ChatGPT has taken a different level of presence in the technological world, with this AI system being used to generate all types of literary and artistic content. With the advent of more sophisticated AI systems and the depths in which these can function, the worlds of literary creators have been taken by storm.
Copyright protection specifically granted to books and other literary works is generally referred to as “literary copyright”.
It is a kind of intellectual property (IP) protection that bestows on the author or creator of a book, the rights to reproduce, distribute, display, and perform the work, as well as the right to create derivative works based on the original book. Literary copyright ensures that creators have control over the use and exploitation of their works and provides legal safeguards against unauthorized reproduction, distribution, or adaptation of their books.
Key Legal Issues
- The AI software code is subject to copyright laws.
- Content needs to be the product of human authorship. Copyright law only extends to creations created by humans.
- AI generated content is produced by an inert entity that uses an algorithmic, therefore does not fall under copyright protection.
Artificial Intelligence (AI) has disrupted the competitive marketplace. With the advent of more sophisticated AI systems and the depths in which these can function, the worlds of literary creators have been taken by storm. However, interesting to note that the current legal conundrum surrounding IP protection of AI outputs is not a completely novel topic. In fact, the effects of technology and computers on creativity as well as associated authorship debates date back more than half a century.[1]
AI technology has spilt over onto the artistic industries, resulting in more common use of AI systems for creative production, including books and publications. ChatGPT has taken a different level of presence in the technological world, with this AI system being used to generate all types of literary and artistic content, including translations, news articles, poetry, and scripts. This has of course presented complex issues of intellectual property rights concerning AI and the ownership of such works.
Like the music industry, the publishing sector is not a homogeneous sector and consists of a multitude of sub-sectors, with the most notable distinction being between books and news publishing. In the case of this content type division, the book sector experiences less metadata challenges than the news publishing sector.
Copyright & ChatGPT: The AI Software
With regards to the issue of copyright ownership of the software itself, this subject does not require any detailed analysis per se. There seems to be quite consensus on this question.
The software code itself behind the algorithm of operation of AI services, such as the code behind ChatGPT, is subject to copyright. This falls under general, established rules on this matter, mainly Copyright Acts in different jurisdictions and such ownership rights belong to the software writer.
The software code per se is treated as a literary work and can enjoy the same legal protection as any other literary artistic work protected under traditional laws. When posed this same question, ChatGPT itself affirms the following,
“The copyright on ChatGPT belongs to OpenAI, the company that developed me. OpenAI has the rights to the model and the information it generates. This includes the copyrights on the programming code, the machine learning model and other related aspects.”
Copyright & ChatGPT: Content & Output
The other debate relates around the classification of AI-generated material, writings, text, programming code, pictures, or images and their eligibility for copyright protection which is contentious. This tension is aptly delineated by WIPO itself in its “Conversation on Intellectual Property Policy and Artificial Intelligence”[2] which has the aim is of “formulating the questions that the policymakers need to ask” when drafting laws.
“AI applications are increasingly capable of generating literary and artistic works. This capacity raises major policy questions for the copyright system, which has always been intimately associated with the human creative spirit and with respect and reward for, and the encouragement of, the expression of human creativity. The policy positions adopted in relation to the attribution of copyright to AI-generated works will go to the heart of the social purpose for which the copyright system exists. If AI-generated works were excluded from eligibility for copyright protection, the copyright system would be seen as an instrument for encouraging and favouring the dignity of human creativity over machine creativity. If copyright protection were accorded to AI-generated works, the copyright system would tend to be seen as an instrument favouring the availability for the consumer of the largest number of creative works and of placing an equal value on human and machine creativity.”
Definition of ‘Work’
Under Maltese law, specifically the Copyright Act (the “Act”),[3] the term “work” refers to any original literary, dramatic, musical, or artistic creation, irrespective of its form or manner of expression.
The Act recognizes various types of works that are protected by copyright, including but not limited to:
- Literary works, encompassing writings, books, articles, computer programs, and other similar textual or written works.
- Dramatic works, including scripts, plays, choreographic works, and other dramatic performances.
- Musical works, covering compositions, songs, and any other musical creations, including accompanying words or lyrics.
- Artistic works, containing paintings, drawings, sculptures, photographs, architectural works, and works of artistic craftsmanship.
- Audio-visual works, referring to works that combine visual and auditory elements, such as films, videos, and multimedia presentations.
- Sound recordings, encompassing recordings of sounds, including musical performances, speeches, and other audio materials.
- Broadcasts, involving live or recorded radio or television broadcasts.
It is debatable whether any content produced by ChatGPT would meet the criteria outlined above. This is because such ChatGPT content exclusively depends on the algorithmic application by an inert entity, therefore resulting in an automatic negation of any possibility of inventive action.
Definition of ‘Author’
Furthermore, the Act provides that the term “author” refers to the individual who creates a work. The Act defines an author as the natural person who creates the work by exercising their skill, effort, and creativity. The author is the originator of the work, and the human element can be felt in the fibres of the definition and other sections of this law. Another consideration is the fact that, while legal entities can own copyright under certain conditions, the original authorship, according to Maltese national law, always rests with the natural person who is the creator.
Under EU law, the necessity of human intellectual endeavour results mostly from the CJEU case-law that emphasises the model of ‘originality’. The concept of originality is premised on the notion of human authorship that would reflect human creative choices. Painer[4] and Cofemel[5], which refer respectively to the need for a “personal touch” in the creative process and to the “personality” of the author being reflected in a work as “an expression of his free and creative choices”.
Author Kris Kashtanova hit the headlines last year by publicly claiming to be the first artist to receive copyright for an AI-generated work. The author sought protection and registration of her comic book “Zarya of the Dawn”[6]. The book incorporated images created using an AI generator (Midjourney). Having been taken by surprise, initially, the Copyright Office approved such request. However, later on, such decision was placed under review and information was requested after having discovered that AI technology was employed. After revaluating the case, the Copyright Office revoked the original certification and published a new one, with the latter clarifying that the written content created by the artist Kashtanova herself, would be protected by copyright but the AI-generated pictures would not receive such protection. This is because of the fundamental tenet that copyright law only extends to creations crafted by humans.
“We conclude that Ms. Kashtanova is the author of the Work’s text as well as the selection, coordination, and arrangement of the Work’s written and visual elements. That authorship is protected by copyright. However, as discussed below, the images in the Work that were generated by the Midjourney technology are not the product of human authorship. Because the current registration for the Work does not disclaim its Midjourney-generated content, we intend to cancel the original certificate issued to Ms. Kashtanova and issue a new one covering only the expressive material that she created.”
Setting a crucial precedent, this ruling has established that that copyright protection applies exclusively to works produced by human creators and serves as a guiding standard for future evaluations and registrations of AI-generated compositions.
06 Jun 2023
Footnotes
[1] Karl F Jr Milde, ‘Can a Computer Be an Author or an Inventor’ (1969) 51 Journal of the Patent Office Society 378; Stephen Hewitt, ‘Protection of Works Created by the Use of Computers’ (1983) 133 New Law Journal 235; Pamela Samuelson, ‘Allocating Ownership Rights in Computer-Generated Works’ in Andrew Ruymann (ed), Symposium cosponsored by University of Pittsburgh Law Review
[2] WIPO 21 May 2020, Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence,WIPO/IP/AI/2/GE/20/1 REV.,
https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ip_ai_2_ge_20/wipo_ip_ai_2_ge_20_1_rev.pdf
[3] Copyright Act, Chapter 415 of the Laws of Malta
[4] Eva-Maria Painer v Standard Verlags GmbH, Case C-145/10, 1 December 2011
[5] Cofemel—Sociedade de Vestuario SA v. G-Star Raw CV, Case C-683/17 (2019)
[6] 2023.02.21 – United States Copyright Office Registration # VAu001480196 Reply Letter, Zarya of the Dawn