Commentators often say the law hasn’t caught up to AI, and that’s why IP doesn’t cover AI-generated content. I’m not so sure.

Why should we dole out patents or copyrights – monopoly rights – for content or inventions generated by AI? IP is the exception to society’s handling of creativity, not the rule. Ideas and most other products of creativity belong to everyone, not their creators. So a not-protected default makes sense.

Also, it’s not clear current gen-AI creates anything. Arguably it just remixes existing content from training data and other sources. Why should the law give monopoly rights for that remixing? (To be fair to our synthetic friends, the line between remixing and human creation isn’t clear. But current AI doesn’t even approach the complexity and mystery of the cells and chemicals that power human creativity.)

Note also that IP does apply to some AI-generated assets, in the form of trademarks and trade secrets. Those rights don’t come from creation but rather from registration and/or use in commerce, for trademarks, and secrecy + competitive value for trade secrets. So the law doesn’t care who/what created a logo, brand name, or secret sauce, which seems appropriate.

Copyright goes back to the Statute of Anne in 1710. The concept underlying patent is even older. But while those systems have their problems in the modern world, I’m not sure AI is one of them.
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These comments come from my rough draft of the next edition of The Tech Contracts Handbook, expected in 2027!

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