Key Steps to Protect Your Intellectual Property and Reduce Risk if Your Employees are Using Artificial Intelligence Chatbots

ChatGPT may be a popular choice for chatbot development, but it's not without its risks and vulnerabilities. In this article, we'll take a closer look at the potential dangers that ChatGPT users need to be aware of when using ChatGPT to generate content, and which intellectual property issues may arise in that context.

OpenAI, an artificial intelligence (AI) research laboratory, launched a conversational AI platform in late 2022, Chat Generative Pre-trained Transformer (ChatGPT), that is already revolutionizing the chatbot industry with its accessibility and broad skill set. In less than one week after launch, the platform accumulated more than one million users— a feat that has typically taken even the most successful consumer-facing online platforms one or more years.

While at first glance there may seem to be a lot of upsides to leveraging a free and powerful AI tool, businesses must carefully consider how the use of ChatGPT (or similar offerings) by its personnel creates new legal risks to their operations.

This overview explores the intellectual property ownership, development, and maintenance considerations that businesses must evaluate due to the broad public availability of ChatGPT and similar AI tools.

How ChatGPT Works

ChatGPT enables users to submit requests for output in human readable language and receive answers on a broad range of subjects, including everything from drafting an essay (including following a certain linguistic style) to writing software code. What further sets ChatGPT apart from other chatbots is that this model creates new creative content (versus providing the most suitable existing online content), interacts conversationally with users, remembers dialogue from the start of the conversation, and incorporates that knowledge into its future responses. Subject to the OpenAI Terms of Use, generally anyone can currently sign up for a free account to use ChatGPT at chat.openai.com.

Risks to Be Aware Of

1. IP Ownership and Authorship

The ability to register intellectual property associated with developments or works solely invented or created by AI has been widely debated. A string of cases including Dr. Stephen Thaler’s patent application for an invention generated by DABUS, an AI tool he created, and a case involving a photograph taken by a monkey, have raised questions as to the level of human involvement necessary to create a protectable invention or work. In Thaler’s DABUS matter, the Federal Circuit found that a human being must be the named “inventor” in a patent application. In the latter matter, when David Slater, a British photographer, tried to claim ownership of a photograph he set up which was taken by a monkey, the US Copyright Office similarly found that works solely created by a non-human are not copyrightable.

Such examples inform the environment into which ChatGPT will similarly be evaluated by the relevant governmental authorities, as thus far, the USPTO and the US Copyright Office have been unwilling to recognize solely AI-generated works. While some other countries evaluating the issue to date have come to similar conclusions as the USPTO and US Copyright Office (such as the UK and EU), other countries (such as South Africa) are already embracing the idea of AI inventors. Thus, international patent and copyright regimes may start to diverge in the short term as the interpretation of local law creates new opportunities for intellectual property protection in some jurisdictions while limiting the protections available for AI creations in others.

2. Output Use and Ownership Rights under the Terms of Use

Even without a present ability to register or claim certain intellectual property rights associated with solely AI-generated inventions and works in many jurisdictions, the service terms of ChatGPT and similar AI tools remain a key area of focus for understanding the scope of ownership and use rights for output generated by users. Under the OpenAI Terms of Use, OpenAI assigns all of its right, title,, and interest in the output to the user who provides the input, provided the user complies with the Terms of Use (which include, among others, certain use restrictions). In addition, as discussed above, this assignment may not currently include an ability to claim or apply for patent or copyright protection of such output in many jurisdictions (including the United States). In addition to this limitation of available intellectual property rights, the scope of the assignment is also narrowed by the activity of other ChatGPT users. The assignment includes a caveat that due to the nature of machine learning, users may receive the same or similar outputs from the chatbot, and such assigned output therefore excludes the results that are presented to other ChatGPT users. As discussed below, such limitation creates uncertainty as to original ownership rights of output (of those rights that are available), can potentially erode such ownership rights over time, and results in unclear usage rights in the future.

3. IP Infringement

Concerns over the risks that the ChatGPT output might infringe on other works should also be considered. Because Chat GPT is a large language model that has been trained on a number of different datasets, there is a possibility that the responses generated from those datasets could infringe on already established works. Using copyrighted material to train the AI model could cause that model to excessively draw from another’s work when providing a response to a user, which would lend itself to infringement claims.

4. Breach of Confidentiality Obligations by Users and Trade Secret Misappropriation

In the process of utilizing ChatGPT, the long, freeform text field available to the user to copy and paste information and submit requests creates the potential for larger sets of confidential data to be input into the service. Such use in connection with confidential information and/or trade secrets of a company, its customers, or others creates the potential for individuals to breach contractual commitments easily and potentially unsuspectingly. The OpenAI Terms of Use do not provide any protection for confidential information that may be input by a user into ChatGPT. To the contrary, the Terms of Use provide a broad use right of OpenAI with respect to any inputs and outputs to improve ChatGPT (but permits the user to reach out to OpenAI to opt out of OpenAI using the content for such purposes).

Key Takeaways

• Communicate Current Confidentiality Obligations to Employees/Contractors and Update Employee/Contractor Agreement Terms, if Necessary: To avoid confidentiality issues with ChatGPT and similar AI tools, businesses should regularly remind employees and contractors of their confidentiality obligations in conspicuously drafted policies and email reminders. Furthermore, a review of employee and contractor confidentiality agreements and obligations could be helpful to ensure that this type of behavior is sufficiently addressed from a legal risk perspective. 
• Consider External Legal and Contractual Obligations: Even if the use of ChatGPT-created output is permitted under the OpenAI Terms of Use, there may still be external obligations that restrict your ability to use ChatGPT or similar AI tools for such purposes. For example, agreements with your customers may restrict the use of AI tools in connection with their data. Additionally, the information that you input into ChatGPT may be subject to obligations under applicable privacy laws or result in additional terms being applicable to your use of ChatGPT. It is therefore critical that companies track and review their agreement infrastructure and applicable obligations before using output with third parties.
• Be Aware of Potential Ownership and License Issues: While OpenAI assigns all available right, title and interest in and to the ChatGPT output to the requesting user, as discussed above, the terms suggest that your rights may not be definite and can evolve over time. For instance, as the OpenAI terms suggest, you may not be the only user who inputs certain generic queries and therefore would not be the only user who received the output you wish to claim ownership of. In such instances, the terms specify that responses generated for other users are not considered unique “Output” (and therefore, are not assigned to the requesting user). Understanding that the output from machine learning models is not necessarily your own, or, even if unique, may not be protectable as intellectual property in certain jurisdictions, may be critical for commercial purposes. Intellectual property counsel should be involved when considering related intellectual property protection strategies.
• Take Steps to Ensure that if the Output is Used, it Does Not Infringe on Another’s Already Copyrighted Work: Because ChatGPT was trained using a plethora of datasets in order to gain information and capabilities, there is a risk that the generated output has the potential to infringe on works that it was trained on or otherwise draws information from. Users should be aware of this risk and consider available measures to limit the likelihood of infringing an existing work, such as by avoiding the use of narrow requests where the output is likely to be drawn from a specific work.

Disclaimer: Please note that as ChatGPT is a new offering in a rapidly evolving area of technology and law, this is only a high-level overview of topics to consider and does not address all potential or actual risks. We recommend conducting a detailed review of ChatGPT with your technical and legal advisors in order to fully understand the impact that such technology could have on your business (whether or not you authorize its use). This review also represents only a snapshot in time, such that future capabilities and legal interpretations in this area may change some or all of this analysis.

Our Technology Transactions team (including Daniel Yost, Sarah Schaedler, Daniel Healow, and Taylor Sullivan) can help you analyze current license terms for ChatGPT or other AI tools, discuss legal strategy for your contemplated business case, and negotiate commercial licenses to meet the bespoke needs of your team and business.