USPTO Director: ‘Sufficient’ Human Contribution Needed for IP Protection, CES 2024

The flurry of AI-generated content has given rise to a hotly contested question about intellectual property protection: Can these works be legally protected?

“When we think about whether it should be protected as intellectual property, what I look at is not just whether they use AI, but what did the human contribute,” U.S. Patent and Trademark Office Director Kathi Vidal told AI Business at the sidelines of her fireside chat at CES 2024.

“That is the linchpin and that is what you are going to see as we develop policies around this,” she added. “It is really … to make sure that there is sufficient human contribution, that it makes sense to protect it because you do not want to protect everything. Otherwise, there is no freedom to actually innovate or create.”

Asked to define “sufficient” human contribution, Vidal said there is no “express percentage” of human effort but “there are tests that we are going to do.”

Last September, an AI-generated artwork that won a digital art contest at a Colorado State Fair, which went viral, was denied copyright protection in the U.S. because it “lacks human authorship.”

Last February, a comic book with AI-generated art received limited copyright protection from the U.S. Copyright Office. But Kris Kashtanova, the creator of Zarya of the Dawn, will only get IP protection for the text and not AI-generated images because they “are not the product of human authorship.”

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The U.K. Supreme Court last December ruled in a landmark decision that an AI cannot be listed as an inventor on a U.K. patent application, even if it developed the product because the inventor must be human. China, however, took a different tack when a judge ruled last November that AI-generated images can be copyrighted.

Biden’s AI executive order

In her fireside chat, Vidal weighed in on Biden’s AI executive order as well, which he issued last October.

Seen as the nation's most sweeping AI regulation to date, the order requires pre-vetting of AI models released by leading tech companies, mandates that "strong" new standards be developed for biological synthesis screening to make it tougher to use AI to create biological weapons, among other stipulations.

The order tasks the Commerce Department with providing guidance on authenticating content through watermarking and spotting AI-generated copies.

Vidal, who is also the undersecretary of commerce for intellectual property, said the executive order is not “aspirational” but rather, “realistic.”

“This is indicative of the bias in the administration is we want to get stuff done,” she said during a fireside chat at CES 2024. “The AI executive order is not aspirational. There is a very short turnaround deadline − short, but realistic with concrete deliverables. That was a really important process of shaping the executive order.”

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Vidal said the Commerce Department is working across the government to fulfill the requirements of the order. She encouraged startups and other companies to reach out to provide feedback on the executive order.