AI and popular platforms like ChatGPT have interesting ramifications for businesses and their intellectual property

By Katie Charleston, founder/partner at Katie Charleston Law

Artificial Intelligence, or AI, has the potential to radically change the field of intellectual property.  Business owners need to be aware of both how to use AI, and its implications.  While it can benefit businesses with its time and cost savings, allowing for more efficiency, it can also pose a risk to clients and the businesses themselves.  

Many businesses already use AI to create, manage and protect intellectual property.  For example, AI is being used to manage patent and trademark portfolios, allowing for automation of searches and reporting.  This makes it possible for businesses to both register and regulate businesses’ intellectual property in a shorter amount of time, and with increased accuracy.  Automated monitoring and analysis further allow for large amounts of data to be analyzed quicker and more often to find threats or suspicious activity related to Intellectual Property. 

Businesses are also using AI to create their Intellectual Property, which poses some risk as to the ownership of the creation.  While AI can create Intellectual Property, courts and government agencies are reluctant to give such creations protectible registration, and a question remains as to who owns the rights to the Intellectual Property – is it the AI programmer, the creator who used the AI tool for the creation or the AI system itself?  For example, if a music artist used ChatGpt to write a song, would it be the artist, ChatGpt or OpenAI that owns the rights to it?  These types of questions and their answers are yet to be fully considered though we know that the U.S. Copyright Office and Courts are reluctant to grant registration to works not created by human authorship.  This all begs the question – should you be using AI to create Intellectual Property that you want rights to and ownership in?

It is necessary for business owners to keep up with ever evolving AI technology to stay current, but they should consider AI as a tool to assist their business rather than a replacement for a human employee.  The current AI systems available to most businesses are limited in their capabilities and are far from perfect.  When using these systems, it is important to understand that they are limited to the data they are fed and the queries they are presented with.  Therefore, to get valuable data, you need to give the system the parameters in which you want it to create the content.  In other words, making a query too broad will give you more than you ask for and making it to narrow will prevent it from encompassing all the data it could pull for you.  There is also the likelihood of error as AI systems have shown to provide incorrect data.  As with everything you create, there should be some fact checking and review in place to verify the results given. 

Certain AI systems may also pose a threat to business owners and their clients when it comes to existing Intellectual Property.  AI Systems are created by scraping or feeding on data input.  As such, Intellectual Property creations may be copies or parts of others protected Intellectual Property, and an infringement on the original owner’s work.  Due to this it is important for businesses and creators to have systems in place to monitor potential infringement.  Failure to do so could prevent future rights and recovery due to statutes of limitation.    

Inaccurate data generated by AI systems is also a risk for business owners.  Already, we are seeing lawyers open to sanctions for relying on ChatGpt that fabricated case law to support a position; and a rogue chatbot engaging in explicit conversations in which it was not trained to converse.  This is just a sample of the incorrect data that AI has produced and fabricated.  Remembering that these AI systems are tools and not replacements will remind business owners to do their own fact-checking to prevent their own liability from using incorrect or protected material.  This is even more important when it comes to creating your own Intellectual Property.  

If you do intend to produce Intellectual Property using these AI systems, a better approach may be to use them to create an outline of the product rather than substance.  Using the outline, and making material changes to the content once generated may overcome objections as to human authorship and insulate the business from liability for Intellectual Property infringement. 

While AI is changing the world of business and intellectual property in significant ways, it can be used productively and benefit your business if you take the right measures.  A business owner should take a proactive approach to managing intellectual property and work with experienced attorneys who can provide guidance and advice.  By doing so, businesses can avoid costly legal disputes and ensure that they are able to capitalize on the full potential of AI.