Is Generative AI Generating Legal Challenges? | Ireland
In this Chambers Expert Focus podcast, William Fry’s technology consultant Barry Scannell discusses the copyright concerns surrounding the recent proliferation of AI-generated works.
Barry Scannell
Generative AI has exploded into the public consciousness in a massive way in the first months of 2023.
What Is Generative AI and Why Is Everybody Talking About it?
Generative AI is a very clever type of computer software that analyses vast amounts of data and on the basis of this data analysis is able to identify patterns then make predictions based on these patterns.
“AI can be used to predict which musical note would sound best, what brush stroke should come next in a piece of art, and what the next word should be in a sentence.”
The first truly powerful generative AI to capture the public imagination was Open AI – the brains behind the headline-grabbing chatbot Chat GPT and text-to-image generators DALL-E and DALL-E 2, which generate images based on text prompts entered by users. Chat GPT conjures up an appropriate sequence of words in response to questions or instructions from humans.
“People tell their kids to focus on the creative side because the one thing that makes us uniquely human is creativity and computers will never be able to replace that. Well, it turns out that the first thing AI became really good at apart from image recognition was the creative stuff.”
While trickier things like autonomous driving might take another 20 or 30 years to fully realise, AI is already being used to generate content – and opening up many cans of worms in the process.
“A leading literature magazine has actually put a pause on all submissions because so many of the submissions were generated by AI. Somebody had just typed in ‘Generate a science fiction story about X,Y,Z’ and it did it.”
The possibilities are endless, with universities reporting that students are passing courses by using AI chatbots to pen their essays for them.
What Are the Legal Implications of Generative AI?
The primary legal implications surrounding generative AI concern copyright and IP. When someone composes a text prompt, it raises the question of whether this alone is creative enough to warrant protection by copyright – or whether the machine just created the image?
“The real crux of the issue is that you cannot copyright ideas; you can only copyright ideas fixed in a tangible medium. So is the AI creating or is the AI only a tool that is fixing your idea in a tangible medium, meaning that your body of work can be copyrighted?”
Not everyone agrees with Barry’s stance that, depending on the situation, a text prompter can be creative enough to warrant copyright protection. The US Copyright Office recently ruled that AI output is far too unpredictable for anyone to claim to be the human author of such work.
If there is no human author then there are no royalties to be paid or rights to clear, thereby creating an incentive. Recording studios or record labels, for example, might pursue AI tracks because there is no need to worry about securing the rights. Barry goes on to highlight a number of hypothetical scenarios, as well as the recent spate of lawsuits unfolding at a rapid pace around related matters.
“Companies need to be really alive to the kind of issues that are going on to make sure that theyre not opening themselves up to any risks but also to ensure that their IP is adequately protected.”
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