At the end of 2022, a new artificial intelligence chatbot was launched and quickly went viral: ChatGPT. The chatbot created by OpenAI was originally supposed to provide support for online customer service, but it exceeded all the expectations.
If you ask directly to ChatGPT, it will answer that its “main function is to generate human-like text in response to various inputs”. It also explains that it has “been trained on a massive amount of text data”, which allows it to generate, not only correct responses, but also contextually appropriate responses.
From the above, it is clear that ChatGPT generates its responses from textbooks, newspapers, and any other accessible source of information in order to respond to queries from the users. However, here arises one of the IP issues.
As this chatbot can generate texts, the concern is who is the author of the content, but also, if it has the protection the human creators receive from their creation. First, it is important to point out that a work is considered as copyright and it gives protection to its author as soon as it is created in a fixed tangible form. This means that the content shall be available in a physical or digital form to be protected by copyright law.
However, in the case of ChatGPT, it is unclear whether the created content can be protected by copyright law. While the created content could be protected by copyright, it will not be owned by the AI itself. In that regard, the Mexican, European and US laws state that AI cannot own copyright, as it does not have the legal personality, which is a pre-requisite to own such asset, and thus, it cannot be recognized as an author.
In light of the above, ChatGPT cannot own what it creates, but the responses could be protectable by copyright. Although it has not yet been settled by the law, it seems that creators who use AI to support their work may be able to claim ownership of their work, only if they are able to evidence that the work is the result of their creativity. However, if a user asks the chatbot to create a song without more information, it is unlikely that the user would be able to claim ownership over the song.
On the other hand, it is important to point out that the content created by ChatGPT derives from several data, that is, information that was generated by others. Thus, by using such content, you could also infringe authors´ rights.
In that regard, some artists were concerned by the use of ChatGPT, as it has been trained on their works.
Recently, some companies, as GETTY IMAGES sued OpenAI for training on millions of its pictures without consent, and several artists have expressed the same concern. These cases will be litigated in the United Kingdom, but it is expected that artist from all around the world will express the same concern.
In the United States, several authors filed a lawsuit against OpenAI and its chatbot for copyright infringement and violation of other laws. They claimed that the chatbot was trained on their books, without consent, and can therefore generate summaries of the author´s books, which is a clear infringement of their rights.
These lawsuits are currently pending, but the way in which they are ruled would certainly set up some precedents for AI.
Another issue with ChatGPT is that several users have been using AI for creating intellectual property. Indeed, it has been used to draft patents, cease and desist letters, contracts and any other legal document. Besides the fact that it is not recommended to use AI for such purpose, as the information is publicly available (which could ruin novelty if we talk about patents), the AI cannot replace the legal expertise of an attorney specialized in IP, who has valuable knowledge acquired from his experience.
In addition, ChatGPT may not take into consideration the country where you live, and the response may be applicable only for some jurisdictions, in which the applicable law differs from where you are.
Although ChatGPT seems to be an interesting tool in many fields, including intellectual property, users shall not only rely on AI to obtain information and assistance regarding their IP rights, as the provided response may not take into consideration the jurisdiction, but worse, it could make confidential information become public.
Vanessa Rondeau Galindo