While the utility of Generative AI is very clear at this point, the moral, ethical, and legal questions surrounding it are decidedly less so. I’m not a lawyer, and I’m not sure how the many current and future legal battles related to this topic will shake out. Right now, I’m still trying to understand the issue well enough to form a coherent opinion of how things should be. Writing this post is part of my process.
Generative AI needs to be trained on a vast amount of data that represents the kinds of things it will be asked to generate. The connection between that training data and the eventual generated output is a hotly debated topic. An AI model has no value until it’s trained. After training, how much of the model’s value is attributable to any given piece of training data? What legal rights, if any, can the owners of that training data exert on the creator of the model or its output?
A human’s creative work is inextricably linked to their life experiences: every piece of art they’ve ever seen, everything they’ve done, everyone they’ve ever met. And yet we still say the creative output of humans is worthy of legal protection (with some fairly narrow restrictions for works that are deemed insufficiently differentiated from existing works).
Some say that generative AI is no different. Its output is inextricably linked to its “life experience” (training data). Everything it creates is influenced by everything it has ever seen. It’s doing the same thing a human does, so why shouldn’t its output be treated the same as a human’s output?
And if it generates output that’s insufficiently differentiated from some existing work, well, we already have laws to handle that. But if not, then it’s in the clear. There’s no need for any sort of financial arrangement with the owners of the training data any more than an artist needs to pay every other artist whose work she’s seen each time she makes a new painting.
This argument does not sit well for me, for both practical and ethical reasons. Practically speaking, generative AI changes the economics and timescales of the market for creative works in a way that has the potential to disincentivize non-AI-generated art, both by making creative careers less viable and by narrowing the scope of creative skill that is valued by the market. Even if generative AI develops to the point where it is self-sustaining without (further) human input, the act of creation is an essential part of a life well-lived. Humans need to create, and we must foster a market that supports this.
Ethically, the argument that generative AI is “just doing what humans do” seems to draw an equivalence between computer programs and humans that doesn’t feel right to me. It was the pursuit of this feeling that led me to a key question at the center of this debate.
Computer programs don’t have rights1, but people who use computer programs do. No one is suggesting that generative AI models should somehow have the rights to the things they create. It’s the humans using these AI models that are making claims about the output—either that they, the human, should own the output, or, at the very least, that the owners of the model’s training data should not have any rights to the output.
After all, what’s the difference between using generative AI to create a picture and using Photoshop? They’re both computer programs that help humans make more, better creative works in less time, right?
We’ve always had technology that empowers human creativity: pencils, paintbrushes, rulers, compasses, quills, typewriters, word processors, bitmapped and vector drawing programs—thousands of years of technological enhancement of creativity. Is generative AI any different?
At the heart of this question is the act of creation itself. Ownership and rights hinge on that act of creation. Who owns a creative work? Not the pencil, not the typewriter, not Adobe Photoshop. It’s the human who used those tools to create the work that owns it.
There can, of course, be legal arrangements to transfer ownership of the work created by one human to another human (or a legal entity like a corporation). And in this way, value is exchanged, forming a market for creativity.
Now then, when someone uses generative AI, who is the creator? Is writing the prompt for the generative AI the act of creation, thus conferring ownership of the output to the prompt-writer without any additional legal arrangements?
Suppose Bob writes an email to Sue, who has no existing business relationship with Bob, asking her to draw a picture of a polar bear wearing a cowboy hat while riding a bicycle. If Sue draws this picture, we all agree that Sue is the creator, and that some arrangement is required to transfer ownership of this picture to Bob. But if Bob types that same email into a generative AI, has he now become the creator of the generated image? If not, then who is the creator?
Where is the act of creation?
This question is at the emotional, ethical (and possibly legal) heart of the generative AI debate. I’m reminded of the well-known web comic in which one person hands something to another and says, “I made this.” The recipient accepts the item, saying “You made this?” The recipient then holds the item silently for a moment while the person who gave them the item departs. In the final frame of the comic, the recipient stands alone holding the item and says, “I made this.”
This comic resonates with people for many reasons. To me, the key is the second frame in which the recipient holds the item alone. It’s in that moment that possession of the item convinces the person that they own it. After all, they’re holding it. It’s theirs! And if they own it, and no one else is around, then they must have created it!
This leads me back to the same question. Where is the act of creation? The person in the comic would rather not think about it. But generative AI is forcing us all to do so.
I’m not focused on this point for reasons of fairness or tradition. Technology routinely changes markets. Our job as a society is to ensure that technology changes things for the better in the long run, while mitigating the inevitable short-term harm.
Every new technology has required new laws to ensure that it becomes and remains a net good for society. It’s rare that we can successfully adapt existing laws to fully manage a new technology, especially one that has the power to radically alter the shape of an existing market like generative AI does.
In its current state, generative AI breaks the value chain between creators and consumers. We don’t have to reconnect it in exactly the same way it was connected before, but we also can’t just leave it dangling. The historical practice of conferring ownership based on the act of creation still seems sound, but that means we must be able to unambiguously identify that act. And if the same act (absent any prior legal arrangements) confers ownership in one context but not in another, then perhaps it’s not the best candidate.
I’m not sure what the right answer is, but I think I’m getting closer to the right question. It’s a question I think we’re all going to encounter a lot more frequently in the future: Who made this?
Non-sentient computer programs, that is. If we ever create sentient computer programs, we’ll have a whole host of other problems to deal with. ↩
