Revised issues paper on intellectual property policy and artificial intelligence

INTRODUCTION

1. Artificial intelligence (AI) has emerged as a general-purpose technology with widespread applications throughout the economy and society. It is already having, and is likely to have increasingly in the future, a significant impact on the creation, production and distribution of economic and cultural goods and services. As such, AI intersects with intellectual property (IP) policy at a number of different points, since one of the main aims of IP policy is to stimulate innovation and creativity in the economic and cultural systems.

2. As policy makers start to decipher the wide-ranging impacts of AI, the World Intellectual Property Organization (WIPO) has started to engage on the aspects of AI that are specific to IP. There are several threads to this engagement, notably:

(a) AI in IP Administration. AI applications are being increasingly deployed in the administration of applications for IP protection. WIPO Translate and WIPO Brand Image Search, which use AI-based applications for automated translation and image recognition, are two examples of such AI applications. Several IP Offices around the world have developed and deployed other AI applications. In May 2018, WIPO convened a meeting to discuss these AI applications and to foster the exchange of information and the sharing of such applications. The Organization will continue to use its convening power and position as the international organization responsible for IP policy to continue this dialogue and exchange. Questions related to IP policy aspects of AI in administration are set out in paragraph 46.

(b) IP and AI Strategy Clearing House. AI has become a strategic capability for many governments across the globe. Strategies for the development of AI capacity and AI regulatory measures have been adopted with increasing frequency. The Organization has been encouraged by its Member States to collate the main government instruments of relevance to AI and IP with the aid of the Member States. WIPO has issued a questionnaire and will publish a dedicated website shortly that seeks to link to these various resources received in a manner that facilitates information sharing.

(c) IP Policy. The third thread is an open and inclusive process aimed at developing a list of the main questions and issues that are arising for IP policy as a consequence of the advent of AI as an increasingly widely used general-purpose technology. For this purpose, a Conversation was organized at WIPO in September 2019 with the participation of Member States and representatives of the commercial, research and non-governmental sectors. At the conclusion of the Conversation, a plan for the continuation of discussions by moving to a more structured dialogue was agreed in outline. The first step was for the WIPO Secretariat to develop a draft list of issues that might provide the basis for a shared understanding of the main questions that need to be discussed or addressed in relation to IP policy and AI. WIPO published a draft Issues Paper on December 13, 2019 and called for comments from all interested parties. WIPO requested submissions on the correct identification of issues and whether there were any missing issues. More than 250 submissions from the government and non-government sectors, including Member States and their agencies, commercial actors, research institutions, universities, professional and non-governmental organizations and individuals, were received and have been published on the WIPO website.

3. The present paper constitutes the revised Issues Paper, which takes into account all comments received. In making the revisions the WIPO Secretariat was guided by a number of principles. New sections have been added where a clear gap in the draft Issues Paper was identified and a number of amendments were made to the wording of the Paper. Overall, the revised Issues Paper aims to retain its focus on the substantive legal questions raised by AI for IP Policy. As a result, while taking note of the many relevant follow-on questions raised in the submissions, a limited set was included in the revised document. Where opposing views were voiced in the submissions received, no changes were made to allowWIPO to maintain a neutral position.

4. Many respondents to the draft Issues Paper raised questions across a large range of policy fields including ethics, standards and privacy. As the WIPO mandate is limited to IP, questions outside that arena have not been included in the revised Issues Paper. The WIPO secretariat has taken note of these questions and is aware that the broad issues raised by AI will require a coordinated approach. WIPO is communicating closely with the agencies responsible for these related fields and the WIPO Conversation on IP and AI will feed into the different strands of the ongoing discussions. For example, WIPO is participating in the roundtables about AI and digital platforms set up in response to the recommendations made by the UN Secretary General’s High-level Panel on Digital Cooperation in The Age of Digital Interdependence report. Also in response to this report, WIPO is taking part in the Road to Bern via Geneva dialogues on digital and data co-operation in the lead up to the 2020 UN World Data Forum. WIPO regularly collaborates with the International Telecommunications Union (ITU) in the AI for Good initiative. WIPO also supports the work that UNESCO has begun in the development of the first global normative instrument on the ethics of AI.

5. Many respondents also noted the ongoing initiatives in other IP offices with respect to IP and AI. The WIPO Secretariat is aware of work in Member State IP offices and continues to cooperate with IP Offices in other AI policy initiatives and will collate information in the AI clearing house as noted in paragraph 2(b). As noted in paragraph 2(c), WIPO’s plan for the continuation of discussions by moving to a more structured dialogue was agreed in principle by WIPO Member States at the first Conversation in September 2019. In addition, WIPO is an observer in IP5 NET/AI task force. WIPO also shares expertise with Member States and participates in information exchanges in both AI policy and AI tools.

6. This revised Issues Paper will form the basis of the Second Session of the WIPO Conversation on IP and AI, structured in accordance with the Issues Paper, which will be held in July 2020.

7. The issues identified for discussion are divided into the following areas:

(a) Glossary

(b) Patents

(c) Copyright and Related Rights

(d) Data

(e) Designs

(f) Trademarks

(g) Trade secrets

(h) Technology Gap and Capacity Building

(i) Accountability for IP Administrative Decisions

8. No separate section concerning AI and unfair competition has been added. However, recognizing that IP law and competition law clearly relate, questions have been added in the various sections to highlight this relationship.