Can I use AI-generated content commercially?

The explosion of Artificial Intelligence (AI) has outpaced the law. In Australia, the legal status of AI-generated work is currently in a “grey zone” that businesses must navigate carefully.

1. The Human Authorship Rule

In Australia, for a work (text, image, code) to be protected by copyright, it must have been created through the “independent intellectual effort” of a human author.

• Case Law: The High Court has previously ruled that work produced by a computer program without sufficient human intervention is not protected by copyright.¹
• The Risk: If you use AI to create your logo or write your book, a competitor might be able to copy it, and you may find it difficult to sue them for copyright infringement because you don’t “own” the copyright.

2. Terms of Service

Even if the law is unclear, the contract you have with the AI provider (OpenAI, Midjourney, Anthropic) matters.

• OpenAI (ChatGPT): Generally assigns all its interest in the output to the user, allowing commercial use.
• Midjourney: Rights vary depending on whether you have a paid subscription or a free account.
• Warning: Most AI providers include “indemnity clauses” where you agree to pay their legal fees if the AI output infringes someone else’s copyright.

3. The Risk of Infringement

AI models are trained on billions of existing works. If the AI produces an output that is “substantially similar” to a human-created work it was trained on, you could be sued for Copyright Infringement, even if you didn’t know the original work existed.

Tips for Businesses:

• Document the Prompting: Keep records of the human effort involved in refining the AI output.
• Human Review: Always have a human significantly edit or “transform” AI output to increase the chances of establishing human authorship.
• Disclosure: Be transparent with clients if you are using AI to deliver their projects.

Related Topics

• Managing AI Risks in Business
• Cybersecurity Policies
• Technology Law Practice Area

Protect Your IP

We help businesses draft “AI Usage Policies” and review software licenses to ensure their intellectual property is not being accidentally leaked or lost to the public domain.

Using AI in business? Contact Bell & Senior today. Call (07) 5532 8777.