This is Allens

We first started talking about the intersection of AI and IP back in 2019. At that time, the uptake of AI in a corporate context was limited. But we anticipated the emerging IP issues and were starting to have discussions with our clients. Fast-forward to today and, with the explosion of generative AI that's occurred since 2022 and its widespread adoption by businesses, our clients are very engaged in understanding the IP implications of using AI tools and developing their own AI platforms. Every week, I’m faced with new questions that require creative, out-of-the-box thinking and approaches – there's nothing more rewarding as a lawyer than tackling novel, complex issues.

The rapid adoption of generative AI has outpaced legislative frameworks.

One of the most interesting aspects for me is observing how Australia fits into the international landscape when it comes to regulating AI – both in terms of its development and use. The rapid adoption of generative AI has outpaced legislative frameworks. We’re seeing a surge in cases overseas exploring the use of AI, particularly in the US and UK. Cases such as those brought by Getty Images against Stability AI and The New York Times against OpenAI, are challenging for traditional IP frameworks, forcing us to rethink concepts such as copyright subsistence, ownership and infringement when it comes to AI-generated content. It seems likely that we will see cases being brought in Australia before too long, so we are following the international litigation closely. These cases underscore the need for a balanced system that protects the rights of IP owners but also promotes innovation.

At the moment, AI outputs may not be protected by copyright in Australia, meaning anyone is free to use them. That raises questions around the commercial viability of investing in these products and whether reforms are needed—eg to grant AI a legal personality for the purpose of AI ownership. We’re keeping a close eye on potential regulatory and legislative developments in Australia, as well as developments occurring in the EU, UK and the US, given the global nature of the issues.

Beyond addressing these current issues, we need to look ahead to future challenges and opportunities. As AI becomes more integrated into business operations, the risk profile increases, making it essential for organisations to recognise these potential risks and take proactive measures to mitigate them.

The best advice I can give is to get ahead of the curve. Given the rapid uptake of AI, it's likely many organisations have adopted tools without fully considering the IP risks—and opportunities—involved. It’s crucial to establish governance frameworks, including assessing how AI tools are being used internally and externally. By addressing these issues now, businesses can better protect their investments, minimise risk and set themselves up to capitalise safely on the opportunities presented by AI.