Does Your Business Use AI-Generated Copyright?

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The overlap between Intellectual Property law and Artificial Intelligence-generated (AI) content promises to be a legal minefield for years to come.

For the most part, discussion to date has focused on the unauthorised use of content created by other parties to train AI platforms.

AI platforms accumulate large databases of material (whether visual, text-based or otherwise) which they then use to create new works.

This raises an immediate question of copyright infringement.

However, further questions arise, including the issue of ownership of material generated by AI.

Do you own the IP in that new content you just created?

The law is unsettled on this issue.

Generally, for copyright protection to arise, there must first be some independent intellectual effort by a human in the creation of the copyright material. This would mean that work created purely by AI likely does not give you any copyright protection (particularly when you do not own the AI platform).

How much ‘independent intellectual effort’ will be needed to create a new piece of intellectual property currently remains uncertain. The question is complicated by the fact that the AI-generated material which you may have used as the basis for your new work itself may already infringe the IP rights of one or more authors whose work was used by the AI platform.

Do other people think you own this IP?

And this in turn leads to another question.

If your business uses AI-generated content in its operations or as part of its products or services, would you be able to warrant that you are the owner of that content if you sell it to your customers or if you had to sell your business?

Here’s the crux.

When a business is sold, the vendor is often required to warrant that it is the owner of all intellectual property used in that business. On the basis of the above discussion, a vendor could not give that warranty if they use AI-generated content without making any amendments to that work.

If you feel that your business might be affected, there may not necessarily be a simple solution. Making meaningful changes to AI-generated material used in your business would be a start. This would help meet the ‘independent intellectual effort’ threshold for copyright to arise. There will, however, remain the question of whether any AI-generated material used in your business already infringes other parties’ copyright.

While these issues are worked out, a cautious approach would be wise.

We will also be happy to discuss your business with you further. Contact us today.