AI-Generated Designs and IP Rights in the UK: A Shifting Landscape

The increasing use of artificial intelligence (AI) in the design process is raising critical questions about intellectual property (IP) rights in the United Kingdom. Whereas AI offers exciting possibilities for creating innovative designs – spanning clothing, furniture, graphical user interfaces, and branding – the legal framework surrounding ownership and protection remains uncertain. This article examines the current state of play, potential future changes, and practical steps businesses can take to safeguard their interests.

Is Protection Available for AI-Generated Designs?

The situation is complex, with varying levels of clarity depending on the type of design protection considered. Registered Designs currently offer the most straightforward path, but even this is under review.

Registered Designs

Registered Designs protect the visual appearance of a product, including its shape, contours, colors, and ornamentation. Registration lasts for up to 25 years and is relatively inexpensive. Crucially, the UK currently allows Registered Design protection for “computer-generated designs without a human author” [1]. But, the government is consulting on abolishing this provision [1]. If abolished, only designs with demonstrable human input would be registrable.

Supplementary Unregistered Designs (SUDs)

SUDs automatically protect the appearance of a design when it is first disclosed to the public in the UK, but only for three years and require proof of copying for infringement. The legislation is silent on whether SUDs apply to wholly AI-generated designs, with the government leaning towards a position of non-protection [3]. This is a concern for industries like fashion, which frequently rely on SUDs for short-lived designs.

Copyright

While copyright law technically allows for protection of “computer-generated works without a human author,” its practical application is uncertain and also subject to government consultation [4]. Copyright protection is limited to a slight number of designs deemed to be works of artistic craftsmanship.

Unregistered Design Right (UDRs)

UDRs protect the shape or configuration of 3D articles, provided they are original. Like copyright, UDR protection is expressly available for “computer-generated designs without a human author,” but faces similar uncertainties and potential abolition [4].

What Does This Mean for Your Business?

Businesses utilizing AI in their design processes should consider the following steps:

• Registered Design Protection: Prioritize applying for Registered Design protection where possible, as it currently guarantees protection for AI-generated designs (subject to standard requirements).
• Functional Designs: For designs ineligible for Registered Design protection, rely on UDR (acknowledging potential legal ambiguities) or ensure human designer involvement.
• Prepare for Abolishment: Anticipate the potential abolishment of design protection for wholly AI-generated designs and plan accordingly, prioritizing human input.
• International Protection: When seeking protection overseas, prioritize human designer involvement, as many countries do not recognize protection without a human author.
• The Role of the Human Designer/Author: The determination of whether a human designer/author exists is not always clear-cut. Detailed, creative prompts may be sufficient to establish authorship.
• Maintain a Detailed Paper Trail: Document the design creation process meticulously, including prompt history, iterations, and human contributions. This audit trail could be crucial for demonstrating ownership.
• Exercise Caution in Communications: Avoid publicly overstating that designs are “AI-generated” to preserve perceived ownership and value.
• Educate Your Business: Ensure awareness of the risks and thoroughly review the use of AI within the design process.
• Review Agency Agreements: Assess how outside agencies utilize AI and ensure agreements adequately address IP ownership.
• Stay Informed: Monitor developments in legislation and government consultations regarding AI and IP rights.
• Consider Ownership: Determine ownership of rights in AI-generated designs, noting that standard GenAI platform terms often assign IP rights to the user.

The UK’s first “Copyright vs. AI” decision in Getty Images (US) Inc & ors vs. Stability AI Limited clarified that the case does not determine whether training AI models infringes copyright, and that an AI model itself cannot be an infringing copy [2].

The legal landscape surrounding AI-generated designs is rapidly evolving. Proactive planning, careful documentation, and a focus on human involvement will be essential for businesses seeking to protect their innovations in this dynamic environment.