IP is a Terrible Term for AI Technology

By Jill Hubbard Bowman

The short-hand term “IP” or “intellectual property” is a terrible term for describing AI technology for several reasons. First, as described in the last post of AI Law Maze Map, intellectual property law may not protect many types of AI technology, depending on the law of the country of origin. If technology isn’t protected by IP rights, it’s not “IP”. According to Black’s Law Dictionary, intellectual property means:

1. A category of intangible rights protecting commercially valuable products of the human intellect.
   • The category comprises primarily trademark, copyright, and patent rights, but also includes trade-secret rights, publicity rights, moral rights, and rights against unfair competition.
2. A commercially valuable product of the human intellect, in a concrete or abstract form, such as a copyrightable work, a protectable trademark, a patentable invention or a trade secret.[i]

This definition implies, and is commonly understood, to mean that intellectual property is either intellectual property rights or technology protected by intellectual property rights. The name artificial intelligence captures the primary problem. If technology isn’t a product of human intellect and protected by intellectual property rights, it’s questionable and potentially misleading to call the technology “IP” and imply protection of IP law. [ii]

Second, because the term “IP” may mean rights or technology or both, use of the simple term IP to refer to technology, especially AI technology, can cause confusion and miscommunication. In twenty-five years of practicing IP law and doing technology deals, I’ve seen more ambiguity and mistakes in term sheets, memorandum of understandings (MOUs), and contracts because of the use of the term “IP” than any other term. With creativity, “IP” may mean up to five different things in a single paragraph. [For non-lawyers: in legal documents, a term should only have one meaning.]

Tip:  Be clear. Avoid using the term IP to refer to AI technology to prevent confusion, miscommunication, and assumptions about legal protection. Instead, refer to the specific type of technology in its embodied form, e.g., a dataset of labeled photographs, a model, or software. . .

 Garner, Bryan, Black’s Law Dictionary, (West Publishing Company, Fourth Pocket Edition, 1996) p. 395.

[ii] An exception to the requirement for human intellect in the U.S. is data collected from machines, which may be a trade secret if the data is secret, protected, and confers a (potential) economic advantage. Trade secret law is more about protecting the investment in collecting, organizing and protecting information than incentivizing human creativity.