Last month I wrote an article about how ChatGPT can rewrite and improve your existing code. One of the commenters, @pbug5612, had an interesting question:
Who owns the resulting code? What if it contains company secrets – did you share everything with Google or MS, etc.?
It’s a good question and one that doesn’t have an easy answer. Over the last couple of weeks, I’ve been reaching out to lawyers and experts to try and get a definitive answer.
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There’s a lot to uncover here, but a good starting point is the general theme of this discussion. As attorney Collen Clark of the law firm Schmidt & Clark puts it:
Ultimately, until more definitive legal precedents are established, the legal implications of using AI-generated code remain complex and uncertain.
But that’s not to say there’s a shortage of opinions. Today, I’m going to talk about the copyright implications of using ChatGPT to write your code. Tomorrow, I’m going to talk about liability issues related to Ai-generated code.
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Who owns the code?
Here is a likely scenario. You are working on an application. Most of that application is your direct work. You’ve defined the user interface, created the business logic, and written most of the code. But you used ChatGPT to write some modules and linked the resulting code to your app.
Who owns the code written by ChatGPT? And does the inclusion of that code invalidate any ownership claims you have on the overall question?
Lawyer Riccardo Santalesa, a founding member of the Westport, Connecticut-based SmartEdgeLaw group, focuses on technology transactions, data security, and intellectual property issues. He points out that there are contract law issues as well as copyright – and they are treated differently.
From a contractual standpoint, Santalesa argues that most companies that produce AI-generated code, “as with all of their other IP, will treat the materials you provide, including the AI-generated code, as their property.” “.
OpenAI (the company behind ChatGPT) does not claim ownership of the generated content. According to their terms of service, “OpenAI hereby assigns to you all its right, title and interest in and to the Output.”
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Clearly though, if you’re building an application that uses code written by an AI, you’ll need to investigate carefully who owns (or claims to own) what.
For insight into ownership of the code outside the United States, ZDNET turned to Robert Piasentin, a Vancouver-based partner in the Technology Group of McMillan LLP, a Canadian law firm. He says that ownership, with regards to AI-generated works, is still “an unresolved area of the law.”
That said, some work has been done to try to clarify this issue. In 2021, the Canadian agency ISED (Innovation, Science and Economic Development Canada) recommended three approaches to the issue:
- The property belongs to whoever ordered the construction of the work;
- Ownership and copyright apply only to works produced by humans and, therefore, the resulting code would not be eligible for copyright protection; OR
- A new set of “authorless” rights should be created for AI-generated works.
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Piasentin, who has also been called to the bar in England and Wales, says: ‘Much like Canada, there is no English legislation that directly regulates the design, development and use of artificial intelligence systems. However, the UK Kingdom is among the first countries in the world to expressly define who can be the author of a computer-generated work.”
According to Piasentin, “Under the UK Copyright Designs and Patents Act, with respect to computer generated work, the author of the work is the person who made the necessary arrangements to create the work and is the first owner of any copyright in it.”
Piasenten says there may already be a case law precedent in the UK, based not on AI but on video game litigation. A case before the High Court (roughly analogous to the US Supreme Court) ruled that the images produced in a video game were the property of the game developer, not the player, even if the player manipulated the game to produce a unique layout of the game. resources on the screen.
As the player had not “made the necessary arrangements for the creation of those images”, the court ruled in favor of the developer.
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The ownership of the AI-generated code can be similar, in that, Piasenten notes, “The person who has made the necessary arrangements for the AI-generated work, i.e. the developer of the generative AI, can be the author of the work .” This does not necessarily rule out the prompt writer as an author.
Notably, it also doesn’t rule out the unspecified (and possibly unknowable) author who provided the training data as the author of the AI-generated code.
Basically, until there is much more case law, the matter is obscure.
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What about copyright?
Let’s touch on the difference between ownership and copyright. Ownership is a practical power that determines who has control over a program’s source code and who has the authority to modify, distribute, and control the code base. Copyright is a broader legal right granted to creators of original works and is essential for controlling who can use or copy the work.
If you look at litigation as something like a battle, Santalesa describes copyright as “an arrow in the legal quiver.” The idea is that copyright claims provide an additional claim, “above and beyond any other claim, such as breach of contract, breach of confidentiality, misappropriation of intellectual property rights, etc.” He also says that the strength of the claim depends on the intentional violation, which can be a challenge even to define when dealing with AI-based code.
Then there’s the issue of what qualifies as an author’s work, in other words, something that can be copyrighted. According to the Compendium of the US Copyright Office Practices, Third Edition, “To qualify as ‘authorship’ a work must be created by a human being. Works that do not meet this requirement are not protected by copyright.”
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Further, the Compendium notes, “The United States Copyright Office will not register works produced by nature, animals or plants. Likewise, the Office cannot register a work allegedly created by divine or supernatural beings.” While the Copyright Office doesn’t specifically say whether or not AI-created work is copyrighted, it’s likely that that block of code you had ChatGPT write for you isn’t copyrighted.
Piasenten says this also applies to Canada. Provisions stating “the life of the author” and the requirement that the author be a resident of a particular country imply a living human being. Piasenten tells us that the Supreme Court of Canada found itself in CCH Canada Ltd. v. Law Society of Upper Canada that original work comes from “an exercise in skill and judgment” and cannot be “a purely rote exercise”.
Messy for programmers
We conclude this part of our discussion with some thoughts from Sean O’Brien, professor of computer security at Yale Law School and founder of the Yale Privacy Lab. Taking us from analogies and speculation to actual rulings, O’Brien points to some actions of US Copyright Office on AI generation.
According to O’Brien, “The US Copyright Office concluded this year that a graphic novel featuring images generated by the Midjourney artificial intelligence software constituted a copyrighted work because the work as a whole contained significant contributions by a human author.” , such as human-written text and layout. However, isolated images are not subject to copyright.”
If this ruling were applied to software, the entire application would be copyrighted, but the AI-generated routines would not be copyrighted. Among other things, this requires programmers to label which code an AI generates in order to be able to protect the rest of the work.
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There are also some messy licensing issues. O’Brian points out that ChatGPT “cannot properly provide copyright information, specifically refusing to code for free and open source licenses such as the GNU General Public License.”
Yet, he says, “GPL-protected code has already been shown to be verbatim repeatable by ChatGPT, creating a license violation mess. Microsoft and GitHub continue to integrate such OpenAI-based systems into the coding platforms used by millions of people, and that could muddy the waters beyond recognition.”
What does all this mean?
We haven’t even touched on liability and other legal issues, so stay tuned for part two tomorrow. There are some clear conclusions here, though.
First: This is somewhat uncharted territory. Even the lawyers say there isn’t enough precedent to be sure what’s what. I must point out that in my discussions with the various lawyers, they have all strongly recommended seeking an attorney for advice on these matters, but at the same time they have recognized that there was not enough case law for anyone to have more than a vague idea of how it would all fall apart.
Second: Code written by an AI likely cannot be owned or copyrighted in a way that provides legal protection.
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This opens up a huge jar of worms because unless the code is rigorously documented it will be very difficult to defend what is copyrighted and what is not.
We conclude with some other thoughts from O’Brien of Yale, who believes that ChatGPT and similar software are based on the concept of fair use. However, he says:
There have been no conclusive decisions on this fair use claim, and a 2022 class action lawsuit called it “pure speculation” because no court has yet considered whether using AI training sets derived from public data constitutes fair use.
Pure speculation. When considering whether you own and can copyright your code, you don’t want a legal analysis to end up with the words “pure speculation.” Yet here we are.
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