The sudden rise of artificial intelligence (AI) has created a sensation, particularly among writers, artists, programmers and other creators. Recent progress in AI services have been most impressive, with products like ChatGPT4 being so powerful as to permit users to produce written materials and even software programs using a plurality of relatively simple prompts. The products generated are often so impressive that they are often almost indistinguishable from human generated writing or coding. The vast knowledge base in applications like ChatGPT4 permits a user to effectively generate a detailed and surprisingly well written article or paper on any subject imaginable in just a matter of minutes. Again, the product produced is sufficiently well written and researched, including references, that it could easily pass for something written by someone knowledgeable in the subject matter. While there are some problems with the process, including the slight tendency for applications like ChatGPT4 to generate erroneous references (a phenomenon referred to as hallucinating), existing AI tools are already proving themselves to be useful to the point of becoming indispensable for many creators.

Of critical importance in the creative industry such as programming, writing, and other creative endeavors, is the issue of ownership. Investing significant effort and time into a creative work requires the creator of the work to retain ownership otherwise there is little incentive to create. Classically, creative works are protected by copyright, which protects the owners of the copyright in a work from anyone who would copy the work, or portions thereof, without the authorization of the copyright owner. Another concern is the incorporation of copyright protected works in the training and creation of large language modules (LLMs) which are used by AI applications to generate products in response to prompts and queries. Let us explore the intellectual property issues relating to the ownership of the products of AI applications and the use of copyright protected material in the construction of LLMs.

Copyright - Who Can Own Copyright

With a few exceptions, only human beings had the ability to generate creative or artistic products. The few examples of "works" created by non-humans generally consisted of "paintings" created by chimpanzees, elephants and other animals. It was the general proposition that these "works" created by non-humans were not fit subject matter for copyright protection precisely because they were not created by human beings. Copyright in a work is held by the author. To be an author, one must be a legal person and animals, not being legal persons, therefore cannot be authors. Nor can animals be owners because an owner must be a legal person. Furthermore, by definition, a work must be the product of creative effort and animals are considered to lack creative effort. Such works are therefore in the public domain. There is a famous image of a "smiling monkey" which was actually taken by the monkey itself on a camera set up for the monkey to use. The United States copyright office determined that the photograph was not protected by copyright and was in the public domain (Compendium of the U.S. Copyright Office Practices, Third Edition (public draft), US Copyright Office, 19 August 2014, p.54).

Given how copyright relating to "works" created by animals is treated by the law, it was initially obvious that AI generated works could not be subject to copyright protection because an AI application, not being a legal person, could not be an author, an owner and, furthermore, the AI application lacks the creative effort required to lend copyright protection to the work. Leaving aside the last point (creative effort), it's clear that AI applications are not legal persons and therefore cannot be authors of a work and cannot be owners in any property, including copyright. On those grounds alone, the AI created work cannot be subject to copyright protection. As for the issue of creative effort, it's tempting to consider the possibility that AI applications are of sufficient sophistication that they do in fact posess creative ability. As we shall determine further on, the creative abilities of AI is a dual edged sword. Suffice it to say that because AI applications do not qualify as legal persons, they cannot own copyright and they cannot be authors of a work.

It's been argued that AI applications are nothing more than sophisticated tools, and as such the work is not a product of the AI, but rather the artist who wields the tool. This line of argument reckons the AI application is analogous to a sophisticated paintbrush. The paintbrush isn't the creator of the work, the artist holding the paintbrush is. This line of argument leads to the obvious conclusion that the person providing the prompts to the AI application is, like the painter holding the paintbrush, the author of the work and the owner of the copyright in the work. Except this is not the case. As mentioned previously, there is some debate as to the creative potential of AI applications. As of 2024, there is little practical debate. AI applications such as ChatGPT4 have sufficient creative ability to actually generate creative works. In fact, the works created by modern AI applications are often not discernable from works created by human beings. The works created by modern AI tools pass the "creative effort" test for copyright. If there is any doubt, I suggest the reader log onto ChatGPT4 and prompt the AI with the following: "Create an original poem", then review the product. It will clearly be an original poem which reads very much as if it were created by a poet of at least modest creative ability. The effort expended by the prompt is minimal and falls far short of the "creative effort" required for copyright to subsist, so where did the obvious creativity in the generated poem come from? Clearly, the creative talent came from the AI itself, not the prompter.

It was the fact that the creative effort can be implemented by the AI application and not the prompter that led the US Copyright Office to determine that merely prompting an AI application is insufficient to permit copyright to subsist in the work because the work was the creative effort of the AI and not the prompter. Even relatively elaborate prompts such as "write a poem about copyright law in the stile of William Shakespear" was determined by the US Copyright office as being insufficient for copyright to subsist in the works since the actual words selected, the rhyming pattern, and the structure of the poem was determined by the AI, not the prompter. See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence 03/16/2023.

The US Copyright office did provide some guidance as to which works containing AI generated material may be subject to copyright protection. Where the human artist arranges the AI generated materials in a creative way, then the work as a whole may be subject to copyright protection. Additionally, where an artist modifies or manipulates the AI generated material in a creative way, then the modified work may be subject to copyright protection. The original AI generated work is not protected by copyright.

This approach was essentially affirmed in a recent decision of the US District Court for the District of Columbia in August of 2023 (Thaler v. Perimutter, case No. 1:22-cv-01564) where it was determined that for copyright to subsist in a work, the creative effort must be performed by a human being.

The situation in Canada is not as well settled, although the CIPO is presently undertaking initiatives to investigate the protection of AI generated works and has released a consultation paper back in December of 2023.