Chat GPT, Microsoft Copilot or even the Gemini chatbot – most of us are familiar with at least some of the popular language models and other AI-based assistants. The ways, possibilities and frequency of using AI technologies in various industries are currently growing by leaps and bounds. Artificial intelligence is a key tool for streamlining various processes, processing data and automating routine tasks. At the same time, AI is becoming an essential part of our daily lives.

Given the speed, at which the various AI tools are evolving, there are also a growing number of issues associated with the sector that will need to be addressed – pragmatic, ethical and legal ones. One of the most debated and problematic legal areas in relation to AI is intellectual property law. The most important conceptual issue in this regard is the consideration of whether or not AI can be considered the author of some work or the originator of an invention. And if not, how are pieces of work created by AI legally protected?

DABUS case

DABUS or Device for Autonomous Bootstrapping of Unified Sentience is an artificial intelligence system created by computer scientist Stephen Thaler. According to Dr Thaler, DABUS created two inventions entirely independently – the fractal design of a beverage container and an emergency attention-getting device. Dr Thaler attempted to register both of these outputs with patent offices in various countries (e.g. Australia, South Korea, South Africa, USA, New Zealand and the EU), citing the DABUS system as the sole originator of the inventions. In the vast majority of countries, the applications were rejected, but in two countries the registration was successful.

In July 2021, a patent on the fractal design of a beverage container was approved by South Africa, and shortly thereafter a patent court in Australia recognized that DABUS could be listed as the inventor (however, the Australian decision was later challenged).

In other countries, however, patent offices and courts generally agree on one thing: only a natural person can be the originator of an invention. This conclusion can be drawn, for example, from decisions of the European Patent Office, the Federal Patent Court in Germany or the Supreme Court in the United Kingdom, and derives in particular from the consideration that the inventor acquires the right to the patent and must therefore be an entity endowed with legal personality. A contrario, then, it cannot be a machine. The decision makers also considered whether Dr. Thaler, as the owner and creator of DABUS, could succeed to the patent as the successor in title to DABUS. However, since DABUS itself, in the opinion of the competent authorities, did not acquire the right to the inventions, it could not transfer this right to anyone else.

Dr Thaler has repeatedly called for a change in the rigid and largely formalistic interpretation of the concept of inventor, which clearly does not reflect the advent of generative AI. However, there has been no reconsideration of the legal construction that the inventor of an invention must in all circumstances be a natural person, in the context of ongoing court proceedings in any country.

Czech case law

In the context of Czech court practice, one of the first key decisions is the judgment of the Municipal Court in Prague, No. 10 C 13/2023-16, in which the court concluded that artificial intelligence cannot be the author of a piece of work. In this case, the dispute was between the plaintiff, who commissioned AI to create an image, and the defendant, who subsequently used the image on its website without permission. It follows from the cited decision that an image generated by artificial intelligence is not a copyrighted work, since under the Copyright Act, only the natural person who created the work is considered the author. Since AI is not a natural person, it cannot be an author in terms of the current legislation. The pitfall, however, is that even the person who instructed the AI to create the image cannot be considered the author. The sponsor has only provided the AI with a theme or an idea, which is not in itself a copyrighted work. As a result, copyright law does not currently provide any protection for AI-generated images.

The future legal regulation of generative AI

Rather than gaps in the regulation of intellectual property in the context of artificial intelligence, we can speak of a complete absence of comprehensive legislation. The unpreparedness for the new reality, of which AI is undoubtedly a part, concerns both the Czech legal system and international law. As the classics say: An unjust law is not a law, but no law is always an injustice. It will therefore be interesting to see how the legislative anchoring of the issue of AI authorship will evolve. Will the legislature respond to the pressing need for statutory regulation, or will individual situations be left in the hands of the courts for years to come?