May 10, 2023
With ChatGPT estimated to have reached 100 million monthly active users just two months after launch – incidentally making it the fastest-growing consumer app in history – one has to consider the implications of using AI-based tools – both in terms of increased productivity, automation, work quality and abiding by the law.
Exciting as the output is – and I’m in no doubt the output will only improve – in digital marketing, we must remember that no-one knows a brand better than the team that works on it, and nothing can differentiate work better than our own talents. That’s not to say we shouldn’t be using AI to assist our work – we all likely do in some capacity already – whether that’s for automated project set up, keyword research or idea generation, for example. In fact, according to Influencer Marketing Hub’s Artificial Intelligence (AI) Marketing Benchmark Report 2023, 61.4% of respondents have so far used AI in their marketing operations, and by 2030, 70% of companies are likely to adopt AI technology in some format – backed by research from the Mckinsey Global Institute.
With this in mind, this blog considers key aspects to be aware of when using AI in digital marketing – based on tests we have conducted here at NORTH, as well as the legal literature available at the time of writing. AI used right can bolster your strategy, ideation and content creation no end. Used incorrectly, and you may just have a lawsuit or two on your hand.
As stated in GOV.UK’s: ‘Artificial Intelligence and Intellectual Property: copyright and patents’:
‘’In the UK, copyright law protects original literary, dramatic, artistic and musical works, as well as films, sound recordings, broadcasts and published editions. For a work to be original it must be the author’s own intellectual creation. This means the author has made free and creative choices and the work has their “personal touch”. Copyright in a literary, dramatic, artistic or musical work lasts for the author’s lifetime plus a further 70 years. For other works the term of protection differs.
A copyright work may be created by a human who has assistance from AI. If the work expresses original human creativity it will benefit from copyright protection like a work created using any other tool. An example of this could be where a camera contains AI that helps someone take a photograph. If the photograph expresses the creativity of the photographer, it will be protected as an artistic work, regardless of whether AI assisted them.’’
Let’s take a look at what this means, per content type…
You may be surprised to learn that the UK is one of the few countries to protect computer-generated work. Protection lasts for 50 years from the date the work was created. This therefore suggests that if you use AI to create written content – for example – then you own the content created.
This offers benefits in the way of:
We’d recommend:
It should be noted that as more companies take up AI technology, it is very possible that multiple companies could use AI to write about the same topics. For example, if you work in the travel industry and were to use AI to write a piece of content on places to visit in Rome, it’s possible that other travel brands could do the same – not to mention tourist boards, online travel magazines and travel agents. To avoid any issues with duplication or plagiarism that could impact your credibility and ranking positions, we advise that your team members take care with their work and keep USPs, brand benefits and search intent in mind when adding to AI-generated content, to help differentiate it and showcase your value.
This thinking is backed up by ChatGPT’s own admissions:
“It is possible for ChatGPT to generate the same or similar content for multiple users. This can happen if the inputs given to ChatGPT are similar or if the language model is asked to generate content on a similar topic. However, it is important to note that ChatGPT is a language model and not a person, and it does not have personal motivations or biases. The outputs generated by ChatGPT are based on the input it receives and the patterns it has learned from its training data. As a result, the outputs generated by ChatGPT can sometimes be similar, but they are not necessarily the same.”
You also need to consider where the content comes from, and is it original work or possibly copyrighted?:
“ChatGPT generates new content based on the input it receives, and does not directly copy existing work on the internet. However, the text generated by ChatGPT can sometimes include information or language that is similar to existing content on the internet. This is because ChatGPT is trained on a diverse range of internet text and has learned patterns and relationships between words and phrases. As a result, the output generated by ChatGPT may resemble or draw upon existing content, but it is not a direct copy.”
To ensure the content you create is as original as possible, you could also use online plagiarism checker tools such as Dupli checker
The current copyright law surrounding broadcasts, films, sound recordings and published editions differs slightly, as these do not need to be original. Should AI create these types of work, entrepreneurial rights would apply. For example, if AI generates a song, then the producer of the recording of the song would have a sound recording right. This is evidenced by Heart On My Sleeve – a song that simulates Drake and The Weeknd’s voices and created using AI software – being pulled from Apple Music, Spotify, Deezer and Tidal. Universal Music Group claims the song violates copyright law and that they have a “legal and ethical responsibility” to prevent the use of services which could harm artists.
Therefore, you need to tread very carefully should you ever wish to use broadcasts, film clips, sound recordings or published works in your company’s output.
The current law surrounding AI-generated images is somewhat mixed. On the one hand, you have tools such as DALL.E stating the following:
‘’Subject to the Content Policy and Terms, you own the images you create with DALL·E, including the right to reprint, sell, and merchandise – regardless of whether an image was generated through a free or paid credit.’’
On the other hand, there is currently legal action being taken against Stability AI – due to images being sourced from the likes of Getty Images:
‘’Stability AI unlawfully copied and processed millions of images protected by copyright… to the detriment of the content creators” and “chose to ignore viable licensing options and long‑standing legal protections”, Getty alleges.
Therefore, should you ever wish to use AI-generated images, you will need to check:
What’s more, if you ever wanted images of specific people – e.g. Rihanna using X brand – you would most certainly need permission from the celebrity and brand in question, and you should therefore keep this thinking in mind before unlawfully using these tools.
Overall – and for now – it may be best to avoid using image AI tools commercially – unless you can meet the above requirements.
The UK protects databases, and database rights protects contents for 15 years. Although a database doesn’t have to be original to qualify for database rights, there does need to have been a considerable investment in, ‘’obtaining, verifying or presenting the data. If AI generates a database that fulfils these criteria, then there may be a database right associated with it.’’ (GOV.UK).
You would be infringing on a database right if you were to use any part of the contents of a protected database without permission or consent from its owner.
Therefore, you would need to be certain that any AI-generated databases were created with the author’s knowledge of how their data was being utilised. GDPR regulation should also be taken into account, as well as data protection. As stated in ICO’s Guidance on AI and data protection:
‘’When you use AI to process personal data, you must ensure that it is lawful, fair and transparent. Compliance with these principles may be challenging in an AI context.
AI systems can exacerbate known security risks and make them more difficult to manage. They also present challenges for compliance with the data minimisation principle.
Two security risks that AI can increase are the potential for:
By default, the standard practices for developing and deploying AI involve processing large amounts of data. There is a risk that this fails to comply with the data minimisation principle. A number of techniques exist which help both data minimisation and effective AI development and deployment.
The way AI systems are developed and deployed means that personal data is often managed and processed in unusual ways. This may make it harder to understand when and how individual rights apply to this data, and more challenging to implement effective mechanisms for individuals to exercise those rights.’’
These are key aspects to bear in mind when it comes to AI-based databases.
Plagiarism involves claiming someone else’s work as your own – whether that’s using their ideas without acknowledging their contribution, or copying their work and not giving credit to the original source. A type of fraud, it can lead to lawsuits.
When it comes to plagiarism and AI, the rules differ on a country-by-country basis:
If your business works outside of the UK you’ll need to be careful, ensuring that you follow each countries’ laws on AI and that you appropriately cite the work.
It should also be noted that – when using AI tools to create content (for example) – that the output produced doesn’t plagiarise any work already online too. There are AI tools out there that analyse top performing pages for inputted keywords, providing you with their content. This would need to be rewritten, as this content still belongs to those brands.
UK patent law currently states that if you were to use AI to create tools, then you would be deemed the inventor in most cases. The government is in fact keen to support innovation and investment in research and development – regardless of tool sophistication. They’re aware that if AI-devised tools could not be patented, there could be reduced investment in this important technology. They want to encourage the creation of new AI tools and systems, without restricting competition or innovation by third parties. Therefore, if you were ever to create a tool with AI, or had AI functionality, it is very likely that your company would be deemed the creator, so long as it was not an exact copy of another tool.
With AI expanding at a rapid rate, and the potential for it seemingly endless, it’s key that companies looking to incorporate AI into their business functionality do so keeping the above in mind, while also not forgetting the importance of originality, quality and human input.
For more information on AI – as well as the fantastic content, SEO and digital PR services we offer here at NORTH, please don’t hesitate to get in touch with us today. We’d love to hear from you!
•Please note that AI technology and rules are developing rapidly, and this guidance is correct at the time of writing.
