Copyright protection is weaker than patent protection

Of course, copyright is generally a weaker form of protection than patent protection. 260 For instance, independent creation is a viable defense to claims of infringement under copyright law, 261 whereas patent law provides no equivalent defense. 262 Hence, AI developers wishing to protect functional elements of their AI-related software via copyright would have to demonstrate, among other things, that the purported infringer actually copied the software from them (rather than coming up with it on their own). 263 But if the AI developer is also maintaining the copyrighted software as a trade secret, then in many cases proving that the alleged infringer had access to the software may be impossible. 264 With a patent in place, on the other hand, the AI developer would merely need to show that the patent covers the allegedly infringing product, regardless of whether the alleged infringer had access to the patent owner's AI innovations. 265