A poem about intellectual property:
Intellectual property, a treasure so rare
A creation of the mind, beyond compare
It’s the fruit of our labor, our ideas and thoughts
A source of pride and joy, that we dearly sought
We pour our hearts and souls into every design
And protect our works, with copyright as our spine
For every invention, every brand and art
Intellectual property is the beating heart
It’s the engine of progress, the spark of innovation
A source of inspiration, for generations to come
So let us cherish it, and guard it with care
For intellectual property is our legacy to bear.
I am no Robert Frost or John Keats. I did not write this poem. But neither did any other human. The above poem was written by OpenAI’s ChatGPT, an artificial intelligence platform released to the public in early December 2022 based on generative artificial intelligence (AI). I simply asked the software to write a poem about intellectual property (IP). The platform can hold conversations with users through text, answer follow up questions, reject inappropriate requests and apparently, even write decent poetry.
Using deep learning and/or machine learning, generative AI generates new content based on certain inputs and algorithms. Initial applications include the creation of targeted marketing content, computer coding, and drug development. But the market for generative AI is seeing a surge of venture capital investment and companies are attempting to use generative AI in new ways.
Next generation technology typically has broader implications in the intellectual property ecosystem, and generative AI is no different. This summer, in Thaler v. Vidal, the Federal Circuit ruled the Patent Act requires that inventors must be natural persons.
As another example, in September 2022, the U.S. Copyright (USCO) office issued a registration for a graphic novel titled Zarya of the Dawn. The graphic novel was created by Kristina Kashtanocva, an artist and AI researcher, who used AI to generate image outputs based on text for the novel. However, in October, Kashtanova received notice that the copyright could be canceled and was asked to provide details regarding the process of creation and whether there was substantial human involvement. According to the USCO, it will not register works that are not authored by a human.
In early November 2022, a class action lawsuit was filed against Microsoft, GitHub, and OpenAI. According to the complaint, Plaintiffs and the class are owners of copyright interests. GitHub was founded as an open source code development platform. Allegedly, pursuant to certain license, agreements, developers published licensed materials on GitHub. Microsoft purchased GitHub in 2018. In July 2019, Microsoft allegedly invested a $1 billion in OpenAI’s platform and became exclusive licensee of OpenAI’s GPT-3 language model. GitHub and OpenAI launched an AI based product that assists software coders by filling in portions of missing code. This AI platform was allegedly trained on, at least in part, the GitHub code data. Plaintiffs claim they were stripped of attribution, copyright notice, and the license terms in violation of the rights under open source agreements with GitHub. Plaintiffs claim violation of the copyright act, open-source license violations, tortious interference, fraud, false designation, unjust enrichment, unfair competition, and breach of contract, amongst other claims.
Over the last year, Web3 and the metaverse have dominated IP headlines. However, generative AI is poised to become the new hot topic in 2023. IP practitioners should be aware of this technology and its broader implications in the IP community.