ChatGPT is a chatbot based on artificial intelligence. For example, it is multi-lingual and can understand text input in natural language. It can also answer questions on all kinds of topics and create or translate texts. Its capabilities, wide range of applications and free use have made ChatGPT the fastest growing Internet application. However, the enormous success of ChatGPT continues to pose new challenges to copyright law. The question arises as to whether texts created by artificial intelligence fall under copyright law and whether the legislator needs to take action.
To answer these questions, it is necessary to clarify
– what copyright means,
– what types of works are protected by copyright,
– who are authors in the sense of the law, and
– whether ChatGPT can be an author of texts or works in general.
What is copyright?
Copyright law is generally a collection of laws. It essentially consists of the Copyright Act (Urheberrechtsgesetz, UrhG), the Performing Rights Society Act (Verwertungsgesellschaftengesetz, VGG) and the Publishing Act (Verlagsgesetz, VerlG). The purpose of copyright law is the legal protection of cultural creation. This is in contrast to industrial property rights. This is guaranteed, among other things, by patent and trademark law.
Copyright and Related Rights Act
The Copyright Act (Urheberrechtsgesetz, UrHG) of September 9, 1965 came into force on January 1, 1966. The aim of this law is formulated as follows
Authors of literary, scientific and artistic works shall enjoy protection of their works in accordance with this law. […] Copyright protects the author in his intellectual and personal relationship with the work and in the use of the work. At the same time, it serves to ensure appropriate remuneration for the use of the work.
Copyright thus serves to protect the work and its creator. But how does the legislator define a work and what must be taken into account when using it?
What are works protected by copyright?
Section 2 (2) of the Copyright Act states:
Works within the meaning of this law are only personal intellectual creations.
Only a work that is a personal intellectual creation can be protected by copyright. The work must be something new, different from what already exists, and display a creative achievement.
The prerequisite for the creation of a work is a creator. This creator gives his idea a form that is perceptible to the human senses. This form is recognizably created according to the will of the creator and is not given by chance or nature.
In summary, for a personal intellectual creation to be protected by copyright, four conditions must be met:
– The work must be the result of human creativity.
– It must be perceptible to the human senses. No permanent form is required.
– The work must be the result of creative effort.
– It must be characterized by the person who created it.
Level of creation
The question of whether a creation is protected by copyright also depends on the so-called level of creation. If this is achieved and the other requirements of the Copyright Act are also met, the work automatically enjoys copyright protection. However, it is not clear from the text of the law what level of creation means.
The German Federal Court of Justice (Bundesgerichtshof, BGH) decided this on November 13, 2013 (case number: I ZR 143/12):
It is therefore sufficient that they reach a level of creativity which, in the opinion of circles receptive to art and reasonably familiar with artistic views, justifies speaking of an „artistic“ achievement.
This definition is very broad, so in the event of a dispute, the courts must decide whether or not a work is protected by copyright. Important keywords are individuality and originality as well as intellectual and personal activity.
In the case of texts, the level of creativity is rather low. Photographs also generally enjoy copyright protection. The requirements for logos seem to be somewhat higher.
If a work does not qualify for copyright protection because the level of creativity has not been reached, the work is considered to be in the public domain.
Public domain works
Works are considered to be in the public domain when they are not protected by copyright and the author has neither the exploitation rights nor the moral rights. This means that texts, songs, photos, and movies can be used and distributed without the author’s permission.
In addition, laws, regulations, official decrees, and proclamations are considered to be in the public domain because official works are generally not protected by copyright.
Term of copyright protection
However, works protected by copyright are only protected for a limited period of time. The following general information on the duration of copyright can be found in Section 64 UrhG:
Copyright expires seventy years after the death of the author.
However, if the copyright in a work is transferred to the heirs after the author’s death, the rights are transferred to the heirs for a maximum period of 70 years.
After this period, the works are considered to be in the public domain.
Copyright law treats translations differently. They do not enter the public domain until 70 years after the death of the translator. The translator is usually also regarded as author.
What are creators?
The legislator defines it in § 7 UrhG as follows:
The author is the creator of the work.
Creators are therefore persons who have developed a work through productive and creative work. Examples include authors, composers, choreographers, designers, painters, sculptors, inventors, programmers and other professionals.
Thus, a creator is anyone who puts his or her personal idea into a tangible form. Works created by children and people with disabilities may also be protected by copyright.
Copyright arises automatically when a work is created. The law does not require publication or registration. In principle, even drafts or manuscripts can be protected by copyright. However, it is not the idea that is decisive, but only the work that is the result of the author’s personal intellectual creation.
It is important that the creator is a natural person. Plants, animals, machines, computers and computer programs lack the basis for personal intellectual creation. Their products are therefore not covered by copyright.
Is ChatGPT a creator?
A personal intellectual creation is understood as a purposeful human design having the status of creation.
As a result, ChatGPT cannot be granted a copyright on the texts that it has created.
What if I just want to use ChatGPT text?
OpenAI states that ChatGPT’s artificial intelligence was trained using a wide range of publicly available data. Only content that is available online and in the public domain was used. Or data whose use is permitted by license.
However, since ChatGPT may have used copyrighted works of others, it is possible that the texts generated by ChatGPT may be subject to copyright infringement. ChatGPT texts could therefore be considered as plagiarism. It is possible that they are only slightly modified versions of another text, or that even elements of the original text have been copied word for word.
Anyone who reproduces or publishes such a text is committing a copyright violation according to §§ 16 and 19 of the German Copyright Act (UrhG). The creator of the original is then entitled to removal and omission, destruction, compensation, transfer and recall. The requirements and consequences of the individual claims are regulated in §§ 97 to 101a UrhG.
The initial question can therefore be answered as follows:
Texts created by an artificial intelligence like ChatGPT are not protected by copyright. However, the uncontrolled use of these texts may violate copyright laws.
Urheberrecht und Urheberrechtsgesetz 2024
To the German translation of this article: Urheberrecht: Sind ChatGPT-Texte eigentlich geschützt?