This article was co-authored by Lucas Robinson.

AI is evolving at pace. To date, the law is not keeping up. All businesses are using and looking for more ways to utilise AI to improve efficiencies and drive revenue. However, there are many unknowns in this space. This means businesses need to proactively manage their AI risks and ensure they are asking the right questions as the law and regulation continues to evolve in this area.

The table below outlines some key questions for brands businesses to consider regarding their IP rights and risks.

Questions to ask

IP rights and risks  Related issues  

Your IP rights

  • Can you / do you own the output?
  • Can you protect or enforce a monopoly over the output?
  • Can you ensure your own future use and freedom to operate using the output? 

Your confidential information

  • Are you ensuring your trade secrets are not lost by being used as a prompt, or included in the inputs and outputs?

Third party IP rights

  • What is going in (data and prompts) - do you know who owns these?
  • What is coming out - who owns it and who can use it?
  • Does the output incorporate third party IP such as trade marks / trade dress / copyrights / designs / confidential information or patented technology?
  • Is there a right of publicity issue?

Remember the use online is global and therefore global risks can accrue.  

Data and privacy

  • Are you confident with the compliance from a data and privacy perspective across any inputs, prompts and outputs?   

The AI system terms and conditions

  • What do they say about:
  • ownership;
  • freedom to use; and
  • liabilities and indemnities (including for IP infringements)? 

Reliability and ethical issues

  • What is the AI knowledge base built on and how is it growing / adapting?
  • Is there accuracy in the system?
  • Is there any inherent bias or prejudice in the system?
  • Can the system be misused or manipulated?
  • Do you need to alert consumers and customers to the AI use?
  • Is the use misleading? 
   

Ensuring you know the answers to these questions when deploying AI in your business will put you in a good position to deal with issues that arise and current and future legal risks and regulation.



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