There are three areas where AI, copyright, and Intellectual property should be considered: the content that the AI tool has been trained on, the content that the AI tool generates, and using AI to generate summaries of copyrighted content.

Use of Content to Train AI Models

Many generative AI tools have been trained on copyrighted works often without the permission of copyright holders. Some legal experts have argued that there is a case to be made for fair use, such as in Training Is Everything: Artificial Intelligence, Copyright, and Fair Training and Fair Use: Training generative AI. The arguments they use often revolve around an assertion that it is necessary to conclude that training is fair use to enable this potentially revolutionary new technology.  Creative Commons also argues that this is considered fair use under current copyright legislation, but there are a number of lawsuits where creators are arguing that AI tools are creating unauthorized derivatives.

Also note that OpenStax currently includes this statement at the bottom of every page of its textbooks, in the Citation/Attribution section: “This book may not be used in the training of large language models or otherwise be ingested into large language models or generative AI offerings without OpenStax’s permission.” See an example in the attributions at the bottom of this page. While one may choose to respect this request, it currently is permissible to engage in such activities as inputting, for example, a chapter from an OpenStax text into ChatGPT to, for example,  generate updated content or a chapter summary (see below).

Applying Copyright to Generated Output

Legal decisions and rulings around copyrighting AI generated content have been very clear in the United States. According to the U.S. Copyright Office, AI generated content is not human made and therefore cannot be protected by copyright and thus is in the public domain. In Canada there has not been as definitive legal rulings around this, although the emerging consensus in Canada is that Canadian copyright law will follow closely with the US when it comes to copyright and AI due to the shared international copyright and trades agreements the two countries have with each other.

Using AI to Generate Summaries of Copyrighted Work

It is unlikely that using generative AI to summarize copyrighted content is a violation of copyright as the AI generated summary is machine and not human generated.

AI and Open Licensing

The intersection of AI and open licensing is extremely complex and there is not always agreement as to how, when, or why one can apply an open license when using AI. Getting Started: OER Publishing at BCcampus argues: “As much of the legal consensus around AI generated content suggests AI-created content is not copyrightable, you should not apply a Creative Commons license to AI-generated content as Creative Commons licenses can only be applied to content that is copyrightable.” For more on open licensing, see Units 4 and 8. However, Creative Commons has outlined a variety of ways that its licenses might be used when using AI to create or adapt OER. In Understanding CC Licenses and generative AI, Creative Commons General Counsel Kat Walsh addresses common questions, “while acknowledging that the answers may be complex or still unknown.” The article also includes a flowchart regarding the CC licenses in this context.

Citation Examples

Here are some examples of ways you might cite output that you generate from AI platforms. The major style guides such as MLA, APA, and Chicago Style now include guidance on citing AI generated content, both in text and in the works cited or bibliography.

Example 1
The contents on this page followed by asterisks(*) were adapted from [name of AI platform] output responding to a “[name of prompt],” [Platform version, Date], [AI conversation link]. The remaining original phrases and the organizational structure are by [name of author] and are shared under a [Creative Commons type] license.

Example 2
The content of this [content type – article, book, chapter] was written entirely by [human author name(s)] with AI tools [names of platforms/tool(s) used – Grammarly, Bing Copilot, etc] used for [idea generation, copy-editing, etc] and is shared under a [Creative Commons type] license.

See below links for the official MLA, APA, and Chicago Style guidelines and their examples for creating generative AI citations.

MLA guidelines on citing generative AI
APA Style: How to cite ChatGPT
Chicago Style

General Principles for AI and Open Licensing

As of this writing, many legal questions surrounding AI and Intellectual Property are still being considered. As mentioned above, there are many cases pending in the courts in the U.S. as of this writing (July 2024), and there has been only one formal decision by the U.S. Copyright Office and no new law. There was an Executive Order from the Biden White House, but it does not answer the questions that come up about AI and copyright.

Here is an overview of some principles currently at the intersection of AI and Open Licensing:

• The status of the generative AI materials is, provisionally, clear in the U.S.: they are all born into the public domain, according to the U.S. Copyright Office and one quite specific court decision.
• If those conclusions stand, open educators (in the U.S.) can use generative AI materials as they would any other public domain materials in their adopted/adapted/created OER.
• Since all of the above is still in flux, open educators should exercise caution when using GenAI materials, for example, by including very complete citations/ attributions which can be used later if the law changes.
• Open educators should keep an eye on the outcomes of the many cases about these issues which are in the courts at this time.

In general, content

• solely created by AI is not copyrightable; it is in the public domain.
• containing AI generated elements: only the human created components are copyrightable.
• modified by human creativity is copyrightable as a derivative.