Exercise of Copyright and Ownership Rights in Relation to Generative Artificial Intelligence
In connection with the boom of generative artificial intelligence (hereinafter "AI"), questions regarding the exercise of copyright and ownership rights are opening up in the legal sphere. This article will discuss this topic in more detail and examine the various aspects of copyright and ownership rights in relation to AI.
Firstly, it is necessary to clarify what is considered a work of authorship. According to § 2 paragraph 1 of the Act No. 121/2000 Coll., copyright law (hereinafter "copyright law"), a work is considered a literary, other artistic work, and a scientific work which is a unique result of the author's creative activity and is expressed in any objectively perceivable form including electronic form (hereinafter "work"). Furthermore, based on § 5 paragraph 1 of the copyright law, the author is a natural person who created the work.
Therefore, a work of authorship must meet certain conditions set by the copyright law in order to be considered a work of authorship. Based on this definition, we can conclude that any output created by AI cannot be considered a work of authorship, especially because the work will not be created by a natural person but rather by machine artificial intelligence and also because it will not be a unique result of creative activity.
Currently, the two most commonly discussed AI software are ChatGPT and Midjourney. ChatGPT software was created by OpenAI LLC (hereinafter "OpenAI"), and it generates textual content, while Midjourney software was created by a group of developers and deals with generating images based on text.
How do these individual software function? ChatGPT generates output based on input from the user, and together they create generated content. OpenAI in its Terms of Use (hereinafter "Terms of Use") states that users themselves bear responsibility both for their inputs, i.e., for the prompts they input into ChatGPT, and for the use of the generated output. For inputs uploaded into ChatGPT, users must ensure that they do not violate any law, including copyright law. This is especially true for the Midjourney software in cases where users upload an image to the software that may be subject to copyright. Users also bear responsibility for the overall content including the output from ChatGPT and Midjourney, and must be careful not to publish such generated content that infringes the copyright of another person whose work the AI software used for its output.
Considering that AI software does not cite sources from which it draws for its output, especially given the number of sources it works with, care must be taken with obvious plagiarisms that can be easily detected, especially in the visual context generated by the Midjourney software.
In the next section, we will focus on the more practical aspects related to outputs from AI software, particularly the ownership rights to outputs from ChatGPT. As mentioned above, copyright rights generally cannot be held to outputs from generative AI, although there is an exception worth mentioning. This represents the situation where the user edits the AI output, enriches it with their unique creative elements, and then presents such output as their work of authorship. In this case, the user, by creatively processing the AI output, may acquire copyright rights to the so-called derived work of authorship, which arises from the creative processing of another's work according to § 2 paragraph 4 of the copyright law. However, it is important to keep in mind that in this case, the AI output must be processed and supplemented with one's thoughts and ideas.
An important question, however, remains as to who and how will be able to use this content for their benefit. In the Terms of Use, OpenAI states that the user retains ownership rights to their input and also acquires ownership rights to the output from ChatGPT. This can then be used even for commercial purposes. The developers of Midjourney software have different rules, where ownership rights apply only to images generated in the paid version of the software, while images from free accounts can be generated only for non-commercial use.
Therefore, the user of AI output does not acquire copyright rights to the output but does acquire ownership rights to it. This in practice means that the user can dispose of the output in accordance with the Terms of Use and in compliance with the law. Although becoming the owner of the generated content, it cannot be guaranteed that another user will not use similar or even the same output, perhaps even for the same purpose, given that the output cannot be protected as a work of authorship. In the Terms of Use, OpenAI also points out that the output from ChatGPT may not be unique, and other users may get similar or the same output. In this, we can see another aspect of why the output from AI cannot be considered a work of authorship, as the fact that there can be multiple outputs goes against the characteristic features of a work of authorship, where its uniqueness, which is considered one of the fundamental conditions for the creation of a work of authorship, is assumed. In the event that a user publicly uses purely AI-generated content without any personal creative addition and discovers that such content has also been used by someone else, they cannot claim any protection, as this content will not be subject to copyright protection.
Furthermore, it is also necessary to point out the Principles of Sharing and Publishing by OpenAI, where it is stated that the user must publish the work under their name and at the same time inform that the content was created by AI. Although OpenAI should proceed so as not to violate anyone's copyright, in the event that copyright infringement or other intellectual property rights of third parties occur, OpenAI disclaims any responsibility. Currently, several copyright lawsuits have been filed against OpenAI, so it can be assumed that courts will soon begin to address this issue and start shaping it.
In conclusion, the user of AI will acquire ownership rights to the output, but this will be independent of copyright, which will not arise as it will not be a work of authorship. Using outputs generated by AI can make work easier for users in many respects, but care must always be taken to ensure that content generated by AI is used in accordance with the terms of use of the respective developers and with applicable laws, and overall be careful when using outputs from AI.