The Times Australia
The Times World News

.

If ChatGPT wrote it, who owns the copyright? It depends on where you live, but in Australia it's complicated

  • Written by Wellett Potter, Lecturer in Law, University of New England
If ChatGPT wrote it, who owns the copyright? It depends on where you live, but in Australia it's complicated

ChatGPT[1] and other generative AI tools which draw on large language models (LLMs) are a hot topic. Released in November 2022 by OpenAI, ChatGPT is a chatbot – it generates text output refined through user prompts.

What makes it special is just how sophisticated and impressive that output is[2]. The stratospheric rise of generative AI tools has sparked much discussion over what it might mean for the future of education[3], the job market[4], humanity[5] and society as a whole[6].

By now, you’ve likely interacted with a generative AI. But who owns copyright to the output, and how does copyright law apply?

Read more: Calls to regulate AI are growing louder. But how exactly do you regulate a technology like this?[7]

Text output and the law

ChatGPT is powered by an LLM – a machine-learning algorithm which processes vast datasets, including text, websites, news articles and books. Through the use of billions of parameters, ChatGPT statistically analyses complex language structures and patterns[8] to produce the output.

Some people might think OpenAI – the company responsible for ChatGPT – would have an authorship right in any output (the generated text), but this is not so. OpenAI’s terms[9] assign the right, title and interest in output to a user. Anyone who uses such AI tools needs to know the copyright implications of generating output.

Putting aside ethical and moral issues regarding academic integrity[10], there are many copyright implications surrounding LLMs.

For example, when you use ChatGPT to produce output, under Australian law, would you own the copyright of that output? Can AI such as ChatGPT be considered a legal joint author of any LLM output? Do LLMs infringe others’ copyright through the use of data used to train these models?

Read more: No, the Lensa AI app technically isn’t stealing artists' work – but it will majorly shake up the art world[11]

Do you own your ChatGPT output?

Under Australian law, because the output is computer-generated code/text, it may be classified as a literary work for copyright purposes.

However, for you to own copyright in ChatGPT output as a literary work, requirements known as “subsistence criteria” must also be satisfied. When considering AI processes in light of the subsistence criteria, the analysis becomes challenging.

The most contentious subsistence criteria in the context of LLMs are those of authorship and originality. Seminal Australian cases dictate a literary work must originate through an author’s “independent intellectual effort[12]”.

To determine potential copyright in ChatGPT output, a court would examine the underlying processes of creation in detail. Hypothetically, when considering how LLMs learn, although people prompt AI, a court would likely deem this prompting to be a separate, precursory act to the actual creation of the output. The court would likely find the output is produced by the AI. This would not meet the criteria for authorship, because the output was authored by an AI instead of a human.

A screenshot of a user interacting with ChatGPT and asking to write a poem in the style of Robert Burns
ChatGPT 3.5 claims that a machine-generated work is not subject to copyright protection. The Conversation

Also, the output is unlikely to adequately express a person’s “independent intellectual effort” (another subsistence criterion) because AI produces it. Such a finding would be similar to the ruling in a seminal case about a computer-generated compilation[13]. There, a valuable Telstra database was not protected by copyright due to lack of establishment of human authorship and originality.

For these reasons, it’s likely copyright would not come into effect on ChatGPT output as a literary work produced in Australia.

Meanwhile, under UK law, the result could be different. This is because UK law makes provision for a person who makes the arrangements for a computer-generated literary work[14] to be considered an author for copyright purposes.

Can you be a joint author with ChatGPT?

In recent years, human authorship has been challenged in court a few times overseas, including the famous monkey selfie case in the United States[15].

In Australia, a work must originate with a human author, so AI doesn’t qualify for authorship. However, if AI were ever to achieve something akin to its own version of sentience[16], AI personhood debates will unleash many issues, including whether AI should be considered an author for copyright purposes.

Assuming one day AI can be considered an author, if a court was assessing joint authorship between a person and AI, each author’s contribution would be examined in detail. A “work of joint authorship[17]” states that each author’s contribution must not be separate from the other. It’s likely that a person’s prompting of the AI would be deemed separate to what the AI system then does, so joint authorship would probably fail.

Do LLMs infringe on copyright?

A final issue is whether LLMs infringe others’ copyright through accessing data in training. Such data may be copyright-protected material. This requires an examination of the LLM training and output. Is a substantial portion of copyright-protected material reproduced? Or, is mass data synthesised without substantial reproduction?

If it is the earlier option, infringement may have occurred; if it’s the latter, there would be no infringement under current law. But even if output reproduces a portion of copyright-protected material, this might fall under a copyright exception. In Australia, this is called fair dealing.

Read more: Explainer: what is 'fair dealing' and when can you copy without permission?[18]

Fair dealing permits particular purposes, such as research and study. In the US, similar fair use exceptions are broader in scope, so LLM output may be caught by this. Also, the European Union has a copyright exception for text and data mining[19] which permits the use of data to train LLMs unless expressly prohibited by a rights-holder.

Seeing as AI is here to stay, a final point to ponder is whether amendments should be made to the Australian Copyright Act[20] to allow an AI user to be considered an author for copyright purposes. Should we amend the law by following in the United Kingdom’s footsteps, or implement a text and data mining exception similar to that in the EU?

As AI initiatives continue advancing, Australian copyright law will likely grapple with these issues in the coming years.

References

  1. ^ ChatGPT (openai.com)
  2. ^ sophisticated and impressive that output is (theconversation.com)
  3. ^ education (theconversation.com)
  4. ^ job market (theconversation.com)
  5. ^ humanity (theconversation.com)
  6. ^ society as a whole (theconversation.com)
  7. ^ Calls to regulate AI are growing louder. But how exactly do you regulate a technology like this? (theconversation.com)
  8. ^ statistically analyses complex language structures and patterns (www.zdnet.com)
  9. ^ OpenAI’s terms (openai.com)
  10. ^ academic integrity (www.theguardian.com)
  11. ^ No, the Lensa AI app technically isn’t stealing artists' work – but it will majorly shake up the art world (theconversation.com)
  12. ^ independent intellectual effort (www.mondaq.com)
  13. ^ computer-generated compilation (www.claytonutz.com)
  14. ^ who makes the arrangements for a computer-generated literary work (www.legislation.gov.uk)
  15. ^ famous monkey selfie case in the United States (www.wipo.int)
  16. ^ to its own version of sentience (theconversation.com)
  17. ^ work of joint authorship (www5.austlii.edu.au)
  18. ^ Explainer: what is 'fair dealing' and when can you copy without permission? (theconversation.com)
  19. ^ copyright exception for text and data mining (academic.oup.com)
  20. ^ Copyright Act (www.legislation.gov.au)

Read more https://theconversation.com/if-chatgpt-wrote-it-who-owns-the-copyright-it-depends-on-where-you-live-but-in-australia-its-complicated-202516

Times Magazine

Headless CMS in Digital Twins and 3D Product Experiences

Image by freepik As the metaverse becomes more advanced and accessible, it's clear that multiple sectors will use digital twins and 3D product experiences to visualize, connect, and streamline efforts better. A digital twin is a virtual replica of ...

The Decline of Hyper-Casual: How Mid-Core Mobile Games Took Over in 2025

In recent years, the mobile gaming landscape has undergone a significant transformation, with mid-core mobile games emerging as the dominant force in app stores by 2025. This shift is underpinned by changing user habits and evolving monetization tr...

Understanding ITIL 4 and PRINCE2 Project Management Synergy

Key Highlights ITIL 4 focuses on IT service management, emphasising continual improvement and value creation through modern digital transformation approaches. PRINCE2 project management supports systematic planning and execution of projects wit...

What AI Adoption Means for the Future of Workplace Risk Management

Image by freepik As industrial operations become more complex and fast-paced, the risks faced by workers and employers alike continue to grow. Traditional safety models—reliant on manual oversight, reactive investigations, and standardised checklist...

From Beach Bops to Alpine Anthems: Your Sonos Survival Guide for a Long Weekend Escape

Alright, fellow adventurers and relaxation enthusiasts! So, you've packed your bags, charged your devices, and mentally prepared for that glorious King's Birthday long weekend. But hold on, are you really ready? Because a true long weekend warrior kn...

Effective Commercial Pest Control Solutions for a Safer Workplace

Keeping a workplace clean, safe, and free from pests is essential for maintaining productivity, protecting employee health, and upholding a company's reputation. Pests pose health risks, can cause structural damage, and can lead to serious legal an...

The Times Features

Tricia Paoluccio designer to the stars

The Case for Nuturing Creativity in the Classroom, and in our Lives I am an actress and an artist who has had the privilege of sharing my work across many countries, touring my ...

Duke of Dural to Get Rooftop Bar as New Owners Invest in Venue Upgrade

The Duke of Dural, in Sydney’s north-west, is set for a major uplift under new ownership, following its acquisition by hospitality group Good Beer Company this week. Led by resp...

Prefab’s Second Life: Why Australia’s Backyard Boom Needs a Circular Makeover

The humble granny flat is being reimagined not just as a fix for housing shortages, but as a cornerstone of circular, factory-built architecture. But are our systems ready to s...

Melbourne’s Burglary Boom: Break-Ins Surge Nearly 25%

Victorian homeowners are being warned to act now, as rising break-ins and falling arrest rates paint a worrying picture for suburban safety. Melbourne residents are facing an ...

Exploring the Curriculum at a Modern Junior School in Melbourne

Key Highlights The curriculum at junior schools emphasises whole-person development, catering to children’s physical, emotional, and intellectual needs. It ensures early year...

Distressed by all the bad news? Here’s how to stay informed but still look after yourself

If you’re feeling like the news is particularly bad at the moment, you’re not alone. But many of us can’t look away – and don’t want to. Engaging with news can help us make ...