Is content generated by Artificial Intelligence (AI) protected by copyright?  

Artificial intelligence is a challenge faced by many legislations since it is not completely regulated, leaving Intellectual Property vulnerable. If a work can be created by AI, who owns the copyright?

In an era where technology is advancing at such a rapid pace, it is necessary for human beings to be constantly updated. Thanks to human intelligence we have seen great inventions that technology has developed on a large scale.

Artificial Intelligence (AI) has been one of the latest innovative creations by humans, allowing quick access to any information and without barriers. The aforementioned concept can be understood as the ability of a machine to initiate intelligent human-like thinking and cognitive behavior based on continuously learned information (Lanquist & Rota, 2023).

However, although human inventions are of great help and can facilitate access to certain information, the case of AI is not always favorable since there may be cases where copyrights, patents, and any other information protected by Intellectual Property may be violated. Because of this, it is necessary to obtain prior authorization from the owners to access, disclose or use such information.

It is indisputable that new technology will emerge, but we cannot ignore that there will be cases where the technology will be more advanced than the legislation itself, a situation where it will appear powerless , being forced to modify itself in order to regulate new technologies without allowing the infringement of the rights protected by Intellectual Property, as is the case of Artificial Intelligence.

It is likely that many have heard of or even used the recent program called "ChatGPT", where one can type a query and ChatGPT uses natural language processing techniques to understand the content of the question. It then uses its training database to find the most relevant and appropriate answer to the user’s query. ChatGPT has been trained to handle a large amount of data, its responsiveness is limited by the knowledge that has been acquired during training (Arevalo, 2023).

Despite the positive factors and the ease that AI can provide, the problem arises when AI extracts information protected by Intellectual Property. Some cases where this concern is generated are in the infringement of copyright.

Some of these concerns may include:

First, whether an alleged infringer had access to a copyrighted work; or if the AI program employed a content moderation module, in which the information provided in response is scanned to ensure that it does not include any inappropriate (or infringing) content (Lanquist & Rota, 2023).

Doubts continue to arise on this topic, and we cannot help but question the data used to train AI systems. So, do they require the consent from authors or performers, who also seek attribution and compensation, for the use of their work? Many additional questions remain unanswered, which is why authors, artists, and performers believe that these ways of training AI systems should be subject to the "three C’s": consent, credit, and compensation. (Love, 2023)

We can get an answer to the aforementioned questions through the following case study:

In the United States of America in 2019, the United States Copyright Office (USCO) denied Stephen Thaler the registration of an AI-generated work made with the algorithm he had created, called "Creativity Machine". As a result of the refusal, Thaler sued the Copyright Office, claiming that the copyright would be granted to the "Creativity Machine" and subsequently transferred to himself as the owner of the same. However, the ruling was denied on the grounds that there was no creative contribution by a human being, a fundamental requirement of copyright. Thaler appealed this decision, but the decision was again denied.

Regarding the Stephen Thaler case, within the context of copyrighted works of authorship and patentable inventions, certain software can be used to create the underlying work or invention. Certainly, this raises the question: while an inventor or author must be a human being, how much technological intervention (i.e., "digital help") can be used to reach a copyright-protected threshold?

As this issue develops, more and more questions arise for which there may not be answers which are regulated under the protection of Intellectual Property Rights.

Historically, Copyright Law in relation to photographs had to be regulated to determine that a photograph constitutes copyright despite the mechanical intervention of a camera. Although it is true, at some point this was not regulated, so it would be no less true, that oneday AI-generated photographs may be protected by copyright. So how much "intervention" does an AI-driven machine exert?

If Copyright Law is based on the notion of human authorship, the original work is then protected by copyright, AI platforms will later call this concept into question since the AI itself has created its own content or has obtained it from different databases where they have been trained. Here they have obtained large amounts of information where unintentional plagiarism can originate, pushing aside the originality of human invention. This produces a thin line that separates human authorship from those created by artificial intelligence, making it difficult to isolate one from the other.

All these dilemmas are not regulated in the Intellectual Property laws of many countries. As we can learn from the Stephen Thaler’s case, there are more cases emerging in which AI interferes with Intellectual Property. Therefore we can ask ourselves the questions; will each country regulate Intellectual Property issues and AI differently? Who should be considered as the author of a work when AI creates content protected by Intellectual Property?

These are just some of the questions we can raise, in addition to the different complex cases that may arise in the future.

It is then where we find great challenges for Intellectual Property with respect to Artificial Intelligence. We can also infer that new technologies will emerge that will appear as new challenges for which legislation will have to adapt to limit the use of these new technologies and prevent the violation of Intellectual Property rights.




Author: José Antonio Villeda
Associate, Arias Law, Honduras
ariaslaw.com