This first video in our series on practical guidance for generative AI considers whether users can protect GenAI outputs through patent, copyright, or trade secret laws.
The following transcript of the conversation was edited for brevity and readability.
Joel Lehrer: Client's have been asking if users own the outputs from GenAI tools. And if yes, do they have IP rights to those outputs?
GenAI tools are made available under terms of service. If the terms say the GenAI provider owns the output, the user does not own the output. But many existing GenAI tools don't account for ownership rights in their terms of service. In that situation, does the user own the outputs? And what IP rights do they have? Marty?
Martin Gomez: The user certainly owns the actual instance of the output. If 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 enforce the IP rights of that output? That's where the analysis gets tricky.
Traditionally, those types of rights are protected by copyrights or patents. US courts have said that to get a copyright, the author of the copyright must be a human. And to get a patent, the inventor must be a human — the inventor cannot be a computer. Generally speaking, our guidance at this time is that users cannot copyright or patent the output from a GenAI model.
That doesn't mean you can't protect your inputs or prompts with copyright. Theoretically, you might be able to get a patent on a technique for or a method of using a GenAI tool.
Clients are also asking if a GenAI output can be protected as a trade secret? What do you think, Joel?
Joel Lehrer: It can depend on the terms of service or terms of use that govern the GenAI tool. How does the tool treat the inputs and outputs the model generates?
Generally, for something to be deemed a trade secret, the owner must take appropriate actions to maintain its confidentiality, typically through physical, technical, or contractual means. Theoretically, this could apply to GenAI inputs and outputs, but there are a few wrinkles related to how the terms of use treat inputs and outputs — specifically, whether those inputs and outputs are fed back into the GenAI model as part of the tool's corpus for other people to use. The minute those inputs or outputs are fed back into the model and produce new inputs and outputs, the trade secret protection could, theoretically, be lost.
Moreover, some people prompt GenAI tools to generate code without really knowing what sources the GenAI model uses to generate that code. Users don't necessarily know the terms in the license that govern the software used to generate code. That software could be subject to an open source license, which could have restrictions (for example, it could allow only non-commercial use). A license could contain simple obligations, such as those related to attribution, or more complex obligations, such as requiring that the output code itself be made available under an open source license.
In addition to these issues, there are numerous others that GenAI technologies introduce. Over the next few days and weeks, we will provide commentary about terms and licenses governing GenAI tools, potential liabilities related to using GenAI tools or the outputs they generate, privacy concerns, and employee or employee-employer issues. Stay tuned.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.