Rethinking Software Protection

TL;DR: This chapter starts with a short technical description of what AI is, and identifies those parts of AI applications that constitute software to which legal software protection regimes may be applicable, before outlining those protection regimes, namely copyright and patents.

Abstract: The core of artificial intelligence (AI) applications is software of one sort or another. Of course, if software were a mere ingredient, we may have had AI applications already decades ago. After all, it was Allen Touring who in the 1950s developed the first test for AI and concepts surrounding it. But while available data and computing power are important for the recent quantum leap in AI, there would not be any AI without computer programs or software. Therefore, the rise in importance of AI forces us to take — once again — a closer look at software protection through intellectual property (IP) rights, but it also offers us a chance to rethink this protection, and while perhaps not undoing the mistakes of the past, to at least adapt the protection so as not to increase the dysfunctionality that we have come to see in this area of law for the past decades. To be able to establish the best possible way to protect — or not to protect — the software in AI applications, this chapter starts with a short technical description of what AI is, and readers are referred to other chapters in this book for a deeper analysis (1). It continues by identifying those parts of AI applications that constitute software to which legal software protection regimes may be applicable (2), before outlining those protection regimes, namely copyright and patents (3). The core part of the chapter analyses potential issues regarding software protection with respect to AI using specific examples from the fields of evolutionary algorithms and of machine learning (4). Finally, the chapter draws some conclusions regarding the future development of IP regimes with respect to AI (5).