This chapter delves into the complex legal questions surrounding AI-generated content and intellectual property rights. Because copyright and patent law primarily focus on human authorship and inventorship, the emergence of AI raises questions about the extent to which AI systems can be considered creators. The chapter explores the possibility of AI-generated works receiving copyright or patent protection and the challenges in determining authorship and originality in the context of AI. Additionally, the chapter examines the potential impact of AI on trademark and trade secret law. It discusses whether AI systems can own or hold intellectual property rights, as well as the implications for businesses and individuals who rely on AI-generated content.

This chapter draws all the threads together, highlighting the profound impact that artificial intelligence is likely to have on the landscape of intellectual property. It summarizes the core arguments of the book and sets out the author’s proposed strategies for adapting intellectual property law to the age of AI. By embracing these approaches, the chapter argues, one can ensure that intellectual property law continues to protect human creativity and innovation in the digital age.

Since the advent of ChatGPT in November 2022, public discourse has intensified regarding the intersection of artificial intelligence and intellectual property rights, particularly copyright. Large language models (LLMs) like ChatGPT and Gemini have sparked debates about what deserves copyright protection and what constitutes copyright infringement. Key questions arise: Are LLM-generated outputs original enough to merit copyright protection? And do they infringe upon existing copyrighted works used in their training data? This chapter delves into these issues, examining the legal and ethical implications of training LLMs on copyrighted material. The chapter also explores the concept of fair use, the potential for transformative use of copyrighted works, and the evolving landscape of copyright law in the age of AI.

This chapter examines the theoretical foundations of intellectual property law in the United States, setting the stage for understanding the challenges posed by artificial intelligence. The chapter focuses on utilitarianism as the dominant theoretical framework for US IP law, contrasting it with non-consequentialist theories. It provides a brief overview of the four major IP regimes:

Patent patent and copyright, which are explicitly grounded in the Constitution’s mandate to "promote the Progress of Science and useful Arts"; Trademark, which aims to reduce consumer search costs and ensure fair competition by protecting source identifiers; and Trade secret, which has a more convoluted history but has increasingly focused on promoting innovation and protecting confidential business information. The chapter emphasizes that US IP law prioritizes practical, societal outcomes over moral or philosophical considerations. It sets the stage for subsequent chapters that explore how AI’s emergence challenges these traditional theoretical underpinnings and the practical functioning of each IP regime.

This chapter explores the concept of limiting the supply of intellectual property as a strategy for preserving value. Drawing inspiration from the diamond industry, the author discusses how restricting the flow of products onto the market can increase their perceived value. The chapter examines the potential implications of AI on intellectual property, particularly in the context of human-made goods. The chapter argues that by limiting the supply of protected works, one can create a market for certified human-made goods that are valued for their unique, artisanal qualities. This approach echoes the historical shift towards artisanal goods in response to the rise of mass production. Ultimately, the chapter suggests that by carefully considering the supply and demand dynamics of intellectual property, society can ensure that the value of human creativity and innovation is preserved in the age of AI.

This chapter explores how advancements in artificial intelligence are impacting the landscape of intellectual property law. The chapter analyzes the ways in which AI can challenge traditional notions of authorship, originality, and invention. By automating creative processes and generating new ideas, AI can reduce the pool of human-created works eligible for intellectual property protection. The chapter delves into the legal and ethical implications of these developments and discusses potential strategies for adapting intellectual property law to the AI age.

This short chapter discusses the impact of lab-grown diamonds on the traditional diamond industry and the value of a diamond and uses it as an allegory for AI’s potential impact on intellectual property. Additionally, the chapter touches upon consumer preferences and the growing trend towards alternative gemstones, as well as the implications for the future of the diamond industry, again drawing parallels to the IP system.

I consider myself not just a techno-optimist, but also a techno-realist. For example, emerging technologies such as artificial intelligence can bring extraordinary advancements for society and individuals alike. They can also, however, bring their fair share of challenges, and for AI, one of those problems is trustworthiness.