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Saudi New Draft Intellectual Property Law

Saudi published last week a new draft Intellectual Property Law on its national public consultation portal. This is an interesting proposed piece of legislation that aims to improve the intellectual property framework in Saudi by addressing the relationship between intellectual property and artificial intelligence, addressing the issues relating to the creation of intellectual property in outer space by Saudi-funded space missions, and filling a number of existing gaps in Saudi intellectual property laws relating to ownership, licensing, and enforcement of intellectual property rights.

The new draft Saudi Intellectual Property Law is interesting because it aims to create a general framework for intellectual property in the country, rather than replace existing legislation. This allows existing copyright, patent, trademark, and other intellectual property laws to operate within the framework created by the proposed legislation. The structure and concept of this legislation is unique in the GCC, where each state has specific laws for different categories of intellectual property. No GCC state currently has a single comprehensive intellectual property legislation, let alone one like the proposed meta-law in Saudi Arabia.

The draft Saudi Intellectual Property Law is a substantial document that contains 58 articles, divided into 10 chapters that cover various aspects of intellectual property. These include the grant of rights, artificial intelligence, intellectual property management, security-related intellectual property, intellectual property rights in outer space, ownership, licensing, permits for intellectual property activities, and enforcement, among others.

One of the most noteworthy aspects of the proposed Saudi Intellectual Property Law is its attempt in governing the protection of AI-generated works. The draft law states that such works would only be protected if the contribution of a natural person is prominent in the work. It explicitly states that works autonomously created by AI and those in which there is no prominent contribution of a natural person are deemed to be public domain.

In my view, this is the most obvious way for applying existing copyright law in regard to AI-generated works. Copyright law protects works made by human authors, and if there is no contribution from a human author, then the work is deemed to be in the public domain. The Saudi proposed law does not actually introduce any new concepts in this regard, and merely confirms the most logical way of interpreting existing law. The proposed law does not provide clarification of what a prominent contribution means.

The draft law also does not address the most controversial copyright law issue with artificial intelligence, which is the fact that training artificial intelligence models is most likely considered a violation of copyright protection over the works of third parties under the law of Saudi and most countries around the world.

Another fascinating aspect of the proposed Saudi intellectual property law is that it attempts to govern the creation and use of intellectual property works in outer space. This appears to be motivated by the fact that Saudi is heavily investing in a national space program, and it would like to make sure that any works created by activities funded by Saudi are considered the property of Saudi. Accordingly, there is an article in the proposed law that states that any intellectual property arising from space missions funded by the Saudi government will be owned by the Saudi government.

Another notable aspect, which might be a bit more, is that the law states in another provision that acts taken in regard to intellectual property works created by space missions funded by the Saudi government are deemed to have taken place in Saudi. I am assuming that this is intended to facilitate the enforcement of Saudi’s claimed rights over works funded by the Saudi government, but it is not clear if this provision is intended to relate to acts taking place in outer space or in regard to acts taking place anywhere in the world regarding Saudi works created in outer space. It might be possible that this is intended to allow Saudi courts to have jurisdiction over disputes relating to such works, but I am not sure.

The proposed law covers many other issues such as a blanket ban on the protection of any matter that violates Islamic Sharia; the recognition of intellectual property as a subject matter of a waqf; the introduction of a “works made for hire” provision to deem the employer or principal as the owner of a work produced by an employee or contractor; the confirmation of the authority of the Saudi government to issue compulsory licences, and much more.

This new draft Saudi Intellectual Property Law is extremely interesting, but I am not sure if it is the right approach for creating a national intellectual property framework. Attempting to govern all intellectual property law by a single legal instrument makes dangerous assumptions about the relationship between the different forms of intellectual property rights, the rationale for their existence, and the rights associated with them. The proposal states that all intellectual property rights have economic and moral rights, which are copyright concepts that do not apply at all to rights such as trade secrets or geographical indicators. Issues such as ownership of intellectual property, artificial intelligence, or works produced in outer space have no implication even in regard to trade mark law, which is a legal framework that is intended to protect consumers and combat unfair competition. Creating a single legal instrument with unified provisions for all forms of intellectual property rights is confusing and may result in the creation of a law that is impossible to implement.

It is extremely interesting that Saudi is thinking about the ownership of works it funds through its outer space program. Countries in our region invest substantial amounts of money in research and development without thinking of the legal mechanisms for ensuring that the benefits of intellectual property works produced through this funding go back to our people. However, making the government the owner of the work is not necessarily the most optimum mechanism for maximising the ability of society to benefit from such government-funded works, as the government might not have a mechanism for licensing its own works and might be restricted by an unjustified culture of confidentiality. An alternative approach would be to require the works to be openly licensed or to deem them falling immediately in the public domain in the same manner as official documents such as laws and court judgments.

To view the full text of the proposed Saudi Intellectual Property Law and its explanatory note in Arabic, you can visit the official Saudi public consultation portal at the following link. Alternatively, you can download them using the links below: