Please note, this is a script from episode five of our video series, the digital download: Generative AI, which you can access here.
In this episode, we're going to be looking at the IP issues relevant to the use of generative AI.
IP rights in AI-generated content
The question of ownership of AI generated work is not yet fully settled. Creators may be able to establish copyright ownership in AI generated content if it meets the requirements at law. For copyright to apply in New Zealand, there has to be a work, it has to be original, and there must be an author. For the work to be original, the user will need to demonstrate that they've applied sufficient time, skill and effort in creating it. Inputting a simple prompt is unlikely to be enough.
In many countries around the world, the author of a work is required to be a human. However, under New Zealand law, the author of a work can be a person that's arranged a computer-generated work. The more time, skill, and effort that the user inputs into creating the prompts and post-generation editing, the higher the likelihood that they'll be considered to have arranged the work and therefore be the author.
Terms of Use
When considering IP ownership of AI generated content, the first port of call should be the specific tool's terms of use. For example, Open AI's terms of use for ChatGPT and DALL-E provide that users own all output generated by these tools. This means that organisations may use such output for business and other purposes, as long as they comply with Open AI's terms.
Organisations will also generally have all the rights they need to use output for internal business purposes, like producing strategy documents or preparing slides for a presentation. However, the position may be less clear for those wanting to exploit content commercially, or to stop others from using it. For example, if a business wants to use AI to help develop proprietary code, or wants to use images developed by AI on its website. This is because AI tools such as ChatGPT generate content based off the data they've been trained on, which may include works owned by others.
The current ongoing litigation against Stability AI, creators of the AI art generator, Stable Diffusion, is an example of where concerns can be raised in this space. Both Getty Images and a group of artists have separately lodged claims alleging that Stability AI is infringing their copyright by using works owned by them to help train and operate its AI tool. It's also important to bear in mind that AI tools may produce the same or similar content as yours for other people, if the prompts given are similar. In fact, the terms of use the ChatGPT and DALL-E expressly provide that output may not be unique across all users. In these circumstances you may not be able to stop others from using that output and are unlikely to establish IP rights in it.
Managing the IP risks
If an organisation wants to use AI generated output for commercial purposes, we recommend they seek advice as to whether they own the copyright in the output. The answer will depend on the terms of use of the particular tool, the nature of the content, and how it was generated. If you have employees creating works on your behalf, using tools like ChatGPT, they may be considered to be the party arranging the work for New Zealand copyright law purposes and not you.
Similarly, if you're jointly creating works using these sorts of tools, you could be considered to be joint owners of the IP and the outputs. In both cases, it's really important to agree a contract upfront which clearly sets out each party's rights to own, use, and commercialise the IP in the outputs.
For mission critical or high-profile works, the safer approach might be to use more traditional means in producing content until we get more clarity about the copyright ownership position.
That brings us to the end of our Generative AI Series. We hope you've enjoyed it and picked up a few tips along the way. Thanks for joining us.