Benefits of Using Copyrights to Protect Artificial Intelligence and Machine Learning Inventions
We previously discussed which portions of an artificial intelligence/machine-learning (“AI/ML”) platform could be patented or protected under trade secret, such as related to biotech and synthetic biology. Equally important to the discussion of how to protect components of an AI/ML platform, however, is the extent to which copyright protection may be useful or beneficial to the developer of the platform. In this post, we explain what can be protected by copyright in an AI/ML platform. We also explore when it is appropriate to protect portions of AI/ML platforms using a copyright, how to properly enforce copyrights, as well as when to consider using copyright protection over patent or trade secret protection.
Copyright allows an entity to protect tangible, original, and reproducible works, such as music, films, photographs, books, software code, and websites. Rather than protecting ideas or processes in protectable works, copyright can protect how ideas are expressed (including protecting how information is organized and structured in a body of work, or how information is conveyed in software code). Copyright owners enjoy many exclusive rights to their work, including the right to reproduce, distribute, perform, and display their work. Copyright protection can last several decades, far surpassing the period of time that a patent may be enforceable.
Copyright law affords protection for many components of an AI/ML platform, from the software itself to data used within the platform. For example, a copyright on source code can prevent others from reproducing the source code verbatim to use or distribute to others, reproducing the source code in a different computer language, and (in some circumstances) reproducing features of the source code (such as structure or non-functional features of the source code), even if not copied verbatim from the protected source code. Many companies have successfully protected their software from others using copyright protection. See, e.g., Microsoft Corp. v. Buy More, Inc., 703 Fed. Appx. 476, 2017 U.S. App. LEXIS 11454, 2017 WL 2790693 (where a court granted Microsoft $1,950,000 in statutory damages upon a summary judgment determination that Buy More had infringed Microsoft’s copyright on Windows 7 and Office 2007); Oracle America, Inc. v. Envisage Technologies, LLC, No. 3:21-cv-03540 (N.D.C.A), and Oracle America, Inc. v. NEC Corp. for America, No. 5:21-cv-05270 (N.D.C.A) (where Oracle reached settlements in less than a year in both cases); Whelan Assocs. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3rd Cir. 1986).
Unlike with patents, there are no subject matter eligibility requirements to obtain copyright protection for software; copyright protection can also cover characteristics of the software that cannot be protected by patents, such as how an algorithm is expressed in source code. In instances where an AI/ML platform is patent-ineligible or where the value of the platform does not only rely on the underlying algorithms implemented in source code, copyright protection can be a suitable alternative.
Many other components of an AI/ML platform may also be protected by copyright. For example, if an entity takes photographs that are subsequently used as training data, the photographs may be copyrightable. An entity may also obtain copyright protection over a compilation of data that, by nature of its arrangement, selection, or similar characteristics, is creative or original. See 17 U.S.C. § 103 (noting that compilations can be protected by copyright); but see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340 (1991)(where a telephone book was not copyrightable because the telephone information was uncopyrightable facts and the way in which the information was selected and arranged was unoriginal). Another example includes an AI/ML platform that uses training data generated from stock images that are publicly available or obtained from a third party.
