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Drones and Intellectual Property: A Future Headache

by Dr Tim Fray

Drones, or to give them their proper term, Unmanned Aerial Vehicles (UAV’s) are integrating into our society whether we like it or not. The Agri sector and the Construction sector are two areas that have seen dramatic surges in UAV usage over recent years. It feels like a step forward doesn’t it? It’s no surprise that entrepreneurs are hastening into the market now estimated to be worth over $22.5 billion, excluding government spend.

Presently UAV usage is mostly by remote control, but there is a push towards autonomous UAV usage, and in some countries autonomous delivery by UAV of medical supplies is already underway. This is combined with the drive for so called “Big Data” and massive data collection enterprises to feed into complicated algorithms and mathematical models to design the next generation of products. However what about the data and images created by a UAV operating autonomously? Who owns its most precious commodity – its output data?

Copyright exists in any original literary original literary, dramatic, musical or artistic works. But we saw from the now famous “Monkey Selfie” case, where a camera was set up so that a monkey took a picture of itself, that for copyright to exist there must be a human author.

A UAV is a non-human and there its output presents the operator or the data collector with the potential inability to protect said data or to commercialise it.

This situation is compounded where a computerized device is autonomously capturing images or data without human input. Therefore, works created automatically by a computer (in this case, a UAV or robotic sensor) with no human input may not meet the legal tests for existence and ownership of copyright and businesses could potentially find themselves with no copyright owner.

The important thing is to distinguish whether the works have been created using a computer or by a computer, or perhaps both. Under the Copyright, Designs and Patents Act 1988, work produced by a computer, or with the assistance of one, can be afforded copyright protection though. The copyright is owned by the person who enabled the generation or creation of the work. Human skill is arguably required to enter information into a computer program in order to achieve a specific result. Consequently, works created using a computer are not computer-generated works, and it is the person who uses the computer to create the works who is recognised as the author. In the case of UAV’s then it might reasonably be argued that the UAV operator owns any copyright.

But what about works created by a computer? For UAV’s this might arise when the vehicle is operating autonomously. No human author is involved. Little human skill or input is required beyond physically turning on the UAV and sending it on its way. Neither can the operator influence the form or content of the output. Who, then, is the author of the generated work? Presently, the author is the person who has devised the rules and logic used to create the work (Nova Productions Ltd v Mazooma Games Ltd [2006]), but there has been a very limited number of cases discussing this point. As a result I don’t think that a reliance on precedent is warranted here.

I think that with UAV’s it could be that so-called “Intermediate works” are more relevant. These are works where authorship can be considered as the result of the skill and effort of the person using the computer, the person who created the program being used, and the person who created any database that the program might use. A UAV operation involves an operator, a software developer and a database creator and these people or groups, could all have a legitimate claim to authorship. Alternatively, they could be regarded as joint-authors. What a headache that would create.

These days, when data, database rights, and data security are big topics, I am surprised that this issue has not reared its head already. Perhaps it is the real reason we have not seen the true integration of autonomous UAV’s into our society before now. I hope this is not the case.

I will be interested to hear from anyone who has had interaction with UAV’s and had experience of any related Intellectual Property issues.

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