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The first video in our series on Practical Guidance for Generative AI explores whether users can protect their GenAI output with patent, copyright, or trade secret law.
The transcript of the conversation below has been edited for brevity and readability.
Joel Lehrer: The client has asked if the user owns the output from the GenAI tool. If yes, do you have IP rights to those outputs?
GenAI tools are available subject to terms of use. Where the term GenAI provider owns the output, the user does not own the output. However, many of his existing GenAI tools do not take ownership into account in their terms of service. If so, do the users own the output and what intellectual property rights do they have? Marty?
Martin Gomez: The user certainly owns the actual instance of the output. When you get a document from a GenAI tool, you own it, just like you own a painting you buy from a gallery. But can you force her IP rights on that output?That’s where the analysis gets tricky.
Traditionally, such rights were protected by copyright or patents. U.S. courts have stated that to obtain copyright, the creator of the copyright must be a human being. To get a patent, the inventor must be human. The inventor must not be a computer. Generally speaking, our guidance at this time is that the user cannot copyright or patent the output from her GenAI model.
This does not mean that inputs or prompts cannot be copyrighted. In theory, you may be able to obtain a patent on the technology or method of using GenAI tools.
Clients are also asking whether GenAI output can be protected as a trade secret. What do you think, Joel?
Joel Railer: This may be dependent on the terms of service or terms of use governing the GenAI Tools. How does the tool handle the inputs and outputs that the model produces?
In general, for something to be considered a trade secret, the owner must take appropriate steps to maintain its confidentiality, usually through physical, technical, or contractual means. In theory, this could apply to GenAI’s inputs and outputs, but there are some issues related to how the terms of use treat the inputs and outputs. Specifically, whether these inputs and outputs are fed back to his GenAI model as part of the tool’s corpus. used by others. The moment these inputs or outputs are fed back into the model and new inputs and outputs are generated, in theory, trade secret protection can be lost.
Additionally, some people encourage GenAI tools to generate code without actually knowing what sources the GenAI model uses to generate its code. Users do not necessarily know the terms of the license governing the software used to generate their code. That software may be subject to a restrictive open source license (eg, may only allow non-commercial use). A license may contain simple obligations, such as those relating to attribution, or more complex obligations, such as requiring the output code itself to be made available under an open source license.
In addition to these issues, there are many other issues posed by GenAI technology. In the coming days and weeks, the terms and licenses governing the GenAI Tools, potential liability, privacy concerns, and employee or employee-employer issues related to your use of the GenAI Tools or the output they generate. I will explain about stay tuned.
The content of this article is intended to provide a general guide on the subject. You should seek professional advice for your particular situation.
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