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AI vs Copyright: Who Owns the Rights To ChatGPT Content

Yu Jian Ong
Civil litigator, corporate & commercial lawyer and business legal adviser

Unless you’ve been living under a rock, you’ve surely heard of ChatGPT. You’ve probably used ChatGPT for work, school, research or content creation. I’m pretty certain that 86.7% (I used my own AI called GuesstimationGPT to derive this figure) of the articles you read online today are generated by ChatGPT.

ChatGPT is but one of the many AI models sweeping the world towards the future. Originally just a language model that can generate text based on inputs received and learned patterns, it has evolved to become a very powerful tool in content creation; it can generate songs, articles, poems, scripts, recipes, short stories and even detailed workout and diet plans with just a few clicks.

The sky(net) seems to be the limit for ChatGPT, and many other types of AI. As they continue to advance, questions inevitably arise as to the legal status of the content it creates.

For example, who is the owner of a kickass legal article peppered with wit, information and persuasive style generated by ChatGPT? What happens when 2 people from 2 different parts of the world coincidentally input the exact same detailed instructions to ChatGPT, and as a result, ChatGPT creates the exact same type of article for both of them? Can either one sue one another for copyright infringement? Or can ChatGPT, a machine essentially, be considered a creative author?

In this article, I explore the legal nuances of copyright protection in Malaysia and determine if ChatGPT’s output can be owned by the person who instructed it.

In Malaysia, copyright protection is governed under the Copyright Act 1987. Section 7 of the Act grants copyright protection to “original works” which are defined as literary works, musical works, artistic works, films, sound recordings, and broadcasts. In order for a work to be considered “original”, it must be the result of independent effort and not be copied from another work.

Can text generated by ChatGPT be subject to copyright protection, then?

I don’t think so (until there is a test case that settles the issue, let’s use the safe “don’t think so” rather than a straight “no”).

This is because text generated by ChatGPT is not created by a human author, but by an algorithm. Therefore, it may not be considered an “original work” under Malaysian copyright law. It was not created by someone, but generated by a something. And that something did not create the work per se based on its own effort or creativity. Rather, it was the input given by someone that allowed ChatGPT to generate the final form of the content. TLDR: works generated by ChatGPT would most likely not be capable of copyright protection.

However, and this is where it gets interesting, the person who instructed ChatGPT to generate the text may be able to claim copyright protection over the input they provided.

For example, if the person provided a detailed outline, a set of instructions, or a specific prompt for ChatGPT to follow, they may be able to claim copyright over that material that led to ChatGPT churning out the content. This is because the input they provided is the result of their independent effort, and not copied from another work. They may even argue that the quality or popularity of a content generated by ChatGPT due to their unique and creative way of prompting it. Think of it as them writing “code” that leads to works being generated by ChatGPT. If such an argument is accepted, it would mean copyright vests with the owner of the “code” that made ChatGPT generate such answers, and not the generated content itself.

However, it’s important to note that the copyright protection of such “code” is not automatic, and it must meet the requirements for originality set out under Section 7 of the Copyright Act 1987. The input must be the result of independent effort and must not be copied or derived from another work.

It is also important to note that copyright law is territorial and that the scope and protection afforded by copyright law can differ depending on the jurisdiction. Thus, we find it apt to put in a standard disclaimer and qualifier here by saying it is advisable to consult a qualified lawyer with intellectual property expertise in Malaysia for specific legal advice regarding copyright protection over text generated by ChatGPT before you start issuing Cease & Desist letters out to others who have copied your “code” given to ChatGPT.

It would be interesting to see a test case on this, and gauge how ready our laws are to evolve with the changing landscape of our world that is being terraformed at amazing speeds by artificial intelligence.

Note: this article was not written using ChatGPT. I am (still) old school in that way (for now).

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