Intellectual property law may need to be revised to catch up with the arrival of innovative products and works of art created by computers, a Supreme Court justice has said. 'The law may be a little way behind the technology,' Lord Kitchin (David Kitchin QC) told IP specialists in London this week. 'But time and time again, law makers have met challenges such as these. Now is the time to do so for AI.'

The creation of seemingly original and creative works by AI is now reality, Lord Kitchin said, citing last year's record-breaking sale of a computer-generated painting. ‘Portrait of Edmond Belamy’ fetched $432,000 at Christie’s in New York. 'Has the time come to accept that modern computers and algorithms can introduce any necessary element of originality which merits [copyright] protection?' Lord Kitchin asked. 'Is there an absurdity in distinguishing between the protectability of the "Portrait of Edmond Belamy" and traditional work of lesser artistic interest?'

AI also has implications for patent law, Lord Kitchin said. He noted that machine-learning programs which mimic the neural networks of the human brain are 'increasingly capable of generating new and interesting ideas for themselves'. An immediate question is whether the basic building blocks of AI should themselves be patentable. At present computer programs and mathematical models are not patentable 'as such'; Lord Kitchin suggested it might be time for 'new approaches'. He asked: 'Is the exclusion of inventive software still appropriate? If it is, should that exclusion extend to non-obvious advances in the building blocks of AI, irrespective of their application?' 

More fundamental questions are raised by inventions created by machines. Today, patent systems are intended to encourage and reward innovation, Lord Kitchin said. 'Do the same considerations apply to inventions generated by AI? I am not sure that they do. Computers do not respond to rewards or incentives, although maybe one day they will.'