The artificial intelligence (“AI”) chatbot ChatGPT produces content that can appear to have been created by a human. From creating audio and video outputs to generating code, imagery, text, and simulations, there are many proposed uses for the technology across industries, including in the retail space, and at least some companies have been quick to adopt and/or invest in this emerging tech phenomenon. With its impressive capabilities (and those of similar AI generators) in mind, ChatGPT is raising important questions about ownership of the content that it creates. Legislation in the United Kingdom, namely, the Copyright, Designs and Patents Act 1988, defines computer-generated works as those “generated by computer in circumstances such that there is no human author of the work,” and the law suggests that content generated by AI can be protected by copyright, the original data from which AI chatbots generate their outputs can be difficult to trace – and they might include copyrighted works.
Against this background, a couple key questions come to mind: The first is whether ChatGPT should be allowed to use original content generated by third parties to generate responses. The second is whether only humans can be credited as the authors of AI-generated content, or whether the AI itself can be regarded as an author – particularly when that output is creative.
In terms of question one, the technology underpinning ChatGPT is known as a Large Language Model (“LLM”), which is trained – and improved – by exposing the model to large datasets, including vast numbers of websites and books. At the moment, the UK allows AI developers to pursue text and data mining, but only for non-commercial purposes.
ChatGPT-creator OpenAI’s terms of use assign to the users “all its right, title, and interest in the output,” but the company says it is up to users to ensure the way they use that content does not violate any laws. The terms and conditions are also subject to change, and do not carry the stability and force of a legal right, such as copyright. The only solution will be to clarify laws and policies. Otherwise, every organization will have to take legal action individually, aiming to show that they own the works used by an AI. Furthermore, if governments do not take action, then we are approaching a situation where all copyrighted materials will be used by others without the original author’s consent.
Question of AI & Copyright Ownership
Now to question two: Who can claim copyright to AI-generated content? In the absence of a claim by the owner(s) of original content that chatbots use to generate a response, it is possible that copyright in the output from an AI chatbot could lie with individual users or the companies that developed the AI. Copyright law is, after all, based around a general principle that only content created by human beings can be protected. The algorithms underpinning ChatGPT were developed at OpenAI, so the company would appear to hold copyright protection over those. (This is somewhat akin to the fact that a creative work made by an employee in the course of their employment, their employer is traditionally the owner of any copyright in the work – subject to any agreement to the contrary.) However, this might not extend to chatbot responses.
There is another option regarding the ownership of AI-generated content: The AI, itself. UK law would currently prohibit an AI from owning copyright (or even recognizing that an AI created it), as such chatbots are not humans and therefore, cannot be treated as authors or owners under the Copyright, Designs and Patents Act. It is also unlikely that this position is going to change anytime soon, given the UK government’s response to the AI consultation.
For now, policymakers are sticking to human creativity as the prism through which copyright is granted. However, as AI develops and can do more, policymakers might consider granting legal capacity to AIs themselves. This would represent a fundamental shift in how copyright law operates and a reimagining of who (or what) can be classed as an author and owner of copyright. Such a change would have implications for business as firms integrate AI into their products and services. Microsoft recently announced that it will be embedding its product Copilot – based on ChatGPT – into the company’s software, such as Word, PowerPoint, and Excel to help users with written communication and summaries large volumes of data.
More developments like this are sure to follow, and early adopter firms have a chance to capitalize on the current situation by using AI to increase the efficiency of their operations. Firms can often gain an advantage when they are first to introduce a product or service to a market – a situation called the “first-mover advantage.”
Future Shifts
The UK government recently carried out a consultation on AI and copyright in connection with which two conflicting views emerged. The tech sector believes the copyright to AI-generated content should belong to users, whereas the creative sector wants this content to be excluded from ownership completely. The UK government has not acted on the findings, and instead, has recommended further consultation between the interested parties.
If copyright law shifts away from its focus on human agency in the future, one could imagine a scenario where an AI is classed as the author and the developers of that AI as the owners of the output. This could create a situation where a handful of powerful AI companies wield colossal influence. The companies behind such AI tech could end up owning hundreds of thousands of copyrighted materials – songs, published materials, visuals, and other digital assets, which could arguably lead to a dystopian situation where the majority of newly-created works are generated by AI and owned by businesses.
It seems logical that such knowledge should remain in the public domain, and perhaps the solution is that each person or company declares their contribution when they use AI – or that their contribution is automatically calculated by software. Accordingly, they get credit or financial benefit based on the amount of work they contributed. As for AI content that is, itself, based on copyrighted materials, that remains a potentially problematic issue. On one hand, the inability to rely on copyrighted materials could undermine the ability of the AI system to answer prompts from end users, but on the other, if the content is to be based on protected works (both at the training and output stages), we would need to accept a new era of open innovation where the intellectual property rights hold less weight.
Sercan Ozcan is a Reader of Innovation and Technology Management at the University of Portsmouth
Joe Sekhon is a Senior Lecturer in Intellectual Property Law at the University of Portsmouth.
Oleksandra Ozcan is a Lecturer in International Business at the University of Portsmouth.
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