GPT Chat and Copyright: implications and risks

Lately, there has been a lot of discussion about Chat GPT, acronym for Chat Generative Pre-trained Transformer, a particular chatbot developed by OpenAI which is a research company engaged in the development and evolution of artificial intelligence.

Chat GPT has been presented to the users as a “friendly Ai or Fai”, therefore as an intelligence capable of contributing to the benefit of humanity. Nevertheless, its use has triggered lot of concerns and criticisms, with major implications especially in relation to intellectual property’s aspects.

In fact, thanks to its advanced machine learning technology, called Deep Learning, Chat GPT is able to generate a new text autonomously, imitating human language. Thus, it can be used not only to briefly answer questions, but also for automatic text writing.

Specifically, Chat GPT is able to create texts from scratch upon user's request, but also to process summaries or documents from existing works and thus owned by others.

However, the current absence of a specific regulation on its use risks to seriously jeopardizing the copyright of the contents “created” by Chat GPT: on one hand significantly increasing cases of copying and plagiarism and, on the other hand, making more complex for the copyright holder to defend its rights.

To fully understand the issue just above represented, we must first consider that, according to copyright law, the idea cannot be protected as such, but only its form of expression (thus, in the case of Chat GPT, the text created).

It must also be considered that once the authorship of the writing or work has been recognized, any improper use of it is forbidden, including copying in its entirety, paraphrasing and sometimes reworking it, when the differences appear to be of minor relevance. In essence, plagiarism exists in case of partial reproduction of the protected work and, based on recent case law of the Supreme Court, also in the case of “developmental plagiarism”, for example when the new work cannot simply be considered inspired by the original work because the differences, merely formal, make it an abusive and unauthorized reworking of the latter.

It is also useful to point out that, according to consistent case law, in order for copyright infringement to be established, the elements considered essential of the original work must not be reproduced and therefore they must not coincide with those of the work that has been transposed.

Although there is no specific regulation on the point, it is reasonable to state that these principles also apply to the texts generated by Chat GPT, because its use or the use of any other form of artificial intelligence cannot derogate the rules of copyright law. Consequently, the users must be very careful to ask to Chat GPT to summarize or paraphrase another's text because, if these are spread without the author’s permission, the latter might demand payment of reproduction rights in addition to compensation for any damage caused. To this extent, once can wonder whether the artificial intelligence’s system itself should refuse such a request if it precisely infringes other’s rights.

Another hypothesis that might arise must then be considered, and that is if the text prepared from scratch by Chat GPT is worthy of protection under copyright law. In this case, the question to be asked is whether copyright can be recognized in favor of Chat GPT.

To answer this question, we must first consider that, according to the Italian law, artificial intelligence systems are devoid of legal personality, therefore they cannot hold any rights, including copyright. This also seems to be confirmed by the copyright law which doesn’t mention Chat GPT nor any other form of artificial intelligence in listing the subjects to which it may be applied. And it could not be otherwise since it is a law issued in 1941.

Consequently, for a Chat GPT work to be deemed worthy of protection under the copyright law, there must necessarily be a creative contribution by a natural person, which, however, seems to be lacking at present.

In conclusion, the absence of ad hoc legislation regulating the use of Chat GPT exposes to serious risks of infringement of others' works and thus jeopardizes authors’ rights. This is also because it does not appear that Chat GPT has at present adopted suitable verification and control systems to prevent infringement of other’s rights.

Given the increasing use of this new technology and the doubts just discussed, the writer hopes that the legislature will regulate this phenomenon as soon as possible so as to clearly define its scope and any possible rights (rights which do not seem to be able to be recognized in favor of Chat GPT).

It is also hoped that Chat GPT will soon be able to implement effective monitoring and reporting systems for the protection of intellectual property rights, which will likely need the help and assistance of the rights holders themselves (similar to the Amazon platform), but which could concretely safeguard others’ creative works.