Microsoft 365 Copilot – What Is It & What Are The Potential Intellectual Property (IP) Risks?

Microsoft is due to release a paid-for artificial intelligence companion, referred to as Copilot.

Currently only available to a small group it is due to be rolled out to a wider audience, imminently. Whilst comparisons will be made with ChatGPT, the functionality of the Copilot tool is (as per Microsoft) quite different.

What are the potential IP risks of Microsoft 365 Copilot?

Both ChatGPT and CoPilot pose challenges for IP. They generate outputs based on inputs from the user (which could infringe third-party rights), with machine learning models that have been trained on publicly available data (which again, could infringe third-party rights).

The resulting outputs could, therefore, infringe third-party copyright through unlicensed use of third-party works (such as text, photos, designs, drawings, and code) in the training and grounding of the AI models and also in the output that is then generated.

In response to concerns, Microsoft has announced a Copilot Copyright Commitment, for its users. In that announcement, Microsoft has stated that, if an allegation is made concerning copyright infringement (as a consequence of the use of Copilot or its outputs), Microsoft will assume responsibility.

Three reasons have been put forward by Microsoft for its approach:

To a certain extent, the policy demonstrates that Microsoft is prepared to stand by its product – and rightly so. After all, it’s not unusual for the most basic of software licences to include an indemnity in favour of the licensee, if the software infringes third-party rights.

But what point two above tells us is that Microsoft is gearing up for a fight on this – given the efficiencies that Copilot is intended to afford to businesses, commercialisation of the tool will no doubt be lucrative. However, if users are repeatedly subject to “cease and desist” notifications arising out of their use of the tool, this has the potential to limit the public’s appetite to use it.

Is the Copilot Copyright Commitment great news all round?

Maybe not.

The Copilot Copyright Commitment is not a ‘get out of jail’ free card. As you would expect, there are certain obligations on the user such as not misusing the tool or using inputs that the user has no rights to – which is fine if the user understands copyright and how this may protect certain works. Whether it is entirely fair for the responsibility of inputs to lay so heavily on the user when utilising a tool that arguably encourages the use of third-party works is something that could be subject to debate.

But putting this to one side, what perhaps is more notable is Microsoft’s commitment to pay the amount of any ‘adverse’ judgments or settlements. This raises the question as to whether Microsoft will pay for all costs associated with the claim against one of its users. Microsoft is yet to confirm this, which means users could remain liable for their legal costs as the copyright policy currently stands.

In addition, as the user you will no doubt remain party to the litigation, whilst Microsoft fights its corner; and it will be Microsoft’s corner that it is fighting because it is looking to influence policies and laws in such a way that benefits Microsoft’s commercial aims.

Whilst those battles rage on, the user remains embroiled in the litigation, potentially with no real sway over its outcome or the arguments made and unable to settle to extract itself and move on with life.