Are AI and Intellectual Property Frenemies?

By Natalia Vera Matiz, partner at Vera Abogados Asociados

When examining the interaction between AI and intellectual property (IP), a common belief is that AI poses a threat to IP rights. To assess this view, we must consider multiple perspectives.

This issue is particularly significant as many creators now integrate AI into their work, raising two primary concerns. First, we need to determine the extent of human involvement required for a work generated with AI assistance to qualify for copyright protection. The straightforward conclusion is that works created entirely by AI should not receive copyright protection. However, this stance risks stifling innovation in the tech sector and deterring investment. Just as flexible copyright laws have benefited the film industry by allowing greater use of protected materials, a restrictive approach to AI authorship could have the opposite effect.

The second concern relates to the use of materials for training AI. Proponents of unrestricted access argue that free speech and scientific advancement are at stake, as AI can significantly enhance both fields. Conversely, critics emphasize the need for compensation and consent from original creators whose works are used to train AI models.

Lawmakers and judges must consider policies that balance fair compensation with the need for exceptions in licensing requirements for using copyrighted materials in AI training. Recent cases, such as The Times v. ChatGPT, illustrate these complexities. Additionally, we can learn from international examples; for instance, Japan has proposed a flexible policy aimed at maximizing the training of AI with copyrighted content.

To foster the growth of generative AI and technology overall, we must ask the right questions and avoid premature conclusions, such as outright denying protection for AI-generated works. Without access to copyrighted materials, we cannot fully realize AI's potential. It’s essential to adopt a global perspective, seek consensus, and align our thinking with the foundational goals of intellectual property.