The Legal Implications of ChatGPT: Issues of Intellectual Property

By Gabrielle Cohen

Gaby Cohen is a second-year student at the University of Pennsylvania’s College of Arts and Sciences studying philosophy, politics and economics.
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ChatGPT has generated intellectual property and copyright controversies and ignited debate among students, teachers, writers, artists, content creators, and employees of every kind. Released in November 2022, ChatGPT is an artificial intelligence chatbot powered by a large language model, which prompts it to perceive human language, evaluate and sort through immense collections of data, and produce replies [1]. The chatbot was developed by OpenAI, a startup based in San Francisco funded by prominent investors such as Elon Musk, Sam Altman, and Microsoft. ChatGPT consists of generative AI, using algorithms to generate, summarize, and alter data [2]. Human users type written prompts into the engine, and the software produces a response in a conversational manner that attempts to replicate a human reply [3]. To generate its response, the Generative Pretrained Transformer takes data from the internet.

The chatbot is a godsend for some but a threat to others: Could it fool teachers? Replace jobs? Perhaps one of the most significant concerns among lawyers and creators: Could it spawn legal disputes? In a nation where now over 646,000 patents are filed annually, it is important to decipher the legal implications of text produced with ChatGPT in terms of intellectual property and potential copyright breaches. [4]

As a large language model, ChatGPT sorts through heaps of existing data from the internet [5]. Contrary to its appearance, the program is not capable of creating new information. Instead, ChatGPT uses a process to generate responses that involves analyzing and summarizing pre-existing data. From an intellectual property perspective, many legal scholars hold that this means the chatbot can contribute to projects but cannot be credited as an author or an entity that has created new content.

However, a full consensus does not exist. Other legal experts argue that ChatGPT can improve or manipulate the existing data that it sorts through and produce its own original material, similar to a student writing a research paper. They claim that this ability to make its own contributions to the existing content qualifies as authorship or inventorship. Margaret Esquenet, a partner at Finnegan, Henderson, Farabow, Garrett & Dunner, outlines that content ownership may depend on the AI training data set that gives the AI tool its information, the owner of the training data set, and the similarity between the data set and the work the AI produces [6]. If the chatbot is capable of the creation of intellectual property that can be patented or trademarked (or if at least one can argue this), and if it can be regarded as an author in textual works (or if at least one could argue this), the issue of ChatGPT’s ability to be charged with breach of copyright remains.

In terms of potential IP violations, the argument that ChatGPT cannot breach copyright because it is not a legal entity begs the question: If the produced response does breach copyright, who then is responsible? When employees use ChatGPT to generate texts to be distributed to a larger audience, there is a legal risk of indirectly using another person’s or entity’s patented or copyrighted intellectual property [7]. Some have asserted that when these breaches occur, the person or entity using the language model would be legally at fault for creating the infringing content [8]. However, the situation becomes more nuanced when we consider the vast number of people who argue that ChatGPT may legitimately be credited with authorship in its content creation process. Even here at the University of Pennsylvania, some professors have instructed their students to cite ChatGPT as a source if used in their written assignments [9]. These judgments certainly foster some contradictions, expected for such a rapidly developing field.

According to Esquenet, US law requires that copyright protection be granted only under the conditions that the work is original and was produced by a human being [10]. In 2011, a monkey in an Indonesian jungle got hold of a photographer’s camera and took a “monkey selfie” [11]. When the photographer used the photo in his book, People for Ethical Treatment of Animals (PETA) promptly filed a copyright suit in 2015, stating that the use of the photo violated the monkey’s rights under US copyright law [12]. A judge ruled that copyright law does not apply to animals. Therefore, one may deduce that copyright infringement does not either. There are no official precedents for copyright infringement by a non-human entity. However, according to Michael Kebler, co-chair of Neal Gerber Einsenberg’s IP practice, the court system has been hostile to the notion of non-humans claiming authorship or inventorship, and in both cases, thereby ownership of the IP” [13].

Many comparisons to other digital works can be made when determining who or what is responsible for the content that ChatGPT creates. Kebler points to examples of graphic artists owning the artwork that they make using drawing software [14]. If ChatGPT were equivalent to these types of software, the human would be responsible for creating the work, and the chatbot would simply be the tool used to follow his or her directions and carry out his or her vision. However, Kebler also notes that ChatGPT significantly limits a human’s ability to regulate the output of the chatbot. All things considered, Kebler asserts that protests of IP violations are not likely to succeed in court because these claims require veritable proof of one party copying another’s work, which does not occur with AI generation.

The question of ChatGPT intellectual property ownership and liability remains obscure. ChatGPT will certainly not be going away any time soon, and with software improvements fast-approaching, settling potential issues of ownership and copyright breaches will only become more crucial.

References
[1] Browne, Ryan. “All You Need to Know about Chatgpt, the A.I. Chatbot That's Got the World Talking and Tech Giants Clashing.” CNBC. CNBC, February 8, 2023. https://www.cnbc.com/2023/02/08/what-is-chatgpt-viral-ai-chatbot-at-heart-of-microsoft-google-fight.html. 
[2] Fruhlinger, Josh. “What Is Generative Ai? the Evolution of Artificial Intelligence.” InfoWorld. InfoWorld, March 10, 2023. https://www.infoworld.com/article/3689973/what-is-generative-ai-the-evolution-of-artificial-intelligence.html#:~:text=Generative%20AI%20is%20an%20umbrella,that%20didn't%20previously%20exist. 
[3] Browne, ““All You Need to Know about Chatgpt, the A.I. Chatbot That's Got the World Talking and Tech Giants Clashing.”
[4] “U.S. Patent Statistics Chart Calendar Years 1963 - 2020.” U.S. Patent Statistics Summary Table, Calendar Years 1963 to 2020, 05/2021 update. Accessed March 14, 2023. https://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm. 
[5] “Chatgpt: From the Horse's Mouth.” Monash Lens, February 13, 2023. https://lens.monash.edu/@politics-society/2023/02/13/1385448/chatgpt-old-ai-problems-in-a-new-guise-new-problems-in-disguise#:~:text=The%20first%20legal%20concern%20related,training%20data%20may%20be%20copyrighted. 
[6] McKendrick, Joe. “Who Ultimately Owns Content Generated by CHATGPT and Other AI Platforms?” Forbes. Forbes Magazine, February 22, 2023. https://www.forbes.com/sites/joemckendrick/2022/12/21/who-ultimately-owns-content-generated-by-chatgpt-and-other-ai-platforms/?sh=308a9e985423. 
[7] Grossenbacher, Karla. “Employers Should Consider These Risks When Employees Use Chatgpt.” Bloomberg Law, February 16,2023.https://news.bloomberglaw.com/us-law-week/employers-should-consider-these-risks-when-employees-use-chatgpt. 
[8] “Chatgpt: From the Horse's Mouth.”
[9] Meredith, Marc. “Writing Assignment #1.” Public Policy Process, PPE 3002-401. University of Pennsylvania, Philadelphia, PA. February 28, 2023.
[10] McKendrick, “Who Ultimately Owns Content Generated by CHATGPT and Other AI Platforms?”
[11] Slotkin, Jason. “'Monkey Selfie' Lawsuit Ends with Settlement between Peta, Photographer.” NPR. NPR, September 12, 2017.https://www.npr.org/sections/thetwo-way/2017/09/12/550417823/-animal-rights-advocates-photographer-compromise-over-ownership-of-monkey-selfie. 
[12] “Copyright for Animal Selfies - Monkey Business?” Nelligan Law, September 20, 2021. https://nelliganlaw.ca/blog/copyright-for-animal-selfies-monkey-business/#:~:text=In%202014%2C%20the%20United%20States,photograph%20taken%20by%20a%20monkey.%E2%80%9D.[13] McKendrick, “Who Ultimately Owns Content Generated by CHATGPT and Other AI Platforms?”
[14] Ibid.

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