Who owns the code? If ChatGPT’s AI Helps You Write Your App, Is It Still Yours?

Last month, I wrote an article on how ChatGPT can rewrite and improve your existing code. One of the commenters, @pbug5612, had an interesting question:

Who owns the resulting code? What if it contains trade secrets – have you shared it with Google or MS etc.?

It’s a good question and one that doesn’t have an easy answer. Over the past two weeks, I’ve reached out to lawyers and experts to try to get definitive answers.

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There’s a lot to unpack here, but a good start is the overall theme of this discussion. as law firm attorney Colleen Clarke schmidt and clark says:

Ultimately, until more definitive legal precedents are established, the legal implications of using AI-generated code remain complex and uncertain.

But that doesn’t mean there’s a lack of opinion. Today, I’ll be discussing the copyright implications of using ChatGPT to write your code. Tomorrow, I’ll discuss liability issues related to AI-generated code.

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Who owns the code?

Here’s a possible scenario. You are working on an application. Most of that application is your direct work. You’ve defined the UI, designed the business logic, and written most of the code. But you’ve used ChatGPT to write some modules, and linked the resulting code into your app.

Who owns the code written by ChatGPT? And does the inclusion of that code invalidate any ownership claim you have on the overall application?

Representative richard santalesais a founding member of Smartejlaw Group Based in Westport, Connecticut, the firm focuses on technology transactions, data security and intellectual property matters. He points out that there are issues with contract law as well as copyright law – and they are treated differently.

From a contractual perspective, Santalesa argues that most companies that produce AI-generated code, “deem the content they provide – along with all their other IP, including the AI-generated code – as their property.” does.”

OpenAI (the company behind ChatGPT) does not claim ownership of the generated content. According to him terms of Service“OpenAI hereby assigns to you all right, title and interest in and to the Output.”

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Clearly, though, if you’re building an application that uses code written by AI, you need to carefully investigate who owns (or claims to have) what.

For a look at code ownership outside the US, Polygon turned to ZDNET Robert Piacentin, Vancouver-based partner in the Technology Group at Macmillan LLP, a Canadian business law firm. He says that ownership, as it pertains to AI-generated works, is still “a shaky area of ​​the law”.

That said, there has been work done to try to clarify the issue. In 2021, the Canadian agency ised (Innovation, Science and Economic Development Canada) recommended three approaches to the question:

1. Ownership belongs to the person who arranged for the creation of the work;
2. Ownership and copyright only apply to works created by humans, and thus, the resulting code would not be eligible for copyright protection; Or
3. A new “authorless” set of rights should be created for AI-generated works.

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Piacentin, who was also called to the Bar in England and Wales, says, “Like Canada, there is no English law that directly regulates the design, development and use of AI systems. However, the UK was one of the first countries to To clearly define to the world who can be the author of a computer-generated work.”

According to Piacentin, “Under the UK Copyright Designs and Patents Act, in relation to a computer generated work, the author of the work is the person who made the arrangements necessary to create the work and is the first owner of any copyright therein.”

Piassenten says there may already be some UK case law based not on AI but on video game litigation. A case before the High Court (roughly analogous to the US Supreme Court) determined that images built into video games were the property of the game developer, not the player – even though the player had manipulated the game to create a unique arrangement of the game. Have you done property on screen.

Because the player “had not made the necessary arrangements for the creation of those images,” the court ruled in favor of the developer.

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Ownership of AI-generated code may be equitable, in that, notes Piacenten, “the person who made the necessary arrangements for the AI-generated work – that is, the developer of the generative AI – may be the author of the work”. This doesn’t necessarily rule out the early-writer as the author.

In particular, it does not rule out an unspecified (and possibly even unaware) author of the AI-generated code receiving the training data as author.

Basically, the issue is unclear until there is much case law.

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What about copyright?

Let’s touch on the difference between ownership and copyright. Ownership is a practical force that determines who has control over a program’s source code and who has the right to modify, distribute, and control the codebase. Copyright is a broad legal right granted to the creators of original works, and is essential to control who can use or copy the work.

If you look at litigation as a battle, Santalesa describes copyright as “an arrow in a legal quiver.” The idea is that copyright claims provide an additional claim, “above and beyond any other claims – such as breach of contract, breach of privacy, misuse of IP rights, etc.” They also say that the strength of the claim hinges on willful infringement, which can also be a challenge to define when it comes to AI-based code.

Then there’s the issue of what might qualify as a work of authorship, in other words, something that can be copyrighted. According to US Copyright Office Compendium of PracticesThird Edition, “To qualify as a work of ‘authorship’ a work must be created by a human being … Works that do not meet this requirement are not copyrightable.”

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Additionally, the archive notes, “The US Copyright Office will not register works created by nature, animals, or plants. Likewise, the Office cannot register a work allegedly created by divine or supernatural beings.” While the Copyright Office doesn’t specifically say whether an AI-generated work is copyrightable, it’s possible that that block of code that ChatGPT wrote for you isn’t copyrightable.

Piacenten says the same applies in Canada. Provisions that refer to the “life of the author” and require that the author be a resident of a certain country imply a living human being. Piacenten tells us that the Supreme Court of Canada found CCH Canada Ltd v Law Society of Upper Canada That basic function is derived from “the exercise of skill and judgement”, and cannot be a “purely mechanical exercise”.

messy for coders

We conclude this part of our discussion with some thoughts from Sean O’Brien, lecturer in cyber security at Yale Law School and founder of cyber security. Yale Privacy Lab, Taking us from analogies and speculation to actual rulings, O’Brien points to some of the US Copyright Office’s actions on AI-generation.

According to O’Brien, “The US Copyright Office concluded this year that a graphic novel with images generated by the AI ​​software Midjourney constitutes a copyrightable work because the work involves a significant contribution by a human author, such as a human- Author text and layout. However, the individual images themselves are not subject to copyright.”

If this rule applied to software, the application as a whole would be copyrightable, but AI-generated routines would not be subject to copyright. Among other things, it requires programmers to label which code is generated by AI so that the rest of the work can be copyrighted.

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There are also some pesky licensing issues. O’Brien points out that ChatGPT “may not properly provide copyright information, specifically refusing to grant free and open source licenses such as the GNU General Public License on the code.”

Nevertheless, he says, “It has already been proven that GPL’d code can be replicated verbatim by ChatGPT, leading to license infringement violations. Microsoft and GitHub support such OpenAI-based systems for millions of years.” The code people use continues to integrate into authoring platforms, and this may be muddying the waters beyond recognition.”

What does all this mean?

We haven’t even touched on liability and other legal issues, so stay tuned for part two tomorrow. However there are some clear conclusions here.

First: This is somewhat uncharted territory. Even lawyers are saying there isn’t enough precedent to know for sure what’s what. I should point out that in my discussions with various attorneys, they all strongly recommended seeking an attorney for advice on these matters, but admitted in the same breath that there was not enough case law for either That someone had more than a clue how it was all going to shake things up.

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 lot of can of worms because unless the code is strictly documented it will be very difficult to defend what is and is not subject to copyright.

Let’s end this with some more thoughts from Yale’s O’Brien, who believes that ChatGPT and similar software rest on the concept of fair use. However, he states:

No conclusive decisions have been made around this assertion of fair use, and a 2022 class action called it “pure speculation” because no court has yet considered whether AI generated from public data Whether the use of training sets is a fair use.

Pure speculation. When considering whether you own your code and can copyright it, you don’t want the legal analysis to end with the words “pure speculation”. And yet, here we are.

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