Dear Editor:
I didn’t attend the Annual Meeting artificial intelligence (AI) presentation, but I enjoyed Nick Witras’s summary, “The AI Cheat Code: How ChatGPT (and AI Tools) Will (and Won’t) Forever Alter Human Work” (AR, January-February 2024). Witras asks: “Are there intellectual property issues related to the use of AI such as copyright/trademark infringement?” There sure are!
Like everything with AI, copyright is evolving.
In general, copyright law protects the creator and provides five exclusive rights, including the rights to copy, distribute and make derivative works. The law provides various permissible uses (facts are not copyrightable, nor ideas). The fair use clause has a four-factor test and provides a rebuttable defense for some copying. An important fair use is transformative use, where the original use is transformed in a different manner or purpose from the original. Fair use law requires a case-by-case determination.
The AI tool has no copyright rights because it is not human. The AI user may have no copyright right if the user is deemed to have not performed sufficient creative input. The AI output may be deemed transformative and permissible, or it may be deemed a copyright infringement of one of the five exclusive rights.
There are currently several AI-related copyright infringement class-action lawsuits against AI firms and lawsuits against users. Copyright law is country-specific, and statutes and common law are not identical. The New York Times lawsuit and others may take years for the courts to resolve, and ultimately, we may see new laws.
—Jerry Tuttle, FCAS