8 minute read | January.17.2023
ChatGPT may be a popular choice for chatbot development, but it's not without its risks and vulnerabilities. In this article, we'll take a closer look at the potential dangers that ChatGPT users need to be aware of when using ChatGPT to generate content, and which intellectual property issues may arise in that context.
OpenAI, an artificial intelligence (AI) research laboratory, launched a conversational AI platform in late 2022, Chat Generative Pre-trained Transformer (ChatGPT), that is already revolutionizing the chatbot industry with its accessibility and broad skill set. In less than one week after launch, the platform accumulated more than one million users— a feat that has typically taken even the most successful consumer-facing online platforms one or more years.
While at first glance there may seem to be a lot of upsides to leveraging a free and powerful AI tool, businesses must carefully consider how the use of ChatGPT (or similar offerings) by its personnel creates new legal risks to their operations.
This overview explores the intellectual property ownership, development, and maintenance considerations that businesses must evaluate due to the broad public availability of ChatGPT and similar AI tools.
1. IP Ownership and Authorship
The ability to register intellectual property associated with developments or works solely invented or created by AI has been widely debated. A string of cases including Dr. Stephen Thaler’s patent application for an invention generated by DABUS, an AI tool he created, and a case involving a photograph taken by a monkey, have raised questions as to the level of human involvement necessary to create a protectable invention or work. In Thaler’s DABUS matter, the Federal Circuit found that a human being must be the named “inventor” in a patent application. In the latter matter, when David Slater, a British photographer, tried to claim ownership of a photograph he set up which was taken by a monkey, the US Copyright Office similarly found that works solely created by a non-human are not copyrightable.
Such examples inform the environment into which ChatGPT will similarly be evaluated by the relevant governmental authorities, as thus far, the USPTO and the US Copyright Office have been unwilling to recognize solely AI-generated works. While some other countries evaluating the issue to date have come to similar conclusions as the USPTO and US Copyright Office (such as the UK and EU), other countries (such as South Africa) are already embracing the idea of AI inventors. Thus, international patent and copyright regimes may start to diverge in the short term as the interpretation of local law creates new opportunities for intellectual property protection in some jurisdictions while limiting the protections available for AI creations in others.
3. IP Infringement
Concerns over the risks that the ChatGPT output might infringe on other works should also be considered. Because Chat GPT is a large language model that has been trained on a number of different datasets, there is a possibility that the responses generated from those datasets could infringe on already established works. Using copyrighted material to train the AI model could cause that model to excessively draw from another’s work when providing a response to a user, which would lend itself to infringement claims.
4. Breach of Confidentiality Obligations by Users and Trade Secret Misappropriation
Disclaimer: Please note that as ChatGPT is a new offering in a rapidly evolving area of technology and law, this is only a high-level overview of topics to consider and does not address all potential or actual risks. We recommend conducting a detailed review of ChatGPT with your technical and legal advisors in order to fully understand the impact that such technology could have on your business (whether or not you authorize its use). This review also represents only a snapshot in time, such that future capabilities and legal interpretations in this area may change some or all of this analysis.
Our Technology Transactions team (including Daniel Yost, Sarah Schaedler, Daniel Healow, and Taylor Sullivan) can help you analyze current license terms for ChatGPT or other AI tools, discuss legal strategy for your contemplated business case, and negotiate commercial licenses to meet the bespoke needs of your team and business.