AI-generated content and IP rights: Challenges and policy considerations

The artificial intelligence (AI) industry represents a massive economic sector that had reached USD 200 billion as of 2023 estimates. Projections by Statista indicate that the AI market could exceed USD 1.8 trillion by 2030. The rapid expansion of the AI sector reflects its power to revolutionise multiple industries, including medical care, education, finance, and artistic creation.

Meanwhile, the most notable recent development is DeepSeek-R1, a new open-source AI model that matches the capabilities of major commercial AI systems and OpenAI platforms while significantly reducing costs and computing needs. However, this widespread adoption presents important challenges regarding the management of AI in relation to intellectual property (IP).

What is intellectual property?

IP safeguards creations of the human mind and ensures that creators maintain both financial and ethical rights over their work. This legal framework encompasses:

• Copyright protection, which covers creative works such as books, music, art, and media productions
• Trademarks, which protect distinctive business identifiers such as logos and brand marks
• Patents, which secure rights over inventions and industrial design rights that protect products

IP grants its owners exclusive control over their creations, with patent holders being able to restrict the use of their inventions, while copyright owners can prevent unauthorised copying of their works.

The ever-increasing use of AI is raising critical IP challenges, such as whether AI-created works deserve copyright or patent protection. The emergence of AI deepfakes (AI-generated or manipulated images, videos, and audio content) has further complicated IP-related matters, including personal likeness rights, leading some experts to propose entirely new forms of IP protection.

IP ownership of AI-generated content

Ownership of IP rights for AI-generated content is a complex issue. Traditional IP laws typically attribute inventorship to human creators. However, AI systems and tools, with their ability to autonomously generate inventive solutions, challenge this paradigm. Some argue that AI lacks the legal capacity to own rights, leading to varied opinions on who should be recognised as the rightful owner.

The UK Supreme Court upheld previous rulings confirming that AI-generated inventions cannot be patented in the 2024 DABUS case, which involved the AI system DABUS. The UK’s patent authority, UKIPO, rejected patent submissions because they did not name a human inventor. The DABUS case highlights a core legal question: can AI systems be legally recognised as inventors? It also raises broader concerns about how inventorship should be defined and attributed in the age of AI. A key challenge is determining whether AI innovations represent genuine creativity or are simply outputs of their programming and algorithms.

When AI creates artistic content such as songs, paintings, or written works, it raises complex questions about copyright ownership and attribution. Training AI systems on vast amounts of data also raises copyright concerns, particularly when the data includes protected works used without authorisation. The USA Copyright Office guidelines state that AI-generated content lacking human authorship is not copyrightable. Specifically, when an AI system determines the expressive elements of its output based solely on a human prompt, the resulting text or image cannot be protected by copyright.

Recent copyright cases, such as Alter v. OpenAI, Andersen v. Stability AI, and Concord Music Group, Inc. v. Anthropic PBC, highlight the need to modernise IP laws to address the challenges posed by AI-generated inventions.

Global multilateral discussions on AI and IP

In March 2024, the UN General Assembly passed a resolution promoting ‘safe, secure, and trustworthy AI systems’, emphasising human rights protection, noting AI’s potential to advance the sustainable development goals (SDGs), and stressing the need for equitable international cooperation in access to AI technology.

In December 2019, the World Intellectual Property Organization (WIPO) initiated a public consultation on AI and IP policy, receiving over 250 submissions. In May 2020, WIPO published a revised issue paper incorporating feedback from the consultation process. During the tenth session of the WIPO meeting in 2024, a key discussion centred on whether AI-generated works merit copyright protection. These discussions at a multilateral level underscore the necessity of further deliberation on AI and IP-related issues at continental and national levels.

Several policy initiatives broadly covering AI have emerged, including, but not limited to, the EU AI Act, the OECD AI Principles, and the African Union Continental AI Strategy.

Many regulations and policies are primarily focused on ethics, accountability, and risk management, yet barely address the intersection of AI and IP. This may be due to the fact that AI technology is evolving faster than legal systems can adapt. As AI and IP-related issues continue to evolve, it is essential to foster ongoing discussions in this area.

The future of IP laws

The evolution and widespread use of AI are necessitating a fundamental transformation of IP laws to address contemporary challenges. This modernisation effort must consider several critical aspects, including:

• Determining how AI fits into creative and inventive processes while protecting human contributions

• Establishing legal structures that balance the encouragement of innovation with the ethical and economic implications of AI-generated content
• Fostering international collaboration to ensure AI regulations promote fair access, sustainable growth, and consistent cross-border oversight

As AI continues to reshape various sectors of society and the economy, the intersection of AI and IP law will remain a crucial area of legal, ethical, and technological debate. Policymakers, innovators, and legal experts must work towards developing flexible, progressive IP frameworks that encourage innovation while safeguarding creators’ rights in an increasingly AI-driven world.

Kelvin Nkai is a trade policy and strategic management professional currently serving as the Principal Officer in the Export Trade Market Research Department at the Kenya Export Promotion and Branding Agency (KEPROBA). He recently completed Diplo’s AI Apprenticeship course.

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