In today's rapidly changing technological landscape, artificial intelligence (AI) is making headlines and being discussed constantly. To be sure, AI provides a powerful tool to nonprofits in creating content and exploiting for countless cost-effective purposes. As nonprofit executives, you may be wondering how AI intersects with intellectual property and data privacy law, and how it could affect your organization. While the full extent of the implications will only be fully understood after some history with the use of AI, some of the issues are already predictable.

Copyright Concerns

One of the main concerns when it comes to AI and intellectual property is how copyright laws impact the use of AI. In the copyright realm, there are two prominent issues—indeed, two sides of the copyright coin—for nonprofits to consider:

Ownership of AI-created content: If your nonprofit uses AI to create content, you need to clarify who owns that content; it will be difficult to protect that content against use by third parties. That is because, under United States law (and the law of nearly all other jurisdictions), copyright is only recognized in works created by human beings. AI-generated content is not eligible for copyright protection. As such, one would not be able to protect against third parties who copy such content and use it for their own purposes.

The best defense against such taking, then, would be to add human creation into the AI-generated work. While any copyright protection would only vest in those human-authored additions/revisions, to the extent a third party’s copying included those changes, it could support a claim of copyright infringement.

Copyright infringement: AI's ability to make copies of data, including copyrighted material, raises concerns about potential copyright infringement. For example, AI large language models learn by analyzing vast amounts of data from the internet, which may include copyrighted material. In undertaking such training, they necessarily copy those materials, though the copying is not long-term and the copies are discarded. While fair use may be a defense to that kind of copying, it is a complex legal issue, and you may need to be prepared for potential litigation.

That said, the issues with training copies are more of a concern for the owners of the AI systems. But there is another consideration. We are starting to see issues where AI systems are “creating” content that seems suspiciously similar to existing content. To the extent your nonprofit uses an AI system to create content (text, images, videos, etc.) that you post on your site or otherwise distribute, where that content actually copies protected third-party works, your nonprofit could be liable for copyright infringement. 

Here, it is important to look at the agreements governing your use of the system. Just as you would expect an artist you hire to stand behind their work, you could try to have the owner of the AI system provide warranties against infringing creations. It is certainly unlikely that off-the-shelf products are going to include such protections in their user agreements. But as AI business develops, there will likely be bespoke work done for clients, and in those relationships such contractual protection could be available.

Right of Publicity and Privacy Concerns

Another area in which the use of AI could present issues is that of the rights of publicity and privacy. The right of publicity protects individuals' rights to control their name, image, and other identifiers for commercial purposes. One could imagine a scenario where AI-created content includes such materials without the authorization of the individual identified.

Additionally, AI systems could collect personal information of individuals and lead to the company employing such systems storing and using such personal information without authorization from such individuals.

It is also possible for an AI system to re-identify personal information from data that was previously de-identified (as a matter of course or upon a request of an individual).

Finally, AI systems may scrape personal data to use in connection with training, and then such information may be used otherwise without authorization.

To safeguard your nonprofit's reputation and minimize legal pitfalls, consider the following:

• Carefully review content for potential issues with the identification of individuals;

• Ensure your privacy policy accurately reflects the data collected and used by AI. If AI gathers additional information, update your policy accordingly to be transparent with your audience.

• Implement gatekeeping measures to protect sensitive donor and employee data. Techniques like CAPTCHA can help keep AI from scraping information from your website.

Of course, these are just a few of the issues we expect to arise in IP and data privacy from the use of AI systems. What is clear, though, is that it is essential that nonprofits are vigilant as to how AI impacts your organization's intellectual property and privacy practices. While AI offers exciting possibilities for nonprofits, it also poses legal challenges that require careful consideration. Stay informed, work with legal and IT professionals, and update your policies to ensure ethical AI usage and protect your nonprofit's reputation and avoid legal issues. By understanding the implications of AI and adopting responsible practices, your nonprofit can harness the power of technology while safeguarding your stakeholders' interests.

Related content: Listen to the EO Radio Show Podcast: Nonprofit Data and Artificial Intelligence