Category: Intellectual Property

Falling Flat: Why AI Cannot Free Melodies from Copyright Protection with “All the Music” as an Example

Artificial Intelligence, Copyrights & Trademarks, Current Volume, Featured Articles, Intellectual Property, Recent Publications Leave a comment

By: Hayley Huber As artificial intelligence (AI) continues to surprise us with its humanlike abilities, it raises the question of whether AI-created music can or should be afforded legal protection. Particularly, how should copyright law treat melodies produced by an AI designed to algorithmically generate every possible melody? This article seeks to answer that question, ultimately concluding that AI-produced melodies are not copyrightable and that melodies are not merely facts undeserving of copyright protection, but something valuable to mankind and worth protecting by law. The article explores Damien Riehl’s All the Music project (ATM) and his arguments for why ATM’s outputs should be protected as a case study that AI-produced music is uncopyrightable and that melodies are more than uncopyrightable facts. The article shows that U.S. copyright law does not recognize machines as “authors” for copyright purposes, that reducing melodies to “just math” conflicts with mainstream legal and musicological understandings of melody, and that even if ATM’s outputs were copyrightable, most of its “melodies” would fail for lack of originality. Projects like ATM neither free existing melodies from copyright protection nor meaningfully reduce the risk of infringement litigation for musicians. Download Full Article (PDF) Cite: 26 Duke L. & Tech.

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Revisiting Eli Lilly v. Canada: Judicial Interpretation of IP Law and Exposure to Investor-State Disputes

Current Volume, Featured Articles, Intellectual Property, Recent Publications One comment

By: Yumu Chen Eli Lilly v. Canada was an investor-state dispute settlement (ISDS) case widely noted for signaling a regime shift in intellectual property (IP) protection from the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to ISDS. Its true yet often overlooked significance, however, lies in being a case of first impression on whether judicial interpretation of IP law may serve as a basis for state responsibility independent of denial of justice. To bridge that gap, this Note undertakes a close reading of the novel doctrinal discussion in Eli Lilly and related precedents, drawing implications for the broader theory of state responsibility arising from substantive judicial acts. It then applies those implications to domestic IP regimes through a comparative lens, with particular attention to common law jurisdictions, where judicial interpretation plays a central role in developing IP law. This Note argues that Eli Lilly suggests judicial lawmaking may be reviewable by ISDS tribunals as a basis for state responsibility, akin to legislative or executive acts, thereby exposing common law IP regimes to heightened risk of investor-state disputes. Nevertheless, the “regulatory chill” of which scholars have warned as a result of Eli Lilly may be overstated. Any reading of

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Can ChatGPT Keep a Secret? An Evaluation of the Applicability and Suitability of Trade Secrecy Protection for AI-Generated Inventions

Intellectual Property, Machine Learning, Trade Secrecy 2 comments

By: Gina L. Campanelli The rising popularity of generative artificial intelligence has sparked questions around whether AI-generated inventions and works can be protected under current intellectual property regimes, and if so, how. Guidance from the U.S. Copyright Office and recent court cases shed some light on the applicability of copyright and patent protection to AI-generated products; namely “authors” and “inventors” are limited to natural persons. But further developments in copyright and patent law are still lagging behind generative-AI’s rapid growth. Trade secrecy emerges as the most viable path forward to protect AI-generated works and inventions because ownership of trade secrets is not limited to natural persons. But trade secrecy has its drawbacks too, primarily inadequate protection outside of misappropriation. Further, trade secrecy precludes disclosure, which hinders greater scientific development and progress. This Note examines the suitability and applicability of copyright, patent, and trade secret protection for AI-generated works and inventions and posits alternative protection schemes. Download Full Article (PDF) Cite: 24 Duke L. & Tech. Rev. 1

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Beyond Patents: Incentive Strategies for Ocean Plastic Remediation Technologies

Intellectual Property, Patents & Technology, Science & Technology One comment

By: Jacob Stotser With a garbage truck’s worth of plastic being dumped in the ocean each minute, there is a dire need for effective technological solutions aimed at mitigating the marine plastic pollution problem. However, the reliance of the U.S. patent system on market demand to incentivize this type of innovation has proven insufficient in light of the peculiarities of “green” technologies. To remedy this, this article proposes a multi-faceted incentivization approach that looks beyond the U.S. Patent and Trademark Office to stimulate the development of remediation technologies through comprehensive regulatory interventions, the establishment of prize funds and other alternative incentive mechanisms, and targeted reforms to patent procedures. Download Full Article (PDF) Cite: 23 Duke L. & Tech. Rev. 114

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The GPTJudge: Justice in a Generative AI World

Alternative Intelligence, eDiscovery, Intellectual Property, Science & Technology 2 comments

By: Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, and Molly Xu Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to hire forensic experts to address AI-generated evidence, the ability of juries to discern authentic from fake evidence, and whether GenAI will overwhelm the courts with AI-generated lawsuits, whether vexatious or otherwise. GenAI systems have the potential to challenge existing substantive intellectual property (“IP”) law by producing content that is machine, not human, generated, but that also relies on human-generated content in potentially infringing ways. Finally, GenAI threatens to alter the way in which lawyers litigate and judges decide cases. This article discusses these issues, and offers a

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Causation and Conception in American Inventorship

Alternative Intelligence, Intellectual Property, Patents & Technology, Science & Technology Leave a comment

By: Dan L. Burk Increasing use of machine learning or “artificial intelligence” (AI) software systems in technical innovation has led some to speculate that perhaps machines might be considered inventors under patent law. While U.S. patent doctrine decisively precludes such a bizarre and counterproductive result, the speculation leads to a more fruitful inquiry about the role of causation in the law of inventorship. U.S. law has almost entirely disregarded causation in determining inventorship, with very few exceptions, some of which are surprising. In this essay, I examine those exceptions to inventive causality, the role they play in determining inventorship, and their effect in excluding consideration of mechanical inventors under current law. Download Full Article (PDF) Cite: 20 Duke L. & Tech. Rev. 116

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COVID Vaccines and Intellectual Property Rights: Evaluating the Potential for National Legislation Implementing Global Patent Waivers

Health & Biotechnology, Intellectual Property, Patents & Technology Leave a comment

By: Ashley DaBiere Debates over the proper scope of intellectual property protections during the COVID-19 pandemic have occupied newspaper headlines since the first vaccines were developed nearly three years ago. Scholars and key politicians from several nations considered the implementation of a global patent waiver in an effort to make the vaccines more widely available in developing parts of the world. Although the question of whether such a waiver would fulfill this goal remains empirically unanswered and up for debate, the legal structure of United States patent law would make its implementation by Congress difficult given the value placed on intellectual property protections since America’s birth. If lawmakers wish to consider limiting patent rights in an inevitable future pandemic or other national emergency, they would be wise to consider these legal issues ex-ante by revising the Bayh-Dole Act and the existing patent law takings provision. Download Full Article (PDF) Cite: 20 Duke L. & Tech. Rev. 68

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Viagra Did Not Work, but Michael Jordan Still Made It: Trademark Policy Toward the Translation of Foreign Marks in China

Copyrights & Trademarks, Featured Articles, Intellectual Property, International Leave a comment

By: Jyh-An Lee & LiLi Yang Most multinational enterprises (MNEs) register their original trademarks in Roman letters in China upon entering the Chinese market. However, many fail to develop and register corresponding Chinese marks because they do not understand local culture and consumers, overvalue consumers’ presumed brand loyalty, or neglect the accompanying trademark issues. This failure enables trademark squatters to register and hold the Chinese marks for ransom or local competitors to free ride on foreign marks using their Chinese translations or transliterations. This Article first introduces the complexity of translating a foreign mark into Chinese, which concerns complex linguistic, cultural, and business challenges. Based on recent court decisions, this Article systematically analyzes the legal basis on which an MNE may claim to protect the Chinese equivalent of its original trademarks. This Article then provides essential business and legal implications of China’s trademark policy toward translating foreign-language marks into Chinese.Download Full Article (PDF)Cite: 20 Duke L. & Tech. Rev. 36

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Food for Thought: Intellectual Property Protection for Recipes and Food Designs

Copyrights & Trademarks, Intellectual Property, Uncategorized 5 comments

By: Kurt M. Saunders and Valerie Flugge As any chef will tell you, cooking and food preparation is a creative, sometimes innovative, endeavor. Much thought and time is invested in selecting ingredients, developing the process for preparing the dish, and designing an interesting or appealing look and feel for a food item. If this is true, then it should come as no surprise that recipes, food designs, and other culinary creations can be protected by various forms of intellectual property, namely: trade secrets, design and utility patents, trade dress, but usually not copyright. This article considers how intellectual property law has been applied to protect recipes and food designs, along with broader issues relating to how these rights may overlap and their implications for competition. Download Full Article (PDF) Cite: 19 Duke L. & Tech. Rev. 159

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Crashed Software: Assessing Product Liability for Software Defects in Automated Vehicles

Intellectual Property, Patents & Technology, Science & Technology Leave a comment

By: Sunghyo Kim Automated vehicles will not only redefine the role of drivers, but also present new challenges in assessing product liability. In light of the increased risks of software defects in automated vehicles, this Note will review the current legal and regulatory framework related to product liability and assess the challenges in addressing on-board software defects and cybersecurity breaches from both the consumer and manufacturer perspective. While manufacturers are expected to assume more responsibility for accidents as vehicles become fully automated, it can be difficult to determine the scope of liability regarding unexpected software defects. On the other hand, consumers face new challenges in bringing product liability claims against manufacturers and developers. Download Full Article (PDF) Cite: 16 Duke L. & Tech. Rev. 300

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