Who Owns the IP in ChatGPT?

This article was first published in ‘The Patent Lawyer’ and has been re-published with the author’s permission.

Ever since the printing press was invented, tools have empowered the innovation and  creativity of humans to earn a pecuniary right from the things that they create. ChatGPT is no less than the most advanced typewriter made freely available to us. It should be used as such, as the good news is if you assert it you will still own the Intellectual Property that you create with it.

In Australia, under the Copyright Act 1968, a person who is an Australian citizen or resident is the owner of copyright in a literary, dramatic, musical, or artistic work if it is original and involves an exertion of human skill, creativity, and independent intellectual effort.

The intersection of IP and AI will become of increasing importance as AI technology advances. AI systems including ChatGPT, DALL*E and many others are capable of creating works that are protectable under IP law, such as music, artwork, and literature. AI systems can also be used to create inventions that are protectable under patent law.

As the debate around Intellectual Property ownership evolves, the current position in Australia is that copyright must have a human author. In order for a work to be sufficiently original to attract protection under the Copyright Act, there needs to be an exertion of human skill. The adaptation of ChatGPT content by business owners is key to ensure that it involves ‘independent’ intellectual effort to then be assigned as Copyright.

The following should be considered regarding Intellectual Property ownership and AI:

• Outputs of data which are generated solely by computer programs without any work or skill from a human creator have failed to meet the requirements for protection under copyright as they are not original literary works. Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149
• Factual data contained in a compilation is not sufficient to attract protection under the Copyright Act. In IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14, the High Court considered that the lack of human intervention in the preparation of telephone directories by a database which outputs factual data through the use of a software program did not constitute an original literary work.
• However, under the Patents Act 1990 (Cth) an AI can be listed as the inventor on the registration, however it is not ultimately recognised as the owner given that it is not a legal entity. The court also considered the owner of the AI program would own any inventions made by the program. Thaler v Commissioner of Patents [2021] FCA 879

The printing press advanced the creative expression of humans, and advanced also our laws, laying the foundations for copyright laws created with the Statue of Anne during an age of enlightenment in 1709. Fast forward to 2023 and whilst AI will challenge laws of copyright, patents and IP ownership the foundation of intellectual property being a product of the human mind or intellect still remains a foundation of protection and commercialisation of ideas. 

For now.

This article, written by Gareth Benson, was originally published by The Patent Lawyer.
Gareth will be joining The Faculty Roundtable Program on 16th April for a masterclass on the challenges posed by artificial intelligence (AI) integration, in contemporary business landscapes. If you’re a Roundtable member, you can register for the masterclass here.