If a user were to provide an artificial intelligence (AI) programme, such as ChatGPT, with a storyline and it produced a best-selling novel, would that novel be protected by copyright? And if it is, who would own these rights? 

Intellectual property (IP) rights and ChatGPT 

The launch of OpenAI’s ChatGPT service attracted more than one million users in the first four days. ChatGPT can make gift recommendations, debug codes, pass an exam, as well as write essays, academic articles, comedy routines, recipes and even music. This is all true but demands consideration of what and how this is happening, and what the potential implications are for IP rights and their owners. 

What is ChatGPT? 

ChatGPT is chatbot technology – a computer programme that uses AI and natural language processing to understand questions and then automate responses to them. Chatbots are powered by large amounts of data and machine learning techniques that enable them to predict the most accurate answer, formulate it and provide it to the user. 

Whilst the first of its magnitude, ChatGPT is not the only AI platform capable of generating content in this way – there is a laundry list of them available and more coming into the space daily.  

Their functionality is also not limited to text, but they can generate graphics, images, videos and more. One such example is OpenAI’s graphics tool called DALL-E which converts text into graphics.  

One can only imagine that the possibilities for creators can become endless if all that is required is a simple text prompt. 

Copyright protection 

Traditionally, works created through the intellectual or creative efforts of the human mind are protected by the different forms of IP and particularly copyright. 

The moment when a work is created that qualifies for copyright protection, it is automatically protected. Therefore, if AI-generated content satisfies the requirements for copyright to vest, it too could be protected, in which case the rights in that work will belong to someone. 

The Copyright Act in South Africa differentiates between the traditional authorial works (e.g., literary, musical and artistic) and works that are “computer-generated”. 

Who is the author? 

To determine whether the work was “original” in its making, you need consider the skill, effort and labour expended by the author in its creation. AI-generated content has no human author, but the Copyright Act dictates that the “author” of a computer-generated work is the person responsible for making the arrangements for its creation. 

The meaning of “making the arrangements necessary for the creation of the work” is not entirely clear and it is likely that the debate will arise here. 

  • Is it the developer of the AI?  

Programmes such as ChatGPT, DALL-E and others generate works by making independent decisions in determining what the work should look like. The results generated by the programmes are not fixed, nor are they designed by the developer. In fact, the results cannot even be predicted or expected by the developer and depend in the first instance on something that is conceptualised by the user. 

  • Is it the user? 

The proximity of the developer to the work created as compared to the input of the user leads to a second potential argument, which is that the user could be considered the person responsible for making the necessary arrangements for the work to be created. 

Copyright ownership 

The answer to the question of copyright ownership over AI-generated content is not straightforward and requires careful consideration. Whilst the technology gains speed and attention, and legal minds unpack its implications, the take-out would be to embrace the possibilities with the awareness that they are not risk-free. 

OpenAI’s terms currently state that any rights arising from the creation of works are assigned to the user, subject to compliance with the terms of the user agreement. The terms also contain a licence in favour of OpenAI to continue using the content generated and a warning that the AI programme may generate the same or similar output for other users, given the nature of machine learning. 

The use of AI to generate content for commercial exploitation should be approached with extreme caution. The content of this article is intended to provide a general guide to the subject matter and specialist advice should be sought for specific circumstances. 

Full acknowledgement and thanks go to Werina Griffiths, Adams & Adams and https://www.mondaq.com/ for the information in this editorial. 

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