aimed at setting the European approach to AI (anthropocentric, sustainable, safe, inclusive, and reliable), promoting the adoption of national plans, and ensuring EU funding.
To preserve global competitiveness, the Commission is committed to promoting innovation in the development and use of AI technologies in all industries sectors and all Member States. Therefore, the development of artificial intelligence systems represents an important opportunity for development and increased competitiveness in both Member States and the private sector, increasing the competitiveness of companies.
However, when we talk about artificial intelligence, many questions arise.
There are two kinds of artificial intelligence:
In both hypotheses, we are moving in the field of software development, whose protection necessarily intertwines with the world of intellectual property.
Intellectual property attributes to the creator or the inventor of the work the right to exploit the creations, ensuring appropriate protection against improper use of the work by unauthorized parties.
Intellectual property is differentiated into:
As a consequence of this distinction, it is important to understand what possible systems of protection apply to artificial intelligence.
We will analyse the possible protections provided for works:
We begin with the first.
Intellectual property consisting of AI
When we talk about creations realized with the support of an AI or based on AI technology, we refer to software development.
But are the inventor of software as an AI granted rights? And if so, what are the rights?
The Italian legislation identifies two possibilities: copyright and patent protection.
Copyright
Italian Copyright Law n. 633/1941, in article 1 paragraph 2, protects "computer programs" as literary works, thus guaranteeing to the author of the program that created it the relative:
Copyright does not require any formalities to be recognized and will exist for all the author's life and up to 70 years after his death.
However, the copyright law protects software only if it is creative, thus original (art. 2 points 8).
The software will be considered original if it presents elements of innovation compared to other pre-existing software and does not provide a standard solution known in the sector.
Patent protection
According to Article 45 paragraph 2 letter. b) of the Code of Industrial Property (Legislative Decree 10 February 2005, n.30) computer programs are not considered inventions and therefore they are not patentable.
However, the European Patent Office has recently updated its guidelines to include a specific section on the patentability of inventions involving AI, also defined as "computer-implemented inventions" (CII).
Specifically, for software to be patentable, it must be incorporated into an invention that has the following requirements under Article 45(1) of the Code:
In addition, a patent may be granted when the AI:
This interpretation of the European Patent Convention allows the EPO (European Patent Office) to authorize the patentability of technologies based on artificial intelligence, in many technology areas such as medical devices, the automotive field, media, communication, etc.
Finally, the patent holder will be granted industrial property rights on the invention for 20 years from the filing date of the invention.