Written by Lucy Diggle, Alyce Evans and Principal, Jennifer Tutty
‘ChatGPT’ continues to generate countless headlines each day, due to its exponential growth and potential applications. Here at Studio Legal, we’ve been considering the legal ramifications of artificial intelligence (AI) generative software.
In this article, we explore whether content generated by ChatGPT is protected by copyright. Additionally, we respond to key questions received from clients, family and friends, regarding ChatGPT and copyright.
A Brief Crash Course on Copyright
Copyright is a form of intellectual property (IP).
Contrary to popular belief, copyright does not protect ideas. Instead, it protects the original expression of those ideas in a material form. In other words, if you have an idea for a song, book, painting, computer game, film, (etc.) that ‘idea’ is not protected by copyright.
However, if you write your idea down (or paint it, sculpt it, code it, audio record it…) then you have put that idea into material form, and this may be protected by copyright.
Whilst copyright can protect a range of works (e.g. literary and musical works) and non-works (e.g. films and sound recordings), output produced by ChatGPT contains words. Therefore, in this article, we’ll be focusing on literary works.
Australian Law: The ‘Human Authorship Requirement’
In Australia, copyright protection requires the work to have been created by a human author (i.e. not a robot!).
Whilst the Copyright Act 1968 (Cth)(Copyright Act) does not have any express definition of ‘author’ for literary works, Australian courts have strongly emphasised a human authorship principle.
IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14
In this leading case, IceTV Pty Ltd (IceTV) produced an electronic programming guide known as the ‘Ice Guide’, which used information partly obtained through Nine’s weekly television schedules.
Nine claimed IceTV had infringed their copyright by using its TV schedules to create the Ice Guide. The matter went all the way to the High Court, where (although the central question for the High Court related to infringement and originality rather than authorship), the court’s analysis made it clear that in order to be protected by copyright, a work must be the product of some independent human intellectual effort.
Emphasis on ‘human’!
Telstra Corp Ltd v Phone Directories Co Pty Ltd [2010] FCAFC 149
One year later, the human authorship requirement was discussed in the case of Telstra Corp Ltd v Phone Directories Co Pty Ltd [2010] FCAFC 149.
In this case, Telstra claimed that Phone Directories had infringed the copyright in Telstra’s white pages and yellow pages phone books. Telstra was ultimately unsuccessful, as the court held that the telephone directories were not protected by copyright.
This was because the directories were produced primarily by the operation of computer programs, with minimal human input.
International Positions on Authorship
The position in the United States: Where a monkey selfie led to a copyright battle…
It appears that a human author is also required for copyright protection under US law. This position was famously demonstrated in the highly publicised case Naruto v David John Slater (2018). Unfamiliar with the name? You might remember the facts. This was the case about a selfie taken by a monkey (Naruto) on a photographer’s camera.
When the photographer published a book of photographs (including the monkey selfie), animal rights organisation, PETA, brought a copyright infringement claim on behalf of the monkey.
Whilst the dispute eventually settled outside of court, the U.S. Court of Appeals for the Ninth Circuit confirmed that the monkey was unable to sue under the Copyright Act (as animals cannot sue for infringement).
Following the broad coverage of the case, the US Copyright Office was also quick to comment. It declared that it will only register an original work of authorship if the work has been created by a human being.
The position in the United Kingdom: Considering the “necessary arrangements for the creation of the work”?
Interestingly, this authorship position differs in other territories such as the UK, New Zealand, Ireland, Hong Kong and India.
Taking the UK as an example…
UK courts have created a potential exception to the human authorship requirement under their Copyright, Designs and Patents Act 1988 (UK) (UK Act) where AI works are concerned.
The UK Act states that:
“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.”
Theoretically, this suggests that the programmer of the AI OR the user of the AI may be the ‘author’ of the work produced. This depends on who was responsible for the ‘arrangements’ necessary to create the work.
By defining the user or programmer as the author (rather than attributing this to the AI), the resulting work could be protected by copyright.
AI Enters the Chat
Traditional vs. Modern AI
Traditionally, the question of authorship in computer-generated works saw technology as a ‘tool’ for the human author.
For example – consider a traditional software program like Microsoft Word. The technology assists the individual to translate their idea into a material form. Letters typed on a keyboard are reproduced by the computer on a screen. The person typing those letters is the author of the writing produced.
Similarly, an artist’s paintbrush is the ‘tool’ they use to translate their ideas into a material form. The artist is the ‘author’ of the painting (even though they used a paintbrush to assist them).
Modern AI like ChatGPT, however, uses machine learning techniques. This enable machines to make decisions on their own without being explicitly programmed.
Whilst generative AI systems like ChatGPT rely on some human reinforcement, the AI compiles and generates the output autonomously and thus makes significant independent decisions.
ChatGPT weighs in
Interestingly, ChatGPT’s Terms of Use (Terms) state:
“As between the parties and to the extent permitted by applicable law, you own all Input, and subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title and interest in and to Output.”
These Terms are likely to confuse a number of users. In claiming to ‘assign’ rights in the ChatGPT output to the user, the Terms imply there are IP rights to assign.
However, as discussed, as long as the human authorship principle remains under Australian and US law, the ChatGPT output isn’t protected by copyright in the first place.
Therefore, for Australian users, there’s no copyright for ChatGPT to assign.
Key Questions
As outlined by our Principal, Jennifer Tutty in our recent ‘Dear Jen’ Instagram post, questions concerning ChatGPT and copyright aren’t just something for lawyers to ponder. There are a number of real-world implications, which anyone using ChatGPT needs to be aware of.
Recently, we’ve received several questions from clients, friends and family, on this topic. Therefore, we’ve decided to answer a few of the recurring ones below…
Q: If I use ChatGPT to generate content, is that content protected by copyright?
The position in Australia (and the US) currently requires a work to be created by a human author for that work to be protected by copyright. As ChatGPT isn’t a human, there’s no ‘human author’ for the output it generates. In other words, the work can’t be protected by copyright, because a human didn’t create it.
The result? If you use ChatGPT to generate written content, this isn’t protected by copyright under Australian or US law.
Q: Can I transfer copyright in content I create via ChatGPT to a client?
Using ChatGPT to create written content for your client (or employer) can be sticky business.
It’s likely your client will want you to assign or licence the copyright in that work to them (or may require you contractually to do so).
As discussed above, the output generated by ChatGPT isn’t protected by copyright. Therefore, there’s no copyright for you to transfer. You’ll need to disclose this to your client ASAP before they assume they own the copyright in the work (when in fact, no copyright exists).
Q: What can go wrong when using ChatGPT in my business?
This is a broad question, however, here’s one example of what could go wrong.
Let’s say you own and run a small business. Instead of hiring a copywriter (cf. copyright!), you use ChatGPT to draft copy for your new website.
As the copy was written by ChatGPT (rather than a human), it’s not protected by copyright. Therefore, if a business competitor copies the writing on your website and uses it on their own… you can’t claim copyright infringement against them.
Obviously, this is not a position any new business trying to distinguish themselves wants to find themselves in.
Q: What if I edit or rewrite the output created ChatGPT? Is the edited/new version protected by copyright?
Let’s break down this hypothetical.
ChatGPT creates output for you (ie. written content). You then edit this content and ‘rewrite it in your own words’. Is what you write protected by copyright?
When it comes to copyright law, courts will assess copyright protection (and infringement) on a case-by-case basis.
ATTENTION: It’s not about ‘how much’ of the original work you change!
It’s a common myth that if you only use a certain percentage of another work in your own work, you won’t infringe copyright. This is incorrect under Australian copyright law.
In other words: if you’re using another piece of content as ‘inspiration’ for your own work, there’s no set number of words or percentage of the original work you need to change to create a new, original work, which doesn’t infringe someone else’s copyright.
For more info on this and other common copyright myths, check out our blog: ‘9 Common Mistakes People Make About Copyright‘.
‘Originality’ is not something that is measured quantitatively in numbers or percentages.
Going back to ChatGPT… If this AI software creates content, this output is not protected by copyright. There’s no defined amount of that output that needs to be changed in order to create a new, ‘original’ work.
Therefore, we cannot definitively say that ‘rewriting’ the ChatGPT output in your own words will be enough to create a new, original work. As such, there’s no guarantee that what you write will be protected by copyright.
So, what’s the answer?
To provide an answer to this question, we would need to look at the specific ChatGPT output and the content you write (or ‘rewrite’) side by side. From there, we could apply Australian legislation and case law to advise you on whether that particular work (that you have ‘rewritten’) is protected by copyright.
With this in mind, unless you’re planning to have each piece of content reviewed by a copyright lawyer to determine whether it’s protected, the safest option is to not rely on ChatGPT in the first place.
Some Additional Considerations
We’ll be watching closely how (and whether) the rapid rise of ChatGPT affects copyright law in Australia and globally. In the meantime, here are a few additional things to consider when using AI generated content…
Be cautious of infringing the IP rights of other creators
ChatGPT may at times (whether instructed or not) pull data from other sources, which may be protected by copyright.
For example, let’s imagine you use ChatGPT to write a snappy piece of copy to post on your business’ website. The output created contains a line from one of your favourite poems.
Whilst there may be no copyright in the ChatGPT output as a whole, the poem incorporated was created by a human. If you use the output, you may be infringing the poet’s copyright in the poem.
If this occurs, hiding behind Chat GPT as a defence to your infringement won’t work.
The ChatGPT Terms of Use clearly state: “You are responsible for Content, including for ensuring that it does not violate any applicable law or these Terms.”
Tip for businesses: Update your employee and contractor agreements
We also recommend that businesses consider speaking to their lawyers about updating employee and contractor agreements, in line with the rise of AI generated content.
One way to do this could be adding terms to employee or contractor agreements:
1. Restricting them from using AI to generate content for their work; and
2. Providing remedies to the business if this term is breached.
This will enable businesses to feel confident that the work being created for them is protected by copyright. It can also provide a way to take action (and possibly recover loss and damages) against employees/contractors who breach this term.
Written by Lucy Diggle, Alyce Evans and Principal, Jennifer Tutty.
Published 14 February 2023
Further Information
If you’re a creative looking for advice on ChatGPT, AI or copyright, or a business owner wanting to update your contracts in line with these developments, please contact us through our online form or via email at hello@studiolegal.com.au.
For more information about copyright, check out our copyright blogs here.
To learn about Australian patent law and AI, check out our article: ‘IP News: AI Machines Can’t Be Inventors Under The Patents Act 1990 (Cth) … Yet!’
Photo by Andrea De Santis on Unsplash.
DISCLAIMER
The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.