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Can users’ prompt in generative artificial intelligence technology be granted protection under intellectual property law?
Even those accustomed to attending the world of technology and innovation have been amazed by the overwhelming acceleration in developing the so-called generative artificial intelligence technologies and systems.
Among them, the one in vogue today, as far as text content is concerned, is ChatGPT and, more generally, the models belonging to the GPT-3 family, developed by OpenAI. The same entity is also at the forefront of AI systems dedicated to creating images from textual data with the Dall-E 2 model. Equally well known are the Stable Diffusion platform, recently made available to the general public by the Stability AI company, and MidJourney, accessible via Discord.
The spread of these increasingly improved systems raises several interesting questions for those concerned with intellectual property, including the issue of the nature of the works created with the help of these tools, the attribution of any rights over them, and the relationship between these rights and those over the works used to train artificial intelligence systems, already the subject of litigation, at least in the United States.
A topic for the time being less explored, at least by jurists, has to do with the nature and protection of instructions given to artificial intelligence systems to generate a specific result, the so-called prompt.
For example, an image can be created by providing a system employing the Stable Diffusion model with the prompt “a female lawyer in court, in front of the judge’s bench, explaining a complex case, sepia drawing style,” subsequently selecting the image from the system’s various suggestions. Submitting to ChatGPT the prompt “Compose a concise story about a lawyer trying to explain a difficult technical issue in court, resorting to an unexpected solution” yields, after a few passes, the following text: “The lawyer stood nervously before the jury, trying to explain the intricacies of a computer programming issue at the heart of the case. The technical language and jargon left the jury confused and disengaged. To make the jury understand the issue, the lawyer comes up with an unexpected solution of using a simple, childlike computer drawing with a big red button labeled “run program” to explain the problem. This simple illustration helps the jury understand the technical issue, and the lawyer was able to make his point.“
Whatever the assessments and conclusions regarding the possibility for images and text created with the aid of artificial intelligence systems to access copyright protection, the analysis must necessarily be extended to the possibility of protecting the relevant prompts.
Several elements should be taken into account in this evaluation:
- The formulation of prompts must meet (also) technical requirements. Each platform has prepared and publishes manuals indicating the parameters and commands that can be used in the prompt formulation;
- The relationship between prompt and result is not necessarily unambiguous; in fact, the artificial intelligence system usually has an opacity coefficient that prevents the establishment of a direct and deterministic link between prompt and work;
- Most models return multiple results for each prompt, leaving the user with the option of selecting the preferred one or ones and processing them further, if appropriate, through an actual dialog (which is the hallmark of ChatGPT); and
- Collections of prompts are already available, and the authors-assuming one can employ this term-sell for a fee directly or through appropriate platforms, such as PromptBase.
To a first approximation, the circumstances just listed might lead to a favorable assessment of the possibility of granting protection to a prompt used in artificial intelligence systems through under intellectual property law: these are works that can be traced back to the creativity and personality of their author, have economic value, and are easily reproduced.
Admitting prompts to copyright protection entails some significant ancillary consequences in our system. The first relates to the level of creativity of the work, which must exceed a minimum threshold, however low. The second relates to the extent of protection, which can never allow the author to monopolize solutions and technical devices, which must remain available to all. Protection must, therefore, be conformed along the lines of that provided for computer programs, which have as their object the outward form of the work and not the ideas and technical solutions that determine its operation.
Assuming that there is a space for prompt protection, it is helpful to reflect on the relationship between that work and the one generated through the artificial intelligence system, which is likely to be posed in terms of elaboration and derivative work. Equally valuable is reconstructing – again in terms of derivation and elaboration – the relationship between prompts and pre-existing works of genius employed as prompts or to prepare prompts (think of the text of a musical work or poem used to prepare a prompt from which to derive one or more images or videos).
Once these relationships are brought into focus, it will also be possible to regulate the related transactions, likely in terms of assignment or licensing, bearing in mind that the use of a work of authorship as a prompt for an artificial intelligence system was not among the foreseeable uses until recently and that permission to use a prompt to generate specific works or on certain platforms does not necessarily extend to works of a different nature or other platforms (and perhaps not even to different versions of the same platform).
These questions, and the many others that generative AI systems pose, open up scenarios that are, for the most part, unexplored; in the absence of reliable normative and jurisprudential support, it is a good idea to move cautiously, resorting both to past experience-hence the reference to the principles elaborated on the protection of database software and more generally of so-called useful creations-and to contractual agreements, clarifying as soon as possible the rights and obligations of all parties involved in the generation (creation?) of works through artificial intelligence systems from prompts.
On a similar issue, you can find interesting the article “Unlocking the Potential of Generative Artificial Intelligence (AI): Navigating the Legal Issues and Unleashing Its Creativity.”
