Artificial intelligence: can AI tools infringe copyright?

ChatGPT, Copilot, Dall-E: artificial intelligence-based programs can be useful, but from a legal perspective, they raise new questions. Can AI tools infringe copyright? Sabrina Konrad, Deputy Head of Copyright and Related Rights Legal Services at the Swiss Federal Institute of Intellectual Property (IPI), shares her opinion.

Sabrina Konrad, Deputy Head of Copyright and Related Rights Legal Services at the Swiss Federal Institute of Intellectual Property. Copyright: IPI

Editing IPI: Is ChatGPT’s output (text) protected by copyright?

Sabrina Konrad: In Switzerland, copyright protection only applies to works created by humans. Now if someone uses ChatGPT merely as a tool, but performs the creative effort themselves, the output could be protected by copyright. You could compare it to a photographer using a camera. However, if the creative effort is performed by ChatGPT, then it has not come from a human and therefore cannot be protected by copyright as such. But there is something else to consider: if ChatGPT uses copyright-protected content from other works in its output, then these parts of the output are still protected.


If the output is not protected by copyright, am I free to use it?

From a copyright law standpoint, you are. At least as long as ChatGPT has not used any copyright-protected content in its output. Otherwise, you would need the permission of the author or the law to use that content. It’s also important to check the terms of use or T&Cs. These may prohibit the commercial use of the output. The terms can also vary from country to country.


Can output generated by ChatGPT infringe copyright?

Things can get complicated if ChatGPT uses content from a work. If this content is still recognisable in ChatGPT’s output, the author’s permission is generally required. Alternatively, if the source is indicated, a quotation could be used. Essentially, however, there is a real risk of copyright infringement. Anyone who uses copyright-infringing output from ChatGPT is also committing copyright infringement themselves. The infringement still applies.


Is the use of content to train ChatGPT (machine learning) subject to copyright law?

There’s no consensus on that yet. Some argue that using content to train AI is not subject to copyright law because it does not ultimately lead to human perception of a work. There are, however, ongoing legal proceedings on the matter in the US and in England. We therefore have to wait and see what the courts decide and on what grounds.

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