Articles > Intellectual Property

ChatGPT and Intellectual Property

September 5, 2023   Anna RoditisPhilip Evangelou

When ChatGPT (Chat Generative Pre-Trained Transformer) was introduced in November 2022, it took the world by storm. But as more and more people have begun using ChatGPT, new questions have arisen as to how we should be using ChatGPT’s content and whether we have any proprietary interest in the content it produces for us. 

In a nutshell, intellectual property (IP) is concerned with the ownership and protection of creative works and inventions that its creators conceive. 

Can you patent, copyright or trademark the content ChatGPT generates for you? Who owns the content produced by ChatGPT? How should you be using the content generated by ChatGPT?

To begin answering these questions, we went to the source and asked ChatGPT who owns the content it produces. It gave us this response: ‘The content generated by ChatGPT is the property of OpenAI, the company that developed and trained the language model. As an AI language model, ChatGPT is designed to generate responses based on its programming and the data it has been trained on, and it does not retain any memory of previous conversations. Therefore, any responses generated by ChatGPT do not belong to any individual user, but rather to OpenAI.’

Who owns the content produced by ChatGPT?

From ChatGPT’s response, it is evident that at least the AI and the company that created it believe themselves to be the owners of the content ChatGPT produces.

In the US, courts have been reluctant to consider the work created by AI as qualifying for copyright protection since it does not include the creative input of a human. It is likely that work generated by ChatGPT either belongs to the public, the owners of ChatGPT or, arguably, the owners of the content ChatGPT used in coming up with its response. Importantly, this means that it is highly unlikely that users of ChatGPT have any rights to the content the AI bot produces.

IP in Australia ‘refers to creations of the mind’. IP law is about protecting your new and creative ideas. It is not about protecting a new and creative idea that happened to come from an AI bot. Similarly, IP under the law of the US must be from the ‘original and creative authorship’ of a human author. In other words, to own and protect an idea, invention, logo, design etc, it needs to come from your own creative output. 

The content ChatGPT generates does not come from our own original and creative thinking and is not our own idea. Nevertheless, ChatGPT can be used as a step to generating new and creative ideas.

How should you use ChatGPT?

It is important to note that solely relying on ChatGPT to write your essay or develop articles for you to copy and paste onto your website is not the way it should be used. This is because the content it produces does not belong to us. ChatGPT generates its content based on all the information available to it on the internet. That includes the creative work and unique ideas of others. ChatGPT does not generate new information but relays the knowledge and ideas of others in a condensed format. 

As a consequence, if you are using content generated by ChatGPT (though this issue is still being deliberated), it is good practice to cite that the content you are using came from ChatGPT. This has been considered acceptable and even preferable – so far – by certain universities, courts and workplaces.

It would be impossible and counterintuitive to say ‘Never use ChatGPT’. The truth is that ChatGPT is an ingenious and useful tool to use as a stepping stone for further research, to get background knowledge on a broad topic or issue, brainstorm ideas (including essay topics and arguments), generate chants for team sports, or for fun.

AI is the future and we have to embrace it.

Disadvantages of ChatGPT as a reservoir of information

As with all AI bots, there are disadvantages to using ChatGPT. 

ChatGPT is not perfect and, at the moment, it lacks the creativity that distinguishes AI from humanity. It does not have the emotional depth of a human.

Furthermore, even though it is just a computer, ChatGPT has implicit bias due to the fact that it is not able to form its own opinions but instead relays information and the prejudices of the work of others on the internet. It is important not to trust everything it tells you. 

ChatGPT also does not reference or recognise its sources and the ideas it uses. That means that you are not able to reference the original authors that ChatGPT took its response from. 

Finally, ChatGPT’s accuracy is not always perfect. Its knowledge is only as good as what can be found on the internet and not everything on the internet is factual or true. 

Take-Home Message

ChatGPT is a tool that can be used to generate ideas and content that can be researched further and that gives a good background understanding of certain topics. However, the content it creates is not unique; it has been generated using all the relevant – and irrelevant – content it can find on the internet. Whatever ChatGPT produces is not the IP of the user and we have no legal right to it. Nevertheless, it is likely that you can trademark your own creative and unique idea, even if you have used ChatGPT as a stepping stone to help you come up with it – just be careful. Overall, it is important to use ChatGPT critically, carefully and alongside (many) other sources.

If you have any questions regarding your Intellectual Property, how you can protect it and exercise your rights, do not hesitate to contact OpenLegal. 

Photo by Priscilla Du Preez on Unsplash

About Anna Roditis

Avatar photoAnna is a Paralegal at OpenLegal and is currently completing her Bachelor of Laws / Arts at the University of New South Wales.

About Philip Evangelou

phillipPhil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.