By: Zachary Finn
Unless you have lived under a rock, since last December, our world has been popularized by the infamous ChatGPT. Generative Pre-trained Transformer (“ChatGPT”) is an AI powered chatbot which uses adaptive human-like responses to answer questions, converse, write stories, and engage with input transmitted by its user. Chatbots are becoming increasingly popular in many industries and can be found on the web, social media platforms, messaging apps, and other digital services. The world of artificial intelligence sits on the precipice of innovation and exponential technological discovery. Because of this, the law has lagged to catch up and interpret critical issues that have emerged from chatbots like ChatGPT. One issue that has risen within the intersection of AI-Chatbot technology and law is that of copyright and intellectual property over a chatbot’s generated work. The only thing that may be predictable about the copyright of an AI’s work is that (sadly) ChatGPT likely does not own its labor.
To first understand how ChatGPT figures into the realm of copyright and intellectual property, it is important to understand the foundations and algorithms that give chatbot machines’ life. A chatbot is an artificial intelligence program designed to simulate conversation with human users. OpenAI developed ChatGPT to converse with users, typically through text or voice-based interactions. Chatbots are used in a variety of ways, such as: user services, conversation, information gathering, and language learning. ChatGPT is programmed to understand user contributions and respond with appropriate and relevant information. These inputs are sent by human users, and a chatbot’s response is often based on machine learning algorithms or on a predefined script. Machine learning algorithms are methods by which an AI system functions, generally predicting output values from given input data. In lay terms, a system will learn from previous human inputs to generate a more accurate response.
The ChatGPT process goes as followed:
1. A human individual inputs data, such as a question or statement: “What were George Washington’s teeth made of?”
2. The Chatbot reads the data and uses machine learning, algorithms, and its powerful processor to generate a response.
3. ChatGPT’s response is relayed back to the user in a discussion-like manner: “Contrary to popular belief, Washington’s dentures were not made of wood, but rather a combination of materials that were common for dentures at the time, including human and animal teeth, ivory, and metal springs. Some of Washington’s dentures also reportedly included teeth from his own slaves” (This response was generated by my personal inquiry with ChatGPT).
So, who ultimately owns content produced by ChatGPT and other AI platforms? Is it the human user? OpenAI or the system developers? Or, does artificial intelligence have its own property rights?
Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. This is codified in The Copyright Act of 1976, which provides the framework for copyright law. Speaking on the element of authorship, anyone who creates an original fixed work, like taking a photograph, writing a blog, or even creating software, becomes the author and owner of that work. Corporations and other people besides a work’s creator can also be owners, through co-ownership or when a work is made for hire (which authorizes works created by an employee within the scope of employment to be owned by the employer). Ownership can also be contracted.
In a recent Ninth Circuit Court decision, the appellate court held that for a work to be protected by copyright, it must be the product of creative authorship by a human author. In the case of Naruto v Slater, where a monkey ran off with an individual’s camera and took a plethora of selfies, it was concluded that the monkey did not have protections over the selfies because copyright does not extend to animals or nonhumans. §313.2 of the Copyright Act states that the U.S. Copyright Office will not register works produced by nature, animals, the divine, the supernatural, etc. In the case of AI, a court would likely apply this rule and similar as well as any precedent cases that have dealt with similar fact patterns with computer generated outputs.
Absent human authorship, a work is not entitled to copyright protection. Therefore, AI-created work, like the labor manufactured by ChatGPT will plausibly be considered works of public domain upon creation. If not this, it is likely they will be seen as a derivative work of the information in which the AI based its creation. A derivative work is “a work based on or derived from one or more already existing works”. This fashions a new issue as to whether the materials used by an AI are derived from algorithms created by companies like OpenAI, or by users who influence a bot’s generated response, like when someone investigates George Washington’s teeth. Luckily for OpenAI, the company acknowledges via its terms and agreements that it has ownership over content produced by the ChatGPT.
However, without a contract to waive authorship rights, the law has yet to address intellectual property rights of works produced by chatbots. One wonders when an issue like this will present itself to a court for systemization into law, and if when that time comes, will AI chatbots have the conversational skills and intellect to argue for ownership of their words?