The U.S. District Court for the District of Columbia recently affirmed a decision by the U.S. Copyright Office (“USCO”) in which the USCO denied an application to register a work authored entirely by an artificial intelligence program.  The case, Thaler v. Perlmutter, challenging U.S. copyright law’s human authorship requirement, is the first of its kind in the United States, but will definitely not be the last, as questions regarding the originality and protectability of generative AI (“GenAI”) created works continue to arise.  The court in Thaler focused on the fact that the work at issue had no human authorship, setting a clear rule for one end of the spectrum.  As the court recognized, the more difficult questions that will need to be addressed include how much human input is required to qualify the user as the creator of a work such that it is eligible for copyright protection.

On June 6, 2023, New York Senate Bill S5640 / Assembly Bill A5295 (“S5640”) won near-unanimous final passage in the New York Assembly with a 147-1 vote, after being passed unanimously by the Senate the previous week.  If signed into law by Governor Hochul, the legislation would, effective immediately, add to New York labor law a new section 203-f that renders unenforceable provisions in employee agreements that require employees to assign certain inventions developed using the employee’s own property and time. 

GitHub, acquired by Microsoft in 2018, is an online repository used by software developers for storing and sharing software projects.  In collaboration with OpenAI, GitHub released an artificial intelligence-based offering in 2021 called Copilot, which is powered by OpenAI’s generative AI model, Codex.  Together, these tools assist software developers by taking natural language prompts describing a desired functionality and suggesting blocks of code to achieve that functionality.  OpenAI states on its website that, Codex was trained on “billions of lines of source code from publicly available sources, including code in public GitHub repositories.” 

On 27 April 2023, the European Commission (the “Commission”) proposed a new regulation on the licensing of standard essential patents (the “Proposal”).[1]  The objective of the Proposal is to facilitate standard essential patent (“SEP”) licensing negotiations by providing clarity on several aspects: transparency as to who owns SEPs and which SEPs are essential; transparency on fair, reasonable and non-discriminatory (“FRAND”) terms and conditions; and dispute resolution for the determination of FRAND terms.[2]  

In a unanimous decision published on May 18, 2023, the U.S. Supreme Court invalidated two of Amgen’s patents for its cholesterol drug, Repatha, making it more difficult for patentees to obtain broadly worded patents.[1]  The case – Amgen Inc. v. Sanofi – involves a dispute between the two pharmaceutical companies over the “enablement” requirement of 35 U.S.C. Section 112,[2] specifically how much a patent must disclose in order to “enable” a skilled person to make and use the claimed invention without undue trial and error.  The Supreme Court held that Amgen failed to provide enough detail to recreate the full scope of its claimed invention, and that if a patent claims an entire class of processes, machines, manufactures or compositions of matter then the patent must include sufficient information that enables a person skilled in the art to make and use the entire class.

The U.S. Supreme Court affirmed the judgment of the Second Circuit in the case of Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith in a 7-2 decision issued May 18, 2023, authored by Justice Sotomayor.  The Court held that the first factor of the copyright fair use test favored respondent photographer, Lynn Goldsmith, rather than petitioner, Andy Warhol Foundation for the Visual Arts (“AWF”).  The decision was limited to AWF’s commercial licensing of a silkscreen image of Prince, based on Goldsmith’s underlying photograph, to Condé Nast.  Below, we have highlighted the key factual background in the case and some takeaways from the Court’s decision. For more information, please see Cleary Gottlieb’s client alert.

What You Need To Know

  1. From 1 June 2023, a new EU unitary patent system (UPS) will become fully effective. A unitary patent (UP) is a European patent granted by the European Patent Office (EPO) to which, at the patent owner’s request, unitary effect is given for the territory of the EU Member States that have ratified the Unified Patent Court Agreement – currently, 17 EU Member States. UPs give patent owners uniform protection across participating EU Member States, removing the need for national validation procedures as well as individual national enforcement in each EU Member State.

As we continue to see the rapid development of digital technologies, such as artificial intelligence (“AI”) tools, legislators around the world are contemplating how best to regulate these technologies.  In the UK, the Government has adopted a “pro-innovation” agenda, with the aim of making the UK “an attractive destination for R&D projects, manufacturing and investment, and ensuring [the UK] can realise the economic and social benefits of new technologies as quickly as possible.”[1] 

On 16 March 2023, the US Copyright Office (“USCO”) published guidance on the registration of works containing AI-generated content. The USCO’s policy statement was released against the backdrop of the proliferation of generative AI tools which are able to create content based on user prompts. The USCO ultimately concluded that the “authorship” requirement of US copyright law refers to “human authorship” (in line with prior case law) and appears to reject the extension of copyright to works generated with the aid of AI technology outside of the user’s control.

On 15 March 2023, the UK ICO published an update to its Guidance on AI and Data Protection (the “Guidance”), following requests from the UK industry to clarify requirements for fairness in artificial intelligence (“AI”).  The Guidance contains advice on the interpretation of relevant data protection law as it applies to AI, and recommendations on good practice for organisational and technical measures to mitigate risks caused by AI.