Copyright dilemma as Artificial Intelligence rises in Kenya

For close to four decades, users have interacted with various forms of Artificial Intelligence (AI) though sometimes unaware of it.

A recent wave of evolution has, however, made AI more noticeable as inventors deployed technology in daily operations.

Perhaps this biggest AI craze today is the recently launched ChatGPT — the popular chatbot from Microsoft-backed, OpenAI — which has millions of active users globally just five months after it was launched. ChatGPT uses natural human-like language to give answers to anything that happened before 2021.

Not one to lag, Google came up with its own AI chatbot, Bard, which is powered by Google’s Language Model for Dialogue.

AI chatbots are designed to do just about anything from writing student assignments, song lyrics, and articles to computer code.

But with the many advantages that AI chatbots pose for us, can work generated by ChatGPT be copyrighted?

Two Intellectual Property Lawyers engaged Smart Business on the evolution of AI and the legal issues around it in a discussion around the copyright issues arising from the use of ChatGPT.

Copyright is the exclusive right that the author of an original work enjoys over own work. In Kenya, copyright law is governed by the Copyright Act of 2001.

Is there any regulation governing copyright in Artificial Intelligence?

Paul Kaindo, a senior legal counsel at the Kenya Copyright Board, says that Kenya has not yet established a regulation governing the copyright over work generated by AI.

“The Copyright Act has attempted to incorporate digital works but we have not made a specific regulation covering AI-generated works. When the Act was adopted the situation was different. So our laws are yet to catch up,” he says.

Is work generated by ChatGPT copyrightable?

Copyright is a branch of Intellectual Property that intends to protect creations that result from the human intellect. Section 22(3) of the Copyright Act provides that a work is eligible for copyright if it is original and fixated, that is written down, recorded, or put in any other material form.

Section 22 (5) of the Copyright Act provides that the rights protected by copyright accrue to an author upon fixation of the work. The Copyright Act defines an author as a person.

“Work generated by ChatGPT lacks the aspect of originality because it is not generated by human reasoning. A work will, therefore, be eligible for copyright if it constitutes a fixed work and its original human authorship. Work generated by AI would not enjoy copyright protection under the reigning legal regime in Kenya,” says Mr Kaindo.

What happens if you edit content created by ChatGPT? Is the edited version copyrightable?

Section 22 (4) of the Copyright Act provides that just because there is an infringement does not mean that the work is ineligible for copyright. “If there is a work generated by ChatGpt and you edit or rewrite it, then that work can become work for which you can claim copyright,” says Mr Kaindo.

Were there a law protecting copyright over work generated by ChatGPT, who would claim ownership of the copyright?

Section 31 of the Copyright Act provides that copyright vests initially in the human author.

“Since AI is incapable of applying reason or intellect without someone it cannot, therefore, claim ownership over the right. AI-generated work is commissioned work. Therefore, if it was copyrightable, copyright over the work would be registered in the name of the person for whom it was being prepared. In this case, the person who gave the instructions to ChatGPT would have the copyright over the work. Discussion around the regularisation of AI-generated work seems to be inclined towards this direction,” says Mr Kaindo.

What happens when ChatGPT generates the same content for another person?

Cathy Mputhia, an advocate of the High Court and founder of C Mputhia Advocates says, “It depends on the usage of that work. There is a likelihood of infringement if the generated works infringe other works or entirely plagiarise other works. Under general copyright laws, there are certain exceptions to infringement such as the defence of fair dealing.”

The second Schedule of the Copyright Act raises fair dealing as a defence against the infringement of copyrights. It provides that it can be used where the work has been used for scientific purposes, private use, review, or criticism, and where it is used to report current events.

Ms Mputhia says that it would be infringing if the generated works are commercialised or used outside the exceptions.

ChatGPT does not cite the original sources. Does this raise copyright issues?

Creatives are saddened by the fact that their work is being used without them being given credit. On this, Ms Mputhia says, “ChatGPT may produce works that contain material that has been subjected to copyright. For example, it may produce work which includes an entire passage of a text from a book. The authors in that case have a right known as moral rights under Section 32 of the Copyright Act.

“One of the moral rights is the right of attribution which is the right to be named as the author or to have the work attributable to him. ChatGPT itself doesn’t have to cite but the person using ChatGPT must do attributions, especially if the work is for commercial use.”

Can you cite ChatGPT as a source?

Ms Mputhia believes that ChatGPT cannot be cited as a source because it is incapable of owning copyright. Only an author or a web page can be cited.

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