What is it?
Using artificial intelligence (AI) to create new material, such as logos, designs, written content or product ideas, is increasingly becoming common practice for businesses. Using AI can save time and give you fresh ideas, but it may also create new risks. Taking a moment to think through these points can help you understand how AI fits into your business, any steps you need to take before putting any intellectual property (IP) into AI, and how IP laws may protect AI-generated outputs.
Large language models (LLMs) are a commonly used technology, which learn from large datasets and produces new content based on the prompts you provide. While this may provide opportunities to speed-up parts of creative work, it also raises important questions about who owns the generated output and how it may interact with your existing intellectual property (IP) rights.
Risks of what you input into AI
Consider whether anything you upload into an AI tool via prompts – such as pictures, drawings or text – could be protected IP. In some cases, uploading works to an AI model that you don't own the rights for could infringe on the rights of other IP rightsholders.
Further information about what might constitute copyright infringement can be found on the copyright infringement page.
Each AI tool comes with its own terms of use. Some may state that the company that owns the tool can store or reuse anything you upload. While certain AI models allow you to opt out of having your data used for training, your data may still be stored. For businesses that rely on confidential information - such as customer lists, proprietary recipes, or patentable ideas (which must remain secret until filing) - using AI tools can increase the risk of exposing sensitive information. This could make it harder to keep your data secure in the future or prevent you from registering certain rights.
Who owns IP generated with AI?
AI tools can create pictures, text, music, video and other outputs. If copyright protection is important to you, consider whether using generative AI tools affects that protection. For example, copyright protection for many types of works requires a human author and the extent that you have used AI as a tool can raise complex questions about whether copyright protection applies to what you have created.
Likewise, if IP protection more broadly is important to you, it may be beneficial to keep notes about what you planned, the prompts that you used, and what you chose or edited yourself, so you can clearly distinguish between what you created and what the AI model created. This may be beneficial in the event that you need to provide evidence about the creation and your role in it in the future (e.g. to assist in copyright disputes, legal proceedings or non-copyright IP disputes before IP Australia etc.)
There are many AI tools currently available, and each will have a different terms and conditions (although note that all terms and conditions are subject to law). Ensure that you familiarise yourself with the terms and conditions of your chosen tool to understand who owns the IP of the created works. Some providers may state that you own the result, while others may claim to retain broad rights to store or reuse it. Before using an AI-generated logo or design in your business, it’s important to review the tool’s terms regarding ownership and commercial use.
The laws in this space are also continually evolving so it’s important to keep up to date with any recent court decisions or legislation changes.
It is possible that a logo, brand name, written work or design created using AI may look like someone else’s without you realising. You may want to check whether any proposed name or logo is already used or registered as a trade mark. TM Checker is a free online tool provided by IP Australia that allows you to check the registrability of any potential trade mark.
Risks of errors
If you use AI to help with inventions or technical ideas, you should remember that the outputs may not be correct, nor unique enough to apply for registration. AI tools can produce information that sounds confident but may not be accurate. It is a important to independently verify any information that an AI tool provides you.