Might An Output From An AI Infringe A Third Party's Rights, And Who May Be Liable?

As described in our article, parties training generative AIs on data obtained from third parties are at risk of infringing the rights of those third parties, on the basis that the data used in the training set was copied, without authorisation.

This also leads to questions about whether the output from such an AI may infringe a third party's rights. Getty Images have asserted copyright infringement against Stability AI, both on the basis that Stability AI's use without authorisation of Getty's images in its training set infringes its rights, and because (Getty say) given the allegedly infringing input data, outputs using that data must also infringe.

Another illustrative dispute is the on-going US class action lawsuit against Microsoft, OpenAI and GitHub regarding their AI-powered programming assistant GitHub Copilot. This AI tool is alleged to reproduce open source code which it has been trained upon without crediting to its developers as required under