Artificial intelligence has radically transformed the way we conceive, develop and use software. What was once an exclusively human creative process now incorporates systems capable of generating code, optimizing algorithms, and even creating entire applications with minimal intervention.
This technological revolution raises fundamental questions about who holds the rights to these creations and how to adequately protect them in a legal framework that was not designed to contemplate this new scenario, especially in terms of intellectual property.
The current legal framework for intellectual property was conceived at a time when the human author was the only possible creator. Patent, copyright, and trade secret laws were premised on clearly identifiable authorship attributable to a specific natural or legal person.
However, when an algorithm machine learning generates functional code or when a neural network produces innovative solutions to complex problems, these premises are shaken and the need arises to rethink traditional concepts of intellectual property that seemed immutable.
Navigating this environment requires in-depth knowledge of both the technology and applicable law. Companies that are committed to innovation need the support of lawyers who are experts in digital law, such as eDefense, who understand the implications of developing software with artificial intelligence and know how to design effective intellectual property protection strategies adapted to each case and sector of activity.
The authorship dilemma in AI-generated code
One of the most debated issues currently is determining who owns the rights to software created using artificial intelligence tools. Is it the developer using the tool? The company that created the AI model? Or is the generated code left in legal limbo without clear intellectual property protection? The answer is not simple and has direct implications on the R&D investments of thousands of companies.
Courts in different jurisdictions have begun to speak out, although the responses vary considerably depending on the legal tradition of each country. In the United States, the Copyright Office has maintained that only works with human authorship can be registered, while in Europe the debate remains open, with voices advocating to adapt intellectual property regulations to this new technological reality. The European Commission, in fact, has already started consultations to evaluate possible reforms.
Protection strategies for technology companies
Given this panorama of uncertainty, organizations that develop software with AI components must adopt comprehensive intellectual property protection strategies. Trade secrecy emerges as a particularly relevant alternative, since it does not require proving human authorship and protects the competitive value of algorithms as long as appropriate confidentiality measures are maintained. This route is particularly attractive for startups and companies that cannot afford long registration processes.
In addition, exhaustive documentation of the development process is essential. Recording human contributions in each phase—from conceptual design to model training—makes it possible to establish a chain of authorship that facilitates the defense of intellectual property rights in the event of any controversy. Likewise, contracts with employees, collaborators and technology providers must be updated to expressly contemplate the ownership of AI-assisted creations, avoiding gray areas that could lead to legal disputes.
Towards a new regulatory paradigm
The European legislator is already working on proposals that could clarify the legal status of creations generated by artificial intelligence. Meanwhile, prudence advises combining multiple intellectual property protection mechanisms: copyright on elements clearly attributable to humans, trade secrets for proprietary algorithms, and solid contracts that protect the chain of ownership. This is a multi-layered approach that minimizes risks and maximizes effective protection.
Organizations that develop software with AI components must adopt comprehensive intellectual property protection strategies
The age of artificial intelligence does not invalidate intellectual property; forces her to evolve. Companies that anticipate these changes and appropriately structure the protection of their digital assets will be better positioned to compete in an economy where software—and control over its intellectual property—makes the difference between leading the market or falling behind.
Auditing data streams used to train models, reviewing licenses for third-party tools, and developing internal policies on the use of generative AI are just some of the tasks that require specialized advice. An error in any of these areas can expose the organization to costly litigation or the loss of intangible assets of high strategic value.
