The rapid development of generative AI and the relatively easy access to its tools are leading to the generation of AI results by many market participants. The questions many entrepreneurs are probably asking themselves are: how to protect AI results, who has the rights to them and whether they can be transferred to another entity.
In the case of copyrighted works, computer programs, or databases, the answer is generally simple and can be found in applicable law. With regard to AI results, the situation becomes more complicated due to the lack of explicit regulations governing AI. The AI Act currently underway in the European Union does not address this issue, as it does not address the copyright status of AI results.
AI RESULT AND COPYRIGHT PROTECTION
For example, OpenAI, the provider of ChatGPT, in its Terms of Use (Terms of UseThe result is generated by AI based on the user’s prompt, but that is not enough to recognize the human creative contribution. At least for now, these are the prevailing views regarding the recognition of AI-generated results as works.
Even if we were to adopt a different view, there are still no established rules for determining who, in such a case, should be recognized as the creator of the work—the provider of the AI solution or the user. As a side note, not every provider of generative AI solutions transfers rights—sometimes it is merely a matter of granting a license.
AI RESULT – DIFFERENT APPROACHES AND SITUATIONS
As is often the case, details matter – and this is also true when it comes to AI results. The entire result obtained from a user-entered prompt will generally not be subject to copyright protection. Therefore, there will be no copyright ownership rights that could be transferred. This may be different, for example, when:
- only part of the work is created by AI, the rest by humans
- many AI results are combined by humans in a creative way
- AI output is the result of many creative human commands
In each case, a separate analysis will be required to determine whether such a "work" is considered a work under copyright law. The last example I provided raises the most doubts – the result is generated by a machine anyway. Some prompts are also created by AI (applicable plug-ins to existing AI solutions), so it's difficult to speak of human creative involvement. However, if the work were created with the help of AI and, as such, met the criteria for a work defined by copyright law, we could speak of copyright ownership, which would be transferable.
PROBLEMS WITH CLASSIFYING AN AI RESULT AS A WORK AND THEIR CONSEQUENCES
Existing legal uncertainties regarding the copyright status of AI results are leading to the emergence of users who treat AI results as their own and fail to acknowledge this to their contractors. I have serious doubts about whether provisions regarding the transfer of copyright to such a "work" can be considered valid and effective. Such problems most often arise in the publishing and marketing industries, but not exclusively. Currently, we lack effective solutions to verify whether a given work was created by AI or a human.
The above example of negative practices demonstrates the pressing need for legal regulations that address AI results (the current Copyright and Related Rights Act is incompatible with the realities of AI). Until such regulations are in place, solutions based on existing regulations remain. If AI results cannot be protected under copyright law, the question remains what other protections can be considered. Here, we should address regulations concerning combating unfair competition, or perhaps the provisions of the Civil Code concerning personal rights.
COPYRIGHTS TO AI RESULTS – IT DEPENDS
In summary, the answer to the title question should be a legal one: "it depends." Generally, AI output is not protected by copyright, but there may be cases where the human contribution to a work created with the help of AI is significant enough to qualify as such. In such cases, it will be possible to conclude copyright agreements for such works.
Please feel free to contact me law firm.
*Photo by Steve Johnson on Unsplash
