Copyright is proving to be the battleground on technological and which the technological and cultural shift around Generative Artificial Intelligence (GenAl) is being fought. At present, there is no clear international consensus on what, or to what extent, content produced entirely (or largely) by GenAl tools like Chat- GPT. Midjourney and DALL-E 2 is protectable as a matter of copyright, or at all. This uncertainty creates risks for those looking to acquire or license rights in content, including as produced by employees and independent contractors. To reduce those risks, those who produce, acquire, or licence content would be well advised to consider contract terms that speak to the scope of permitted GenAl use, and disclosures surrounding such use when made.
Transparency related to the nature and extent of GenAl's contribution to a finished project can be a key contractual consideration. For example, in the United States, at this time, the Copyright Office has taken the position that protection can accrue only to the human author, and only for those portions of a work which have attributable human input rising to the level of "originality", but not those elements produced by GenAl, which position has thus far been blessed by the Courts (appeals are pending).
Emerging differences between jurisdictions in protection of content created using GenAl likewise highlights the importance of tracking and retaining details about how GenAl was used to create the finished content. For example, in December 2023, a court in China ruled the nearly 300 prompts input by a human justified extending copyright protection to the resulting GenAl output. Contrast this with the current approach in the U.S. discussed above. In Canada, GenAl tools have been listed as the "author" of works recorded on the Canadian Copyright Register. However, Canada does not conduct substantive examination of copyright applications and the validity of such registrations has not yet been tested.
At the same time, many jurisdictions are actively pursuing specific legislation governing Al use and that touch on copyright. In Canada, the Federal Government held a "Consultation on Copyright in the Age of Generative Artificial Intelligence" ending January 2024. In March 2024, the European Union Parliament passed the Artificial Intelligence Act. Recital 105 is, in part, that providers of general purpose Al models need to obtain authorization from rights holders who have exercised an "opt out" option before works can be subject to text and data mining.
In the absence of legislative or judicial guidance, contracts (including service contracts, assignments. and licenses) are proving to be a tool that can help create a measure of certainty around treatment of content produced through GenAl, at least as between parties. The flexibility provided by contracts permits parties to consider the scope and degree of uses of GenAl permitted under the contract, and whether to any representations, warranties, guarantees, disclosures, or indemnities relating to such use should be part of an agreement.
"Future proofing" a business is a never-ending task. In this age of rapid technological change, one of the most important actions rights holders (and prospective rights holders) can take now to position themselves well is to review existing contracts and consider whether the existing terms sufficiently cover the rights to be created, transferred or licensed when GenAl is used to produce content or complete a task.
Originally published in the 5th edition of Legal Industry Reviews.
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