The use of artificial intelligence, or AI, is rapidly growing in every area of our lives. AI can be used to help write articles, poems, books, music and design art, including enhancing artwork that is already available. However, when using AI for any of these purposes you must be careful and cognisant of the possible legal obligations, including infringing upon copywritten material.
First, it is important to understand what AI is. This can be a difficult task because defining AI, in an exact manner, is a bit elusive at the moment. In general, AI systems can produce works that can also be produced by a human being. Some AI systems can create based upon a single line of inquiry. Others can encompass a larger number of related inquiries and produce a product that reflects the request.
Next, it is necessary to understand how AI produces the work a person is requesting. For AI to produce a work, it must have a frame of reference and databases of material to draw from to put towards the final product. This is called machine learning. Machine learning requires large amounts of data. Therefore, one of the first questions an AI producer must be aware of is if the data they are using to train their system is protected material. Before using any data source to train their AI systems, companies should be aware of whether or not they are infringing on a copy written work. If they are, it is possible for the human author to have a copywrite claim against the AI company.
Once an AI product is generated by the user, the question becomes who owns the final product. In general, human authorship is required for a work to be copy written. Therefore, the current lack of clarity in answering this question, is derived from the level of human involvement the law will require for copywrite rights to exist. At the moment there are a few possible options;
- If the query to the AI system is enough to be considered sufficient human involvement, then that would create a wide birth for those how want to claim ownership of AI generated work. This is not a likely outcome
- If the query is not enough, then the second option is that the level of human “independent intellectual effort” will be pivotal in determining if the work was sufficiently completed by a human being to allow the creator the legal right to copywrite the final product
- Another option would be to determine that all AI generated work belongs to the public, thereby creating no copywrite rights for anyone who generates work from an AI platform
Other competing concerns are described as the “derivative work” boundaries and the “fair use doctrine.” These are concepts that are in opposition to one another.
Derivative Work: The definition of derivative work is producing a work that is taken from the work of another. If it is determined that the work a person generated from an AI platform is too similar to the work of another copywritten piece, then copywrite penalties and fines might be levied against the secondary creator.
Fair Use Doctrine: If a work that is copywrite protected is used for a purpose such as “criticism (including satire), comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” then it is possible the court will allow the AI generated work to be used sans violation of the copywrite protections afforded the original author of the piece. Hence, if the work is used in a nonprofit or educational manner, or only a small portion of the whole of the work is used and/or there is a minimal effect on the market value of the work, then it is possible AI can use the work without infringing on copywrite protections held by the original author of the work.
At the moment the use of AI is relatively unregulated. However, it is still considered important to be transparent as to where your work came from. While you might not be legally required to reveal the use of AI to generate a writing or a work of graphic art, it is always wiser to air on the side of honesty.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.