Who Owns the Code?
In one of my earlier AI and coding articles, I looked at how ChatGPT can rewrite and improve your existing code, one of the commenters, @pbug5612, had an interesting question: Who owns the resultant code? What if it contains business secrets – have you shared it all with Google or MS, etc.?
The Legal Implications
There’s a lot to unpack here, but a good starting point is the overall theme of this discussion. As attorney Collen Clark of law firm Schmidt & Clark states: Ultimately, until more definitive legal precedents are established, the legal implications of using AI-generated code remain complex and uncertain.
Ownership of AI-Generated Code
Here’s a probable scenario. You’re working on an application. Most of that application is your direct work. You’ve defined the UI, crafted the business logic, and written most of the code. However, you’ve used ChatGPT to write a few modules and linked that resulting code into your app.
Who owns the code written by ChatGPT? Does the inclusion of that code invalidate any ownership claims you have on the overall application?
Attorney Richard Santalesa, a founding member of the SmartEdgeLaw Group based in Westport, Conn., focuses on technology transactions, data security, and intellectual property matters. He points out that there are issues of contract law as well as copyright law — and they’re treated differently.
Contractual Ownership
From a contractual point of view, Santalesa contends that most companies producing AI-generated code will, "as with all of their other IP, deem their provided materials — including AI-generated code — as their property."
OpenAI (the company behind ChatGPT) does not claim ownership of generated content. According to their terms of service, "OpenAI hereby assigns to you all its right, title, and interest in and to Output."
Copyright Ownership
Let’s touch on the difference between ownership and copyright. Ownership is a practical power that determines who has control over the source code of a program and who has the authority to modify, distribute, and control the codebase. Copyright is a broader legal right granted to creators of original works, and is essential to controlling who can use or copy the work.
If you look at litigation as something of a battle, Santalesa describes copyright as "one arrow in the legal quiver." The idea is that copyright claims provide an additional claim, "above and beyond any other claims, such as breach of contract, breach of confidentiality, misappropriation of IP rights, etc."
What About Copyright?
The Compendium of the U.S. Copyright Office Practices, Third Edition, states that to qualify as "a work of ‘authorship,’ a work must be created by a human being…Works that do not satisfy this requirement are not copyrightable."
Additionally, the Compendium notes that the U.S. Copyright Office "will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings."
Conclusion
We haven’t even touched on liability and other legal issues, which you’ll want to read about in Part II. There are some clear conclusions here, though.
First, this is somewhat uncharted territory. Even the attorneys say there’s not enough precedent to be sure what’s what.
Second, it’s likely the code written by an AI can’t be owned or copyrighted in a way that provides legal protections.
Frequently Asked Questions
Q: Who owns the code written by ChatGPT?
A: The ownership of AI-generated code is still an unsettled area of the law.
Q: Can I copyright the code written by ChatGPT?
A: According to the Compendium of the U.S. Copyright Office Practices, Third Edition, works that do not satisfy the requirement of being created by a human being are not copyrightable.
Q: What are the implications of using AI-generated code?
A: The legal implications of using AI-generated code remain complex and uncertain until more definitive legal precedents are established.
Q: Can I use AI-generated code in my application?
A: It’s recommended to seek an attorney for advice on these matters, as the ownership and copyright of AI-generated code are still unclear.
