The recent explosion of artificial intelligence (AI) has brought about a shift in the dynamics of various sectors, including publishing.
As AI continues to evolve, it poses new and unique challenges to the traditional understanding and application of intellectual property (IP) law.
A groundbreaking US lawsuit, filed recently by authors Mona Awad and Paul Tremblay against OpenAI, the company behind the AI tool ChatGPT, brings these challenges into sharp focus and is a window into the future of AI’s involvement in IP litigation.
The lawsuit
In the complaint, which was presented to the United States District Court, Awad and Tremblay allege that their copyrighted works were unlawfully ‘ingested’ and ‘used to train’ ChatGPT, resulting in the AI generating ‘very accurate summaries’ of their novels.
This lawsuit is the first of its kind against ChatGPT concerning copyright infringement and is set to explore the uncertain ‘borders of the legality’ of actions within the AI space.
The authors’ lawyers, Joseph Saveri and Matthew Butterick, argue that OpenAI ‘unfairly’ profits from ‘stolen writing and ideas’ and calls for financial damages on behalf of all US-based authors whose works were allegedly used to train ChatGPT.
However, proving financial losses specifically due to ChatGPT’s training on copyrighted material may be difficult.
The IP law perspective
From a solicitor’s perspective, this case highlights how little regulation there is currently to cover legal challenges posed by AI, especially when it comes to IP law.
The current regulations around AI are inconsistent at best, as it struggles to keep pace with the constant and rapid technological advancements.
The lawsuit against OpenAI hinges on whether the courts view the use of copyrighted material in AI training as ‘fair use’ or ‘unauthorised copying.’
In the UK, the Government has been keen on promoting an exception to copyright that would allow the free use of copyrighted material for text and data mining, even for commercial purposes. However, this reform was stopped due to opposition from authors, publishers, and the music industry.
Combatting AI challenges
To combat these challenges, there are several steps that publishers and authors can take.
Firstly, they can actively engage in discussions about AI and copyright law, supporting the rights they are entitled to and pushing for legal reforms that address the problems that AI is causing and will inevitably cause in the future.
Secondly, they can take proactive measures to protect their works. For instance, The Society of Authors (SoA) recently published a list of ‘practical steps for members’ to ‘safeguard’ themselves and their work.
These steps could include registering copyrights, using digital rights management tools, and negotiating contracts that explicitly address AI usage.
Publishers and authors can also explore licensing agreements with AI companies.
As Saveri and Butterick note, AI will likely follow the path of digital music and TV, becoming based on licensed data with disclosed sources.
This approach could provide a win-win solution, allowing AI companies to legally use copyrighted material while compensating authors for their work.
The lawsuit against OpenAI is a watershed moment. It highlights the urgent need for legal reforms and measures by publishers and authors to protect their rights in the age of AI.
The emergence of AI is not a fad and will likely form a larger part of our culture, whether we like it or not. Legal challenges to problems posed by AI will no doubt increase, and while this issue is a complex one, it is best to contact an IP law professional for expert advice.
If you would like more information or advice on this intriguing and relatively new aspect of IP law, please contact us today.