AI: some legal and ethical issues
the owner of any content featured in the original sources that had been collated by generative AI. Such an act does raise concerns, such as copyright infringement. However, the act of submission does not change the fact that P has not deprived the authors of anything, therefore cannot be charged for theft. As a result, the contemplation of such submission cannot constitute ‘ordinary attempted theft’. Nevertheless, contemplating the submission of an AI-written essay can still be deemed an attempted crime if the act of submission is an indictable or either-way charged as indictable offence (albeit not theft). 5 Indictable offences are the most serious criminal offences and must be tried in the Crown Court; either-way offences can be tried in either the Crown Court or Magistrates Court depending on seriousness. If the former is the case, then the offence is known as either-way charged as indictable. 6 As mentioned previously, it is logical first to analyse whether such an act is copyright infringement, given that submission of the essay does imply ownership over any content featured in the original sources that had been collated by generative AI. Such content may indeed include original literary work which would automatically be under copyright protection. 7 In this case, copyright infringement would qualify as an either-way 8 charged as indictable offence due to the level of complexity 9 added by AI. Under the Copyright, Designs and Patents Act 1988, copyright infringement is committed when a person carries out any of the copyright owner’s exclusive rights to the work without their permission. These rights include the right to copy, issue copies, rent or lend, perform, show, or play, communicate or adapt the copyrighted work. In the context of submitting an AI-written essay, P would be infringing copyright by copying ‘ in relation to a literary . . . work ’ in terms of ‘ the work as a whole or any substantial part of it ’ . Given the nature of generative AI, the latter – ‘ a substantial part ’ – would be highly likely; furthermore, the notion of ‘ substantial ’ may be satisfied even if the infringement involves the copying of a small but significant part of the original author’s intellectual creation. 10 Overall, therefore, the act of submitting an AI-generated essay is copyright infringement. However, the possibility of contemplated submission then amounting to ‘ attempted copyright infringement ’ is, in reality, an impossible matter. Currently, in the UK, there is no existing legislation on ‘ attempted copyright infringement ’ , therefore such an offence cannot be charged. Consequently, it may be worth considering a different indictable or either-way charged as indictable offence. Given that the act of submitting an AI-written essay has implications of deception for some kind of personal gain, it seems logical to explore the notion of fraud. In the same vein as copyright infringement, fraud would also qualify as an either-way 11 charged as indictable offence due to the level of complexity added by AI.
5 Criminal Attempts Act 1981 (c.47). 6 Criminal Law Act 1977 (c.45).
7 Copyright, Designs and Patents Act 1988 (c.48). 8 Cordell, ‘ Copyright Litigation in the UK: Overview ’. 9 Stuart Miller Solicitors, ‘ What Is an Indictable Offence in the UK? ’ 10 Pinsent Masons, ‘ UK Copyright Law: The Basics ’. 11 Sentencing Council, ‘ Fraud ’
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