Artificial intelligence is speeding up software development
Artificial intelligence (AI) has taken the world by storm and is becoming a common accelerator also in software development. Although AI in general is not something entirely new, with its roots reaching to the 1950s, generative AI has been soaring since the first commonly known large language models (LLMs) were launched a few years back. Generative AI tools are trained with content often referred to as training data (input) and they generate new content (output), such as software code, based on the user’s command, a prompt. The output may resemble human-generated text, pictures, sounds, videos – or software, for that matter.
From the legal perspective, generative AI raises various intellectual property right related questions in the context of software development, which are roughly divided into three main categories:
- IPRs in the input code of AI tools;
- IPRs in the AI (software) tools themselves, and IPR indemnity protection provided by the AI tool’s licensor against third party IPR infringements; and
- IPRs in the AI-generated output code, and specifically, whether the output may infringe third party IPRs, and whether the output may be eligible for IPR protection, in the first place.
Use of free and open source software as the AI tools’ training data
The training data used for teaching generative AI tools in software development often consists of an enormous amount of code, usually free and open source software (FOSS) simply because it is freely available on the internet under license terms which permit running the program for any purpose (including the training of AI tools), while simultaneously granting rights to copy, modify and distribute the code. Despite the seemingly unrestricted nature of FOSS, it is important to note that the use of FOSS may be subject to a wide range of license conditions that must be complied with when the code is distributed, ranging from copyright notice requirements to source code distribution and the so-called copyleft effect, potentially also consuming the proprietary code under the FOSS license. While the new section 13b of the Copyright Act (and equivalent Copyright Act sections in other European Union jurisdictions in accordance with the relevant directive) also authorizes the reproduction of certain copyrighted content for AI data mining purposes in the absence of an express reservation of the right by the copyright holder, it does not allow further distribution of the content. In turn, FOSS licenses by definition also allow further distribution of the code for any purpose; provided, of course, that the FOSS license conditions are met in each stage of (re)distribution.
