By Mike Papakonstantinou
Transformative technologies can disrupt society and challenge existing norms, including how to reconcile legal rights in a new era of innovation. Just as previous digital technology advancements presented Intellectual Property (IP) challenges during the Web 1.0 and Web 2.0 revolutions, ChatGPT reintroduces the issue of how society must resolve existing IP rights, including copyright, patent, and trademark, in the present disruptive technological age.
Copyright
Overview
ChatGPT implicates various IP copyright issues, including in the areas of infringement and ownership. As noted in previous articles, OpenAI used voluminous datasets to develop its Large Language Model. Some sources include Wikipedia, various digitized books, and sources across the web. However, critics allege that the input data used to train ChatGPT-like systems may constitute copyright infringement at a very large scale because it was used without the permission of the copyright holders. In addition, even though Wikipedia already provides licensing options to utilize its copyrighted text, the licenses typically require some form of attribution or linking. As of this article’s publication, it appears that ChatGPT does not cite Wikipedia or other sources regularly or accurately.
In the United States, copyright laws grant the owner of a copyright the exclusive right to reproduce or distribute their work, to prepare a derivative work, and other associated rights. However, without large amounts of quality training data, these AI systems simply perform poorly or are ineffective.
Under the fair use doctrine, any usage of copyrighted works to develop or enhance ChatGPT may be acceptable, because the fair use doctrine permits non-licensed uses of copyrighted works in some scenarios. A common example of fair use is in an educational context, such as when a professor distributes a relevant article to students for the purposes of teaching or facilitating scholarship. While courts consider various factors to determine fair use, the inquiry ultimately may turn on how “transformative” the use is. Transformative uses add something new, with a different character or purpose, and do not substitute for the original use of the work. Consequently, even though OpenAI commercialized ChatGPT and it no longer remains a research tool, it may still qualify as a fair use. The copying of data for AI training is non-expressive, making the resulting output highly transformative of the original works. The purpose of generative AI (synthesizing new information) is highly different from the original purpose of the original works (expressing an idea of the work’s author).
Analysis
Generative AI systems, which can create novel content, may infringe the rights granted to a copyright owner in various ways. For example, when a company like OpenAI creates a database with training data, it is likely making a copy of the work for inclusion in the database, which may violate the right of reproduction. In addition, if ChatGPT creates a new work based on its training data and a user’s prompt, the resulting new, generated work may be a derivative work. In this case, there may still be copyright infringement because a copyright owner of the original work (from the training data in this example) has the exclusive right to a derivative work, subject to any fair use defense claims.
Furthermore, if ChatGPT outputs a non-de minimis amount of copyrighted text, such as from a textbook or novel, in response to a user’s prompt, then that may constitute distribution. Even if the system quoted text and properly cited the copyrighted work (“attribution”), attribution alone cannot protect an infringer from copyright infringement liability. It should be noted that there seems to be some safeguards built into ChatGPT to prevent the widespread dissemination of copyrighted materials. For example, at least one outlet reported that ChatGPT rejected direct prompts to output copyrighted works.
Moreover, works generated by ChatGPT may present novel legal questions of authorship and ownership. To receive copyright protection (and thus create an ownership right in the copyright), the work must meet the authorship requirement. Based on current U.S. Copyright Office policy and case law, the Office likely will reject an application for copyright if a machine or algorithm is listed as the author. However, the question of what copyright protection exists for a work created by AI with human involvement is a different legal issue. This inquiry may turn on the involvement of the human in the authorship of the work. Margaret Esquenet, a partner at IP boutique law firm Finnegan, opined that AI-generated works might either constitute a work in the public domain or a derivative work of materials in the training data.
In addition, the U.S. Copyright Office has specified its intentions to focus on legal uncertainties involving technology and copyright in 2023 in light of rapid technological developments. Recently, the Office published a notice indicating that AI-assisted works are eligible for copyright protection if there is sufficient human authorship. One example provided by the Office is when a human arranges or selects AI-generated content in a sufficient manner that the overall work meets the authorship requirement. In February 2023, the Office also determined that individual AI-generated illustrations and images utilized by a human author in a novel did not receive copyright protection, though the text (which was entirely human-written) and the overall work did receive copyright. Although the Office intended to clarify these murky legal questions with its recent actions, there is still confusion regarding the boundaries of copyright eligibility for AI-assisted works. Attorneys predict that courts will still need to make determinations in individual cases and provide more clarity on the Office’s guidance.
Even though OpenAI’s terms of service indicate that the requestor/end-user ultimately receives “right, title and interest” to the resultant work, it still may not meet the standards for authorship to receive copyright protection. ChatGPT end-users should understand that the system’s outputs may not result in works that are eligible currently for copyright protection under existing laws and policies. This may change as the Office and courts provide more clarity within the generative AI domain. More guidance is necessary to protect human-made creations and to inform how to protect AI-assisted creations as well.
Patent
Overview
ChatGPT implicates issues in patent law as well. Given the huge training data set, algorithmic sophistication, and vast computing resources, it is possible for ChatGPT to create inventions. However, in 2022, the Federal Circuit held that AI could not be the inventor of a patent, as an inventor must be a natural person. This ruling notably contrasts with South Africa’s patent office decision, which granted a patent to the AI system for the same invention.
Analysis
The patent at issue in both the American litigation and the South African patent application listed AI as the sole inventor, but AI-augmented inventions generated by ChatGPT present different legal issues. For example, it is unclear how central natural persons were to the underlying invention when humans use generative AI systems. If ChatGPT does most of the inventive work, then the person who prompted the inventive output “may not be able to take the oath required by the patent office that they are the rightful inventors,” as noted here. If natural persons did not contribute to the invention, then ChatGPT likely alone created the resultant invention, which, under last year’s Federal Circuit decision, bars patentability. The United States Patent and Trademark Office (USPTO) has solicited input from stakeholders on the issue of AI and inventorship. Although the USPTO cannot overrule the Federal Circuit’s holding, it can suggest any potential changes to federal copyright and IP laws. Mark Lemley, a Stanford Law professor and Lex Luminia’s counsel, opined that Congress must amend the statute because “AI is engaging in significant inventive activity…the PTO and the courts have to pretend that activity was done by a human, or conclude that the invention isn’t patentable at all because it was done by an AI.”
In addition, one requirement for patentability is non-obviousness based on a “person having ordinary skill in the art” (PHOSITA), as noted here. A person using ChatGPT to invent increases likely the knowledge and skill level of a PHOSITA due to the system’s vast training data across numerous technical fields and computing resources, essentially merging various “arts” into one pool of data. Increases in what knowledge and skill a PHOSITA has raised the threshold for what is non-obvious, potentially inflating the barrier to patentability. Patent law, consequently, must clarify what non-obviousness entails in the context of AI-augmented inventions. Without such clarity, individuals and companies will operate in uncertainty as they pursue patent protection for AI-assisted creations.
Trademark
Overview
Unlike copyright and patent law, it is “legally irrelevant” who or what creates a trademark. Consequently, tools like ChatGPT can help individuals and companies in generating marks eligible for federal trademark protection. Also, practitioners already utilize AI tools to augment their trademark practices, such as using automated systems and AI-assisted methods for client counseling. Some AI tools, such as Corsearch, check the USPTO trademark registry to spot existing trademarks that can pose a bar to registration for a new product name or brand. Such tools allow for quick processing to facilitate review by a practitioner, who ultimately provides legal counsel to clients. Corsearch uses various factors, such as the risk of similarity between desired trademarks and registered trademarks. Other existing AI tools help trademark owners automatically comb the web to flag potentially infringing products or counterfeit goods to enforce trademark rights.
Analysis
ChatGPT can help attorneys by generating ideas for trademarks. For example, Ashley G. Kessler, a trademark attorney at Cozen O’Connor, recently described using ChatGPT to identify brand names for a client. Although Generative AI is helpful, the technology is not a complete replacement for attorneys in this context. For example, of the ten names generated by ChatGPT, two conflicted with existing registrations at the USPTO.
Written for the Fall 2023 AI Newsletter
