The Copyright Implications of Using ChatGPT and Other Generative AI Tools
Using generative AI tools like ChatGPT can raise questions about who owns the copyright to the output and how copyright law applies to it. OpenAI, the company behind ChatGPT, assigns the right, title, and interest in output to a user. However, satisfying the "subsistence criteria" is necessary for someone to own the copyright in ChatGPT output.
Copyright Law in Australia
Under Australian law, the output may be classified as a literary work for copyright purposes. But the subsistence criteria of authorship and originality must be satisfied for someone to own the copyright in ChatGPT output as a literary work. However, the analysis becomes challenging since the underlying processes of creation would be examined in detail. In most cases, the output is produced by AI, not a human. Therefore, copyright would not apply to ChatGPT output as a literary work produced in Australia.
Copyright Law in the UK
Under UK law, a person who makes the arrangements for a computer-generated literary work can be considered an author for copyright purposes. This means that AI could be considered an author if it achieves its version of sentience. In such a scenario, a court would assess joint authorship between a person and AI, and each author's contribution would be examined in detail.
Infringement by LLMs
Another issue is whether LLMs infringe others' copyright through accessing data in training. If a substantial portion of copyright-protected material is reproduced, infringement may have occurred. However, even if the output reproduces a portion of copyright-protected material, this might fall under a copyright exception called fair dealing, which permits particular purposes, such as research and study.
Conclusion
As generative AI tools continue to advance, copyright law will likely grapple with these issues in the coming years. Amending the law to allow an AI user to be considered an author for copyright purposes or implementing a text and data mining exception similar to that in the EU are some of the options that could be considered.
