Machine Learning Models Under the Copyright Microscope: Is EU Copyright Fit for Purpose?

This paper is based on a presentation given in December 2019 at the Lund’s University conference ‘Artificial Intelligence (AI), Data Protection and Intellectual Property in a European context’. The purpose of this article is to analyse the suitability of the copyright system over Machine Learning (ML) models, the so-called ‘core components’ of ML systems. Computer programs protection has always caused certain difficulties for intellectual property law. Internationally, agreement was reached in the 1970s to protect computer programs as literary works of copyright. ML models have been called ‘learning algorithms’, ‘AI computer programs’, and ‘software 2.0’. Yet there is no unanimity about what they are technically. This is relevant from a copyright perspective, because the regime of protection granted by copyright will be different depending on whether the ML model qualifies as a computer program, as a mathematical method, or as another type of work. Additionally, all proprietary and open source software licensing relies on copyright protection. In most open licenses, the license is not triggered if it is applied to something that is not protected by copyright (or related rights). Thus, it seems pertinent to question whether EU copyright law provides adequate protection for the core components of machine learning systems, the ML models.