Expansive public domain spurs disruptive innovation.

AI & IP Policy: Regulating Disruptive Innovation. Intellectual property law has become the new battleground for ideas on how societies should deal with transformative change caused by disruptive tech.219 While trying to fill legislative gaps when laws cannot keep up with the pace of innovation, lawyers are becoming the policy makers. In this context, this section presents ten thoughts and policy suggestions on social, inclusive and innovation-friendly AI and data regulation.220 I start with a short legal policy vision of the direction I feel we should take. AI & IP for Dummies More or less protection for the owner of IP rights each has both advantages and disadvantages. More protection could stimulate costly and labor-intensive innova- tion, because that protection is offered as a reward. But the opposite, open access, also has social benefits. The degree of IP protection is therefore based on a consid- eration of pros and cons, and thus has a legal-political character. IP law policy aims to implement a regime that strikes a balance between un- derprotection and overprotection of IP rights—a regime that searches for an innova- tion optimum. That this is not an easy task as illustrated by IP history, which shows a pendulum swinging between underprotection and overprotection.221 Right now, we are in a stage of overprotection.222 In other words, intellectual property rights are getting too stretched. Besides that, IP law is poorly structured. This is not good because disruptive technologies such as AI, blockchain, and big data require a balanced, innovation-friendly regime. Solutions to resolve nega- tive effects that overprotection has are available. These include, on the one hand, technology-neutral open standards and exceptions or limitations such as the Ameri- can fair use principle, which allow more breathing room for both consumers and online platforms; and on the other hand, the introduction of an articulated public domain for AI Creations and Inventions (Res Publicae ex Machina). In general, we need more flexible IP laws and more open access. IP overprotection leads to market barriers for start-ups and SME’s and hinders international trade. When expressing preference for open access, AI & IP policy makers should ask themselves 2 questions: 1. To what extent can the assessment of the magnitude of the advantages and disadvantages of more open access versus more layers of IP rights be substantiated? This could, inter alia, be substantiated by sector specific empirical research. 2. And how and why do I weigh the pros and cons of this substantiation, and thus arrive at a preference for more open access? The goal should be at least a Pareto optimum/equilibrium, and preferably a Pa- reto improvement. B. 10 AI Related Policy Suggestions First of all, in order to have a sensible short-to-medium-term policy discussion about IP law in the context of emerging tech, it is important to demystify AI, resist anthropomorphisation and avoid speculation about the distant future. The state of the art is that we do not have Strong or General AI yet. What we have today is weak, pattern-based AI that is reaching task specific performance.223 It is a suite of tools that can be used for computer deductive reasoning and machine learning. Second, the unchartered terrain of IP and AI law makes it possible for legisla- tors to harmonize the acquis for AI internationally. For example, this can be done by introducing an official PD mark for AI Creations and Inventions (Res Publicae ex Machina). A harmonized, global acquis prevents forum shopping to countries such as the UK, Australia, and Japan and promotes legal certainty. It is vital that countries stop stretching IP rights at the expense of public domain and fundamental rights such as the right to information that are enshrined in the EU Charter and the USA Constitution. Third, AI related IP law policy should recognize the social value of disruptive technology and resist protecting settled market players who benefit from the status quo.224 IP law should not create barriers for new market entrants.