ChatGPT and the IP Implications of the Output Created by it

Introduction

Chat Generative Pre-trained Transformer (ChatGPT) is a chatbot developed by OpenAI that utilises machine learning algorithms to generate content basis the patterns it has learnt from its training data/inputs. As unreal as it may sound, ChatGPT can answer questions, translate content, create poetry, write jokes, articles, etc. based on the specific input/request fed by the user of ChatGPT.

Definition of “first owner/author”

This rather begs us to wonder whether the content/output produced by utilising ChatGPT would be copyrightable. If yes, then who could claim copyright? To be in a position to answer this question, we must first revisit the relevant provisions pertaining to the “first owner/author” of copyright in relation to various jurisdictions.

India

Section 17 of the Copyright Act, 1957¹, specifies the following persons who are entitled to claim copyright ownership which is as follows:

17. First owner of copyright.—Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:

Provided that—

(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work, insofar as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;

(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

(c) in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship and in which the author has been given a special commission for its production or, in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship for the purpose of inclusion in a film, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

(d) in the case of any address or speech delivered in public, the person who has delivered such address or speech or if such person has delivered such address or speech on behalf of any other person, such other person shall be the first owner of the copyright therein notwithstanding that the person who delivers such address or speech, or, as the case may be, such other person is employed by any other person who arranges such public delivery or owns the premises in which the address or speech is delivered, if in either case the delivery is not made for any valuable consideration;

(e) in the case of any work, being a portrait or a photograph, the owner of the plate or the film shall be the first owner of the copyright therein;

(f) in the case of a sound recording made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; and

(g) in the case of the Government or any of its departments, a work made or first published by or under the direction or control of the Government or any of its departments shall be first published.

US

Section 201 of the US Copyright Act, 1976² pertains to the “ownership” of copyright, which is reproduced as follows:

201. Ownership of copyright.—

(a) Initial ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.

(b) Works made for hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

(c) Contributions to collective works. — Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

UK

Section 9 of the Copyright, Designs and Patents Act, 1988³ pertains to the “author” of copyright, which is reproduced as follows:

9. Authorship of work.— (1) In this Part “author”, in relation to a work, means the person who creates it.

(2) That person shall be taken to be—

(a) in the case of a sound recording, the producer;

(b) in the case of a film, the producer, and the principal director;

(c) in the case of a broadcast, the person making the broadcast (see Section 6⁴);

(d) in the case of a typographical arrangement, the person who made the arrangement;

(3) In the case of a literary, dramatic, musical, or artistic work, which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

(4) In the case of a work of joint authorship, the authors shall be treated for the purposes of this Part as the co-authors of the work.

Australia

Section 35 of the Copyright Act, 1968⁵ pertains to the “first owner” of copyright, which is reproduced as follows:

35. Ownership of copyright in original works.— (1) The author of a literary, dramatic, musical, or artistic work is the owner of the copyright in the work, subject to the following provisions of this Part.

(2) Where a literary, dramatic or musical work, or an engraving, or a photograph or a cinematograph film is made by the author in pursuance of a commission or for valuable consideration other than in the course of the author’s employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of this Act by reason of the making of the work.

(3) Where, in the case of an engraving, photograph or cinematograph film, a person has commissioned the taking of the work for valuable consideration, that person is the owner of any copyright subsisting in the work by virtue of this Act by reason of the making of the work.

(4) In the case of a sound recording or film made by a person in pursuance of a commission for valuable consideration, other than a recording or film made in the course of the person’s employment under a contract of service or apprenticeship, the person who commissioned the making of the recording or film is the owner of any copyright subsisting in the recording or film by virtue of this Act by reason of the making of the recording or film.

(5) The proprietor of a newspaper, magazine or similar periodical is the owner of the copyright in any article, or other contribution, which he has caused to be made for the purpose of publication in the newspaper, magazine, or periodical, unless the contrary intention appears.

Impact on IP laws

It is vital to note that under the relevant provision of the term “owner/author” as reproduced above pertaining to India, US, UK, and Australia, the term focuses on the person who created/produced/caused to create the work/output. Therefore, prima facie if an individual who by inputting certain prompts facilitates ChatGPT to produce certain work/output then such individual shall be the first owner/author of the work/output so caused to be produced by ChatGPT. However, for an individual to claim ownership over copyright the “work” must be original and that is what the law stipulates in India, US, UK, and Australia. It is relevant to take note that ChatGPT creates content based on pre-existing data. It is highly probable that the output created by ChatGPT although facilitated through an individual could consist if not entirely but partially could already belong to someone else and using the work/output of ChatGPT could cause copyright infringement.

Similarly, if the description of images or logos produced by ChatGPT is similar to that of an existing trade mark, whether registered or not then that raises questions about the possibility for trade mark infringement or passing off, respectively. Moreover, it is also puzzling that if an inventor were to use ChatGPT to aid him to create an invention. Here again, the question as regards “originality” is raised since the output produced by ChatGPT is based on pre-existing data, therefore the invention may not be considered as “novel” and the inventor may not be eligible to get a patent over the purported invention.

Views of ChatGPT

It is equally important that we must take into account what is ChatGPT’s view on this. When I asked ChatGPT if I could claim copyright over the output generated by it in India, US, UK, and Australia, ChatGPT responded by stating as follows:

“In general, the legal status of claiming copyright over the output generated by me will depend on the laws and regulations in each country or jurisdiction. However, as an AI language model, I do not have the ability to claim copyright over any output that I generate.

In terms of copyright ownership, the general principle is that the person who creates a work is considered the first owner of the copyright. So, if you input a prompt and generate output through me, you may be considered the author and therefore the first owner of the copyright in that output.

However, there may be exceptions to this general principle, and copyright ownership can be influenced by a variety of factors such as employment status, contractual agreements, and other legal considerations. Additionally, the copyright laws in India, US, UK, and Australia can differ, so it is important to consult with a legal expert in your specific jurisdiction to determine your rights and obligations.

It is also important to note that copyright protection may not extend to output generated by me if it is considered to be a purely mechanical or computer-generated work, with no significant human creativity or input. In such cases, the output may not be eligible for copyright protection, and would instead be considered a part of the public domain.

In summary, while you may be considered the owner of the copyright in the output generated by me, it is important to consult with a legal expert in your specific jurisdiction to understand the relevant copyright laws and regulations, and to ensure that you are taking the appropriate steps to protect your rights and obligations as the author or owner of the output.”

Food for thought

It is certain that even as of the latest amendment of copyright laws pertaining to India, US, UK and Australia, the legislators certainly did not consider about ownership of copyright if output/work is created with the aid of an artificial intelligence and machine learning model such as ChatGPT. While presently there is no law that specifically allows or prohibits artificial intelligence and machine learning model such as ChatGPT from claiming rights over the intellectual property, it is ambiguous whether OpenAI or the creators of ChatGPT can claim at least co-ownership over the output/work because they have indeed created the source code on which ChatGPT functions. Furthermore, another interesting question that arises is what if upon inputting the same question/prompt by different individuals, ChatGPT produces the identical response/output.

Conclusion

The use of ChatGPT generated content has the potential to greatly benefit various industries, but it is important to consider the impact it may have on intellectual property rights and the potential risks associated with its use. There are still questions about who owns or can claim ownership over the intellectual property over artificial intelligence generated material. It is essential for brands to stay informed and prepared for the potential use of ChatGPT generated content by consulting with legal experts to ensure compliance with applicable laws and regulations and to address any concerns related to intellectual property rights. Brands should also be aware of the potential risks associated with the use of AI-generated content and take steps to mitigate these risks. Proactively addressing these issues will better position brands to take advantage of the benefits of ChatGPT generated content while minimising potential risks. It is advisable to consider paraphrasing or modifying the work/output generated by ChatGPT to reduce if not obliterate the risk of infringing copyright.