ChatGPT - is 2023 the year of generative AI technology?
OpenAI's ChatGPT has triggered a hype around AI technology. For weeks now, the dialogue-based language model has also been known to the general public, because currently you can try out ChatGPT 's capabilities for free at any time. On the internet and social media channels, you can find a multitude of examples in which ChatGPT independently drafts poems and scripts, explains quantum technology or macroeconomics in an understandable way and also writes smaller programming codes.
It is a chatbot, a text generator that can answer queries of all kinds and do so with surprisingly plausible answers. The general euphoria about ChatGPT is understandable, because the generated texts are superior, in some cases far superior, to previously known digital assistants such as Alexa or Siri.
In 2015, the OpenAI project was founded, originally with the aim of developing an AI with benefits for all. Since 2019, this has become a company in which Microsoft invested, among others. The chatbot was trained with content from the internet and additional parameters such as feedback from real people regarding the quality of the answers and a differentiated conception of the chatbot's "memory". Machine learning in conjunction with self-learning algorithms (artificial intelligence, AI) enable ChatGPT to constantly increase knowledge and independently optimise answers. The version GPT-4 is already developed, it is announced that ChatGPT-4 will be released in 2023.
Besides the fascination of what AI-generated technology is currently already capable of, ChatGPT also invites a brief consideration in terms of IP rights (intellectual property). Because the key to AI-generated texts, art or even inventions is the training of the AI, the learning phase.
Copyrights on texts and images
If AI technology is taught with texts or images, copyrights can easily be infringed by feeding them in. And the output of the AI technology, such as AI-generated images or the texts generated by ChatGPT, can also infringe copyrights. Much attention was paid in this context to the recent decision of the leading image databases Getty Images and Shutterstock to stop accepting and offering AI-generated images with immediate effect.
With regard to AI-generated texts, legal certainty is inconsistent. In Germany, there is no copyright on AI-generated texts, but in the United Kingdom (UK), for example, there is.
In the UK, this is protected by § 9 (3) Copyright Act as follows:
“In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
Getty Images files lawsuit in UK over training data for AI!
Getty Images even files lawsuit in UK over training data for AI Stable Diffusion. Getty's allegation is infringement of IP rights and copyright infringement by protected images used to train the AI without Getty's consent, as Getty Images made public on 17 January 2022. According to yesterday's press release from Getty Images, millions of images and the associated metadata owned or represented by Getty Images are allegedly involved.
On 16 January 2023, this lawsuit was filed by Getty in the High Court in England and Wales against Stability AI, the developers of the AI Stable Diffusion.
AI technology in European patent law
Patent law is also interesting in context of AI. For on the one hand, in relation to AI-generated technology, modern jurisprudence is required in some questions. On the other hand, there are already landmark decisions in relation to AI technology, which we briefly summarise here.
The naming of the inventor in the case of an AI invention
The German Federal Patent Court issued a leading decision in November 2021 with two important principles for computer-generated inventions:
(i) An invention made by an AI is in principle patentable.
ii) Only a natural person can be an inventor, never a machine or an AI.
Dr. Malte Köllner, founder and partner of our law firm Köllner & Partner, represented the plaintiff, Stephen L. Thaler, in these proceedings. Please read our blog post on this case here.
Skilled person in an AI based invention
In 2021, another important writing related to AI and IP law was added, the AIPPI resolution No. Q276-RES-2021 (AIPPI is a global non-profit organization for the development of IP rights and IP jurisprudence). This AIPPI resolution deals with the question of who can be a skilled person in context of an AI-generated invention. Accordingly, the hypothetical computer should not be considered a person skilled in the art, but the person skilled in the art should remain still hypothetical, but a natural person even in an AI-generated invention.
2023 - the year of generative AI technology?
Whether 2023 will be the year of generative AI technology is still open. What is clear, however, is that a patent application for an AI invention requires experience and strategic argumentation. This is what our law firm Köllner & Partner offers with expertise.
Please contact us without any obligation by phone at +49 (0)69 69 59 60-0 or info@kollner.eu.
