If ChatGPT generates AI-generated code for your app, who does that code actually belong to?
In one of my previous AI and coding articles where I reviewed how ChatGPT can rewrite and improve your existing codeOne of the commenters, @pbug5612, had an interesting question:
Who owns the result code? What if it contains trade secrets – have you shared them all with Google or MS etc?
That’s a good question and there’s no easy answer. Over the past two weeks, I have reached out to lawyers and experts to try to get a definitive answer.
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There’s a lot to explain here, but a good starting point is the general theme of this discussion. It’s lawyer Collen Clark of the law firm Schmidt & Clark state:
Ultimately, until more definitive legal precedents are established, the legal implications of using AI-generated code remain complex and uncertain.
That doesn’t mean there’s a lack of opinions. In this article, I will discuss the meaning of copyright Use ChatGPT to write your code. in one Related articlesI discuss liability issues related to AI-generated code.
Who owns the code?
This is a possible 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. However, you used ChatGPT to write some modules and linked that resulting code into your application.
Continue to Part 2: If you use AI-generated code, what is your liability risk?
Who owns the code written by ChatGPT? Does including that code invalidate any ownership claims you have against the overall application?
lawyer Richard Santalesafounding member of SmartEdgeLaw Group based in Westport, Conn., focuses on technology transactions, data security and intellectual property matters. He points out that there are issues of contract law as well as copyright law — and they are handled differently.
From a contractual standpoint, Santalesa contends that most companies producing AI-generated code will “like all their other IP, treat their provided documents – including AI-generated code out – is their property.”
OpenAI (the company behind ChatGPT) does not claim ownership of the content created. Follow them terms of service“OpenAI hereby transfers to you all right, title and interest in and to the Output.”
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However, it’s clear that if you’re creating an app that uses AI-written code, you’ll need to carefully investigate who owns (or claims to own) what.
For a look at code ownership outside the US, ZDNET turned to Robert Piasetina Vancouver-based partner in the Technology Group at McMillan LLP, a Canadian business law firm. He said that ownership, in relation to works created by AI, remains an “unsettled area of law”.
That said, there has been work done to try to clarify the issue. In 2021, Canadian agency ISED (Innovation, Science and Economic Development Canada) has proposed three approaches to the question:
- Ownership belongs to the person who arranged to create the work.
- Ownership and copyright only apply to human-created works, and therefore the resulting code will not qualify for copyright protection.
- A new set of “authorless” rights should be created for AI-generated works.
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“Like Canada, there is no English law that directly regulates the design, development and use of AI systems,” said Piasentin, who was also called to the bar in England and Wales. However, the UK is one of the first countries in the world to clearly define who can be the author of a computer-generated work.”
He explains: “Under the UK Copyright Designs and Patents Act, for computer-generated works, the author of the work is the person who makes the arrangements necessary to create the work and is the first owner of any copyright in that work.”
Piasenten says there may already be some case law precedent in the UK, based not on AI but on video game litigation. A case before the Supreme Court (roughly similar to the United States Supreme Court) established that images created in video games are the property of the game developers and not of the players – – even though players have manipulated the game to create a unique arrangement of game assets on the screen.
Because the player had not “made the necessary arrangements to create those images”, the court ruled in favor of the developer.
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Ownership of AI-generated code could be similar in that “the person who makes the necessary arrangements for the AI-generated work – that is, the developer of the AI-generated work – may be the author of the work ”, Piasenten noted. That doesn’t necessarily rule out the person writing the prompt as the author.
Notably, it also excludes the unknown (and possibly unidentifiable) author who took the training data as the author of the AI-generated code.
Essentially, until there is more case law, the issue remains murky.
What about copyright?
Let’s touch on the difference between ownership and copyright. Ownership is a de facto power that determines who has control over a program’s source code and who has the right to modify, distribute, and control the code base. Copyright is a broader legal right granted to the creator of an original work and is essential for controlling who can use or copy the work.
If you think of litigation as a battle, Santalesa describes copyright as “an arrow in the legal vortex.” The idea is that copyright claims provide an additional claim, “over and above any other claims, such as breach of contract, breach of confidentiality, misappropriation of intellectual property, etc”
He added that the strength of the claim hinges on willful infringement, which can even be a challenge to determine when it comes to AI-based code.
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Then there’s the issue of what can be considered a work of authorship — in other words, something that can be copyrighted. According to A summary of the practices of the United States Copyright OfficeThird version, to be considered “a work of ‘copyright’, the work must be created by a human being…Works that do not meet this requirement are not copyrighted.”
Additionally, the Brief notes that the U.S. Copyright Office “shall not register works created by nature, animals, or plants. Likewise, the Office cannot register a work that is believed to be created by gods or the supernatural.”
While the Copyright Office doesn’t specifically say whether AI-generated works are copyrighted, it’s likely that the block of code you had ChatGPT write for you is not copyrighted.
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Piasenten said this also applies in Canada. Regulations specifying the “life of the author” and requiring the author to be a resident of a certain country imply a living human being.
Piasenten notes that, in CCH Canada Ltd. v Law Society of Upper Canada, The Supreme Court of Canada found that the original work arose from “the exercise of skill and judgment” and could not be a “purely mechanical exercise”.
Messy for programmers
Let’s wrap up this discussion with some thoughts from Sean O’Brien, lecturer on cybersecurity at Yale Law School and founder of Yale Privacy Lab. Taking us from analogy and speculation to actual rulings, O’Brien points to some of the US Copyright Office’s actions on the creation of AI.
“The United States Copyright Office concluded this year that a graphic novel with images generated by AI software, Midjourney, constituted a copyrighted work because the entire work included significant contributions by human authors, such as human-generated text and layout,” O’Brien said. “However, these individual images themselves are not copyrighted.”
If this ruling were applied to software, the overall application would be copyrightable, but the AI-generated processes would not be subject to copyright. Among other things, this requires programmers to label which code was generated by the AI so that the rest of the work can be copyrighted.
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There are also some messy licensing issues. O’Brian points out that ChatGPT “failed to provide copyright information accurately, specifically refusing to place free and open source licenses, such as the GNU General Public License, on the code.”
However, he said: “It has been proven that GPL code can be repeated verbatim by ChatGPT, creating a mess of license violations. Microsoft and GitHub continue to integrate such OpenAI-based systems into code authoring platforms used by millions of people, and that can muddy the waters beyond recognition.”
What does it all mean?
We haven’t even touched on liability and other legal issues you’ll want Read about Part II. However, there are some clear conclusions here.
First, this is uncharted territory. Even lawyers say there isn’t enough precedent to be sure what it is. I should point out that in my discussions with various attorneys, they all strongly recommended seeking advice from a lawyer on these matters, but at the same time, they acknowledged that they do not there’s enough case law for anyone to have more than a rough clue as to how it’s done. everything will shake.
Second, it is likely that code written by AI cannot be owned or copyrighted in a way that provides legal protection.
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This opens up a huge can of worms because unless the code is rigorously documented, it will be difficult to protect what is copyrightable and what is not.
Let’s wrap this up with some more thoughts from Yale’s O’Brien, who believes that ChatGPT and similar software are relying on the concept of fair use. However, he said:
There has been no conclusive decision surrounding this fair use assertion, and a 2022 class action lawsuit called it “pure speculation” because no court has yet considered whether the use of miners Whether creating AI arising 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 that ends with the words “pure speculation”. And here we are.
Continue to Part 2: If you use AI-generated code, what is your liability risk?
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