The Position of Second Trump Admin on AI and Intellectual Property Laws: The April 2025 Memorandums

The Trump Administration recently released two significant memorandums—M-25-22 ("Driving Efficient Acquisition of Artificial Intelligence in Government") and M-25-21 ("Accelerating Federal Use of AI through Innovation, Governance, and Public Trust")—providing guidelines on federal use and procurement of artificial intelligence (AI). This policy brief analyzes these memorandums specifically regarding intellectual property (IP) protections in AI development, contrasting them with recent advocacy by certain tech companies for weakened copyright protections. From an Indo-Pacific perspective, these memorandums signal a continued U.S. commitment to IP protection while simultaneously promoting AI innovation in global technology competition, particularly with China. This position has significant implications for Indo-Pacific nations navigating their own AI governance frameworks and IP protection regimes, especially as they position themselves within the U.S.-China technological rivalry.

The Call to Undo TRIPS and IP Laws using Fair Use Justifications

Several prominent tech leaders and companies have actively lobbied for relaxed IP protections for AI development. OpenAI's March 13, 2025, submission to the White House Office of Science and Technology Policy explicitly called for fundamental changes to U.S. copyright law that would allow AI companies to use copyrighted works without permission or compensation to rightsholders.

OpenAI framed this position as crucial for national security and American competitiveness, claiming:

"Applying the fair use doctrine to AI is not only a matter of American competitiveness — it's a matter of national security... If [China's] developers have unfettered access to data and American companies are left without fair use access, the race for AI is effectively over. America loses, as does the success of democratic AI."

The Trump Administration's Position

The Trump Administration's approach, as articulated in the two recent memorandums, takes a more balanced stance that respects existing IP frameworks while promoting AI innovation. Rather than endorsing OpenAI's call for unrestricted access to copyrighted materials, the memorandums emphasise:

1. The importance of protecting intellectual property rights in AI development and procurement

2. The need for clear delineation of data ownership and IP rights in government contracts

3. Restrictions on unauthorised use of government data for training commercial AI systems

Preserving Leadership While Preventing Regulatory Capture?

Figure 1: Trump 2.0 Administration's AI Gov. approach compared with that of Biden Admin 1.0

While the Trump administration's AI memorandums mark a regulatory pivot, they maintain continuity with Biden-era policies by equally prioritising American global AI leadership and national security interests. Both administrations recognize AI's strategic importance, with M-25-21 explicitly stating agencies must adopt a "forward-leaning and pro-innovation approach" while maintaining "strong safeguards for civil rights, civil liberties, and privacy"—language echoing Biden's objectives while avoiding duplication of efforts across agencies.

Where Trump's approach distinctly diverges is in addressing the potential for regulatory capture inherent in Biden's framework. While Biden's comprehensive regulatory structure created complex compliance requirements that well-resourced tech giants could navigate—potentially entrenching their market dominance—Trump's memorandums streamline these requirements while maintaining critical intellectual property protections. M-25-22 specifically addresses this by requiring agencies to "have appropriate processes for addressing use of government data and include appropriate contractual terms that clearly delineate the respective ownership and IP rights", preventing large AI companies from exploiting public resources without accountability.

This balanced approach illustrates how Trump's administration avoids regulatory capture while preserving common national objectives. Rather than allowing major tech companies to use government data to improve their commercial offerings—as OpenAI and others publicly advocated for—Trump's memorandums explicitly prohibit "the use of non-public inputted agency data and outputted results to further train publicly or commercially available AI algorithms...absent explicit agency consent". This stance protects both government interests and prevents large corporations from monopolising government-sourced data benefits, creating a more level playing field that maintains American leadership without favoring established tech giants.

Analysis of the Memorandums' IP Provisions

M-25-22: Protecting IP in Government AI Procurement

M-25-22 specifically addresses IP rights in section 3(e), emphasizing that agencies must "have appropriate processes for addressing use of government data and include appropriate contractual terms that clearly delineate the respective ownership and IP rights of the government and the contractor". The memorandum notes that "careful consideration of respective IP licensing rights is even more important when an agency procures an AI system or service".

Key IP protection provisions include:

• Agencies must update acquisition procedures within 270 days to include appropriate contract terms for IP rights, as outlined in Section 3(b)(iii).

• Section 3(e) mandates processes to delineate ownership and IP rights, especially when agency data is used to train, fine-tune, or develop AI, to prevent vendor lock-in.

• Contracts must prohibit vendors from using nonpublic agency data to further train publicly or commercially available AI algorithms without explicit consent, consistent with applicable law.

• Solicitation and contract terms must address IP rights and data usage, ensuring transparency and accessibility (Sections 4(c)(iii) and 4(d)(iii)).

• At contract closeout, agencies must ensure ongoing rights and access to data or derived products, maintaining usability and format (Section 4(f)(i)).

These provisions reflect a strong emphasis on protecting IP rights in government AI acquisitions, ensuring that proprietary technologies and government data are safeguarded.

M-25-21: Balancing Innovation and IP Protection

This memorandum focuses on promoting responsible AI adoption, with specific mentions of IP in the context of sharing AI code and models:

• Section 2(b)(i) requires agencies to share custom-developed AI code across the federal government, except when restricted by law or regulation, including patent or IP law, Export Asset Regulations, International Traffic in Arms Regulations, or classified information laws.

• Agencies are encouraged to release AI code as open source where practicable, but this is subject to IP law restrictions, balancing transparency with proprietary rights.

The memorandum also directs agencies to:

• "Take steps to ensure that their contracts retain sufficient rights to Federal Government data and retain any improvements to that data"

• Implement "contractual terms that prevent vendor lock-in and also protect Federal information used by vendors in the development and operation of AI products and services"

• Ensure contracts "protect such data from unauthorised disclosure or use, and from being used to train or improve the functionality of the vendor's commercial offerings without express permission from the agency"

Assessment and Recommendations

Key Findings

1. Rejection of Tech Industry's IP Position: The Trump Administration memorandums implicitly reject OpenAI and other tech leaders' calls for weakened IP protections for AI training, instead emphasizing the importance of clear IP rights delineation and protection.

2. Balanced Approach to Competition with China: While acknowledging the competitive challenge from China, the memorandums propose addressing it through innovation within existing IP frameworks rather than by dismantling those frameworks.

3. Emphasis on Consent and Control: The memorandums consistently prioritize consent and control over data usage, including requiring explicit permission for using government data to train commercial AI systems.

Recommendations for Indo-Pacific Stakeholders

1. Develop Regionally Appropriate IP Frameworks: Indo-Pacific nations should consider developing AI governance frameworks that balance innovation with appropriate IP protections, using the U.S. memorandums as potential reference points.

2. Strengthen Regional Cooperation on IP Protection: Given the transnational nature of both AI development and IP challenges, regional cooperation mechanisms should be strengthened to develop consistent approaches to IP protection in AI.

3. Engage with Major Technology Companies: Indo-Pacific governments should proactively engage with technology companies to develop workable solutions that respect creator rights while enabling responsible AI innovation.

4. Explore Consent-Based Models: Following the U.S. memorandums' emphasis on consent, Indo-Pacific nations could explore frameworks that facilitate IP licensing for AI training while ensuring appropriate compensation and control for creators.

Conclusion

The Trump Administration's recent AI memorandums signal a rejection of calls by OpenAI and other tech leaders to weaken IP protections for AI development. Instead, they chart a course that respects existing IP frameworks while promoting AI innovation as part of the strategic competition with China. For Indo-Pacific nations navigating their own approaches to AI governance, these memorandums offer valuable insights into balancing innovation, competition, and intellectual property rights. As the region continues to develop its technology sectors and position itself within the global AI landscape, these policy directions will likely influence regional approaches to the intersection of intellectual property and artificial intelligence.