#GLPoint / Creations made through AI software: the design industry

How is generative design reconciled with the traditional notion of authorship: a "new" role for the designer? 11 October 2023

In a wide variety of industries, increasingly, those involved in design are familiar with the meaning of "generative design".

"Generative design" is defined as that iterative design exploration process that uses artificial intelligence software to generate a range of design solutions that meet a set of preset parameters (such as materials, production methods, cost constraints etc.).

Among the countless fields in which "generative design" is increasingly being used, one need only mention the automotive and furniture industries.

Unlike traditional design, in which the process starts from a model that is based on an engineer/designer's knowledge, generative design starts from constrained parameters and uses artificial intelligence to generate the model.

In fact, computers are no longer just used as passive machines – that is, mere working tools – but on the contrary, they develop, in a very short time, with the help of artificial intelligence algorithms, design ideas with almost infinite alternatives. In fact, so-called "generative design" can produce hundreds of design options in a very short time based on predefined parameters set by the user.

The Italian legal literature in the field of industrial law and beyond has thus wondered about the new role of designers in this process and raised inevitable questions about the protectability and ownership of such products made through artificial intelligence.

The question regarding the impact of the use of AI software in designs on the profile of protectability –that is, the substantive requirements of novelty and individual character of designs – has not raised any particular issues.

On the contrary, however, the profile of the ownership of designs and models has raised quite a few questions. Indeed, among the main questions that arise in the doctrine of AI and designs is that of the attribution of authorship status and, therefore, the ownership of the related rights.

How is generative design reconciled with the traditional notion of authorship? What role can be attributed to, for example, programmers, software houses, those involved in validating/selecting designs for production?

Can the owner of the "AI kit" used to generate a given design be considered an "author"?

For example, it has recently been argued in doctrine that the regulation concerning the designs and models should be updated with a legislative provision that, in the case of creations generated independently by an AI system, expressly assigns this right (not to the author, but) to the party that has made the necessary investments.

The changing role of designers in the creative process, which is increasingly being carried out "autonomously" by intelligent systems, has thus led to inevitable reflections on the topic.

However, the approach that still seems to prevail seems to remain that of recognizing designers, whether they intervene in defining upstream parameters or in the final phase of choice and validation, as having a role of “authors”.

This “new” role is well exemplified by the image provided by Holger Hampf, the President of Designworks, a BMW subsidiary, according to whom "the designer is becoming more like a conductor; setting directions and making decisions".


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