Can You Protect Your IP in the Age of ChatGPT?

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Hitesh Choudhary (Unsplash Images)

For years I’ve been espousing that Intellectual property, IP, can be the most important asset a business or a professional can possess. The dramatic introduction this past year of next-generation generative AI software is causing me to doubt my previous assumptions. I’ve always encouraged my clients to both protect AND leverage their IP. In this article, I will explore how generative AI software will affect creative efforts and what intellectual property or strategies one can use to protect content, be it graphic or written content.

The traditional methods of trademark, copyright, and patent protection have for the most part been effective. They provide a recognized avenue of ownership with legal recourse in the event of infringements. But, it’s time to rethink all of these premises. The tsunami of disruption that generative AI software will unleash leads me to contemplate how these two activities, protection, and leverage of IP can be accomplished and what it means as a new paradigm of creativity.

Content-generating professionals, graphic designers, artists, writers, video producers, and others know how important to protect their creative output. It’s their livelihoods that are at stake. Generative AI software has the potential to take this creative output and produce something similar – or even better – than what you could have produced yourself. That’s not only worrisome, but also darn scary for people and companies that have invested significant time and money in protected original content.

What is Generative AI Software?

Let’s start with what exactly is generative AI software.

It’s a type of artificial intelligence (AI) that is capable of creating new content, images, or other outputs based on existing data. This type of software uses algorithms to analyze a large dataset and generate content or images that are similar to what would have been created by a human. In other words, looks like the math and computer nerds from high school who skipped art, music, and English composition classes are having their say. And it’s not funny.

Generative AI software has a wide range of applications; most of which have yet to be explored or leveraged. For now, it can be used to create new music, generate images, or even write stories. But the future is still young for this technology. What new creativity will it inspire or unleash? Recall the doomsayers when the Internet first hit the scene. Or eCommerce. The list of technology disrupters that ended up opening new opportunities for business, personal expression or societal good is ever growing. And many businesses and professions were left in the dust.

I know that this is the way of the world. It’s the price of progress. However, something feels like it’s the proverbial slippery slope that we will be sliding down pretty quickly.

AI is just a tool. But like any technology it that will only get more and more powerful. It’s what we do with it that is intriguing. Think of IBM’s Deep Blue. At first developed to challenge the world champion in chess, Gary Kasparov. At first a novelty software experiment, it has gone on to become one of the company’s major innovations of all time. The first generation was not quite able to the challenge, but it ‘learned’. The software’s ability to handle massive amounts of data proved no match and bested the world champ. A similar situation occurred with IBM’s Watson software that took on the more nuanced challenges of the game show Jeopardy. Or Google’s Alpha Go which repeatedly bested the world’s best in the game of Go. It’s now a given that a computer-generated AI chess program will always prevail against the world’s best human chess masters. IBM knew that they had a powerful new tool on their hands. The Watson software has gone on to tackle previously unconquerable human intellectual challenges. It’s not surprising that Microsoft has invested billions of dollars in the generative AI startup, Openai.

I return though to a basic and even ethical question. How can humans ‘protect’ their own creative products? But first a short explanation of how Generative AI works.

How Does Generative AI Use Existing Content and Images?

GPT-3 (Generative Pre-trained Transformer 3) is a powerful machine-learning algorithm developed by OpenAI that can generate text based on a given prompt. For example, GPT-3 can use a given text prompt to generate a new story or article. Similarly, ChatGPT is a conversational AI platform that can create text responses to user inquiries. ChatGPT can use an existing conversation to create a response. And Dall-E is a generative AI software developed by OpenAI that can generate images based on text descriptions. Dall-E can take an image and generate a new one based on it. Dall-E can be used to create art, logos, and other images.

This type of generative AI relies on the availability of large amounts of data to work effectively. Without this data, it would be difficult for the software to produce accurate outputs. It is trained on a massive dataset of text and can generate text that is grammatically correct, coherent, and in the same style as the input. Leveraging this massive data set resource allows the GPT-3 software to generate text for stories, news articles, blog posts, and more. It’s still a tool, for now.
But is it original? Is it infringing on previously created and protected intellectual property?

How Generative AI Software Affects Creatives.

Andrea de Santis (Unsplash Images)

Generative AI software has both positive and negative implications for the creative industries. On the one hand, it can be used to create unique and original content that would not have been possible without AI. On the other hand, it could lead to a situation where AI is used to copy and reproduce existing content without permission or attribution. There’s going to be an ever-changing line that will be constantly moving and adjusted. I don’t see how any law or court is going to be able to dam these oncoming waters of change.

In the music industry, for example, generative AI software could be used to create new songs that sound similar to existing songs. This could lead to a situation where AI-generated music is released without permission from the original artist, resulting in copyright infringement. Similarly, in the video and film industry, generative AI software could be used to create videos that are similar to existing movies, leading to potential copyright violations. Watch out all you YouTube creators!!
In the visual arts, generative AI software could be used to create art that is similar to existing art. This could lead to a situation where AI-generated art is sold without permission from the original artist, resulting in copyright infringement. Generative AI software could also be used to generate images that are similar to existing images, leading to potential trademark or copyright violations.

Is the tail of generative AI wagging the dog now? Is it more than a tool? could argue that the paintbrush is just a tool the artist uses to create unique art. A computer and a typewriter are tools used for writing content. So why would the generative AI tool be any different? Here’s a simple answer – the paintbrush does not have a ‘memory’ of all the different paint strokes, colors, combinations that every painter had ever used and can utilize this data to create something new. But a ‘digital’ paint brush like Dall-E does.

Intellectual Property Rights and Generative AI Software

When it comes to intellectual property rights and generative AI software, it is important to understand the legal implications of using AI-generated content. While the law is still evolving in this area, there are several key points to keep in mind:

  1. Copyright Law: Copyright law generally protects original works of authorship. In the US, copyright law applies to both human-created and AI-generated content, so it is important to understand your rights as an author.
  2. Trademark Law: Trademark law protects words, symbols, and other identifying marks used to distinguish goods and services. This means that if you have a trademark for your work, AI-generated content that is too similar to your work could be considered an infringement.
  3. Patent Law: Patent law protects inventions and processes. If you have a patent for a process or invention, AI-generated content that is too similar to your work could be considered an infringement.

Strategies for Protecting Your Original Art and Content

If content is still king then how will creatives muster the soldiers and armies to defend their creative jewels? It is important to take steps to protect your original art and content from generative AI software. Here are some strategies you can use to protect yourself:

  1. Know your rights: Make sure you are aware of your rights as an artist or creator. Get familiar with copyright, trademark, and other intellectual property laws and understand how they apply to your work.
  2. Secure your rights: Secure your rights to your work by registering for a copyright or trademark. This will give you the legal protection you need to defend your work from potential infringement.
  3. Monitor your work: Monitor your work online and be aware of any potential infringements. If you find that someone is using your work without permission, take action to protect your rights.
  4. Take preemptive measures: Take steps to protect your work before it is used by generative AI software. This could include adding watermarks or other forms of protection to your images or content.
  5. Create NFTs of your creative endeavors. These non-fungible tokens create a semblance of an ownership record that leads back to the original content creation.
  6. Retain good legal advice. Identify intellectual property attorneys who are well-versed in the current legal standards and precedents.
  7. Use licensing agreements: Use licensing agreements to give you control over how your work is used. This will ensure that you are properly compensated and credited for your work.

Conclusion

Generative AI software has the potential to be used to create content that is similar to your own. As a creative professional, it is important to understand how generative AI software works and the legal implications of using it. Taking preemptive steps to protect your work and understanding your rights are key to protecting your creative interests in the age of generative AI software.

Joel Goobich
Joel Goobich is a recognized business thought leader and an accomplished entrepreneur, executive, and management consultant with extensive experience in marketing, sales, business strategy, and innovation. He is a published author, blogger, veteran podcaster, and contributing writer to Forbes, Martech Cube, Martech Outlook, Business2Community, and other online publications. His latest book - HyperLeverage: Do More With What You Have For Exceptional Results provides a systematic methodology to uncover and unleash your leverage.

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