ChatGPT and copyright: what businesses need to know
People at meeting table with laptop open. Woman with blonde hair talking.
ChatGPT is changing how we do business. While it offers a host of opportunities, there are also some risks. One key risk is copyright infringement. Put simply, does AI hold the copyright to the output it produces? Or does this ownership vest with the user? The answer isn't straightforward, particularly considering that ChatGPT is a relatively new tool, which also means that the laws around it’s use are still evolving.
In this article, we’ll discuss copyright laws within the AI realm and delve into how businesses can safeguard themselves.
How are businesses using ChatGPT?
Businesses everywhere are trying to work out how ChatGPT can increase their output or reduce costs. While ChatGPT is a powerful tool, there are some inherent limitations which means its output needs to be reviewed to check that it is correct. That said, there are many ways it can be used, from writing emails to preparing blog posts. Here are the ways it can be used:
Email templates
Brainstorming
Sentiment analysis
Preparing workshops or presentations
Translations
Employee onboarding
Job ads and interview questions
What is copyright?
Copyright is a category of intellectual property that grants an exclusive right to use that intellectual property. This right normally emerges automatically for original creative works from the human mind. At this point, AI creations are excluded!
Navigating copyright can be intricate since it involves evaluating specific criteria to ascertain copyright protection applicability for certain creative works, including their degree of "originality." However, the main insight here is that when you have an idea, and manifest it in an original and distinctive form, it legally becomes yours. Under Australian copyright laws, you're normally automatically granted an inherent an automatic exclusive right to this intellectual property.
Are AI generated works protected by Copyright?
The short answer is no, not automatically. AI can’t own copyright because it isn’t a person. This legal stance was extensively discussed in the Thaler v Commissioner Of Patents [2021] case.
This means that AI-generated content isn't automatically safeguarded under copyright laws. That said, a person using AI to generate works may still be protected by copyright.
Does my AI have permission to use the copyrighted work of others?
It’s generally an infringement of copyright to digitally reproduce works without permission. Before you use other people’s works to train or prompt your AI, you’ll usually need permission from the copyright owner. However, there are some exceptions where you don’t need permission. These include:
fair dealing exceptions for research, study, news reports, review, and parody and satire; and
for temporary copying of works for technical purposes (e.g., making a temporary copy of an audio-visual file when you stream it online from a licensed platform).
As these laws were created before AI, it’s not clear whether they cover use of works as training data in machine learning. There are no express exceptions in Australia for data mining or using works for machine learning.
If you are using a pre-trained model, such as ChatGPT, then arguably you aren’t creating the copies and are not in breach but this hasn’t been tested in front of the courts yet.
How do I reduce the risks around using AI in my business?
As we wait for the laws and regulations around AI to become crystallised, there are some precautions you can take to reduce to risk of claims based around your use of ChatGPT which include:
only uploading documents into ChatGPT or as training data if you have permission from the copyright owner.
letting people know if AI was used when generating your works. This approach is considered ‘best practice’ under Australia’s AI Ethics Principles however these principles aren’t legally binding.
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