Recently, there has been a rapid development of Artificial Intelligence (hereinafter “AI”) technologies such as Chat GPT, DALL-E, Midjourney or GitHub, CoPilot, which are revolutionising many areas of life, including the creation of artistic, literary, musical and other forms of creative content. This raises the question of how AI-created content affects copyright issues.
Artificial intelligence in the context of creativity
According to the provisions of the Law on Copyright and Related Rights, the subject of copyright is any manifestation of creative activity of an individual character, created in any form, regardless of value, purpose and method of expression. In particular, the following works are subject to copyright: works expressed in words, mathematical symbols, graphic signs, fine arts, photography, violin making, industrial design, architecture and town planning, music, stage and audiovisual works.
A work is protected by copyright from the moment it is created, whether or not it is finished. This means that in order to be considered a work, the following conditions must be met: the work must be capable of being recognised as a manifestation of creative activity, the work must be individual in nature, and the work must be fixed in some form. Accordingly, copyright protects original works that are the result of human creative activity.
In this context, questions have arisen: who is the author of a work created using AI? Is it the creator of the algorithm, or perhaps the algorithm itself, or perhaps the person who commissioned the creation of the work? Current copyright law recognises that an author can only be a human being, which means that the algorithm itself cannot be considered an author. This in turn has legal implications, including employment law.
Commercial use of AI-generated content
In the context of commercial use of AI-generated content, there is a risk of infringement of third party copyrights, particularly where AI generates works that are similar to existing protected works. Although formally these works may be in the public domain, a cautious approach and consultation with a lawyer is required to protect the company from potential legal consequences. Under the Copyright and Related Rights Act, a person who misappropriates or misrepresents the authorship of all or part of another person’s work or artistic performance is liable to a fine, restriction of liberty or imprisonment for up to three years. If our employee does this in the course of his or her duties, the employer will be held liable in the first instance for unlawful use of copyright.
In addition, the use of artificial intelligence may also create risks related to breach of confidentiality and disclosure of data. Under the Personal Data Protection Act, a person who processes personal data in a filing system when the processing of such data is not permitted or is not authorised is liable to a fine, restriction of liberty or imprisonment for up to two years.
There are no clear rules yet on the use of AI, but the draft regulations suggest that responsibility for breaches lies with users, not the developers or providers of the technology. This means that making a customer’s sensitive data available to an AI system carries the risk of it being used or disclosed by unwanted parties.
Issues around employee use of AI
Recently, employees have increasingly turned to AI-based tools even in everyday tasks, which on the one hand can contribute to greater work efficiency, but on the other hand is associated with various problems, which can be defined as follows:
- Legal and intellectual property risks:
The use of AI poses a risk of copyright and intellectual property infringement. The lack of regulation leads to uncertainty about the copyright of content generated by AI.
- Plagiarism and infringement of third party rights:
AI-generated content may lead to plagiarism, which may result in user liability. There is a risk that AI-generated content may infringe the rights of third parties.
- Data Processing and Confidentiality:
The use of AI may lead to the disclosure of confidential or trade secret information.
What is changing in copyright law?
On 1 August 2024, the AI Regulation (Artificial Intelligence Act) came into force, which aims to shape the legal regulation of artificial intelligence systems and models. The regulation aims to ensure safety, transparency and respect for European values in the development and application of AI. The law takes the form of a regulation, which means that its provisions apply directly across the European Union.
The AI Act is based on a risk-based approach, linking the obligations of providers and implementers of AI models and systems to the potential risk of harm to citizens, society and the economy.
The implementation of the regulation’s provisions into Polish law will begin in early 2024, after the regulation has been approved by the European Parliament. Key provisions will be introduced gradually, with full implementation scheduled for August 2027.
Guidelines for the use of artificial intelligence in companies
In light of the above, it is important to note that the use of artificial intelligence by employees can pose a number of legal and operational risks. The most serious risk is the issue of copyright protection and confidentiality.
Artificial intelligence is playing an increasingly important role in the field of artistic and commercial creativity, which brings new legal and ethical challenges, especially in the context of protecting employees from misuse and ensuring compliance with applicable regulations.
Despite the introduction of EU regulations into Polish law, there will still be a high risk associated with AI-generated content. Therefore, there is an opportunity to develop and implement an AI policy in your company, including an AI risk assessment.
We invite you to get in touch with us. Our team of specialists is ready to help you ensure the safe and responsible use of artificial intelligence.
