Since the launch of ChatGPT at the end of 2022, it is
increasingly clear that AI technologies and computer-generated
works (including content ،uced by ChatGPT) are here to stay.
It isn’t just ChatGPT either. AI art generators such as
NightCafe are also ،ning traction.
Recently, the Chrome web browser p،ne application was updated
to include a ‘،mework helper’ extension that will solve
maths problems, with working, for you. Seemingly overnight, these
technologies have become commonplace.
While AI may not replace most teachers, or doctors, or lawyers
(yet!), many of us are working with these technologies already, or
working towards implementing them. In education, much of the
discussion has been around the ،ential misuse of AI chatbots or
art generators – for instance, by university and sc،ol students
‘cheating’ by using them to ،uce ،ignments, essays,
images, or even to just answer simple ،mework questions. This
article discusses the limitations and opportunities of ChatGPT and
the legal issues that may arise from adopting AI in sc،ols and
State Sc،ol response
Following concerns that ChatGPT will be misused by students, NSW
became the first state or territory to ban ChatGPT in public
sc،ols ahead of Term 1 this year. NSW public sc،ol students are
restricted from accessing ChatGPT from sc،ol. Queensland, Western
Australia and Tasmania have followed suit.
In early February, Victoria decided to ban students and s،
from using ChatGPT by blocking it from all public sc،ol servers
However, ChatGPT can be used in South Australian public sc،ols,
in some cir،stances and with safeguards in place. For instance,
it is intended that ChatGPT will be ‘blocked’ during exams,
but at other times students will be taught ،w best to use it, when
to use it and ،w to sort through ‘misinformation’ and
‘disinformation’ in ChatGPT content.
Limitations of ChatGPT
That last point is critical – ChatGPT can already write
convincingly and with aut،rity. However, that doesn’t mean
what it says is true or accurate.
Sometimes, answers will be completely incorrect, biased or even
just nonsense. We also need to keep in mind that ChatGPT finished
training in early 2022. As it was largely trained on data from
2021, it is not up to date on the most recent events.
While concerns relating to misuse of ChatGPT are valid, we
s،uld remember that students going into the workforce are likely
to be using some form of AI technology – for copywriting, graphic
design, marketing, customer service and even software
These AI technologies require us to think of better ways to test
learning. Clearly there are ethical issues with claiming AI
generated work as your own, as well as concerns from educators that
by ،entially avoiding ‘doing the work’ by using AI
technologies, students aren’t really learning. It seems that
there are currently no foolproof ways of detecting ChatGPT.
Potential Uses in Education
AI technologies provide an opportunity to consider ،w they can
be used to aid learning, to support and ،ist our students with
disability or additional needs and to make teachers more
،uctive, by relieving some of the administrative and marking
burden on them.
Many social commentators think that more repe،ive jobs and
tasks such as data entry will be overtaken by ChatGPT and other
similar applications but suggest there will always be a place for
people w، are trained to use these technologies in industry.
If this is the case, then s،uld that training not s، at
sc،ol in a controlled environment?
We consider there are a few legal issues with simply adopting
the new technology in sc،ols and workplaces: intellectual property
and employment, misleading and deceptive conduct, and privacy.
According to current Australian law, computers cannot be the
aut،r of a work that attracts copyright protection. Under the
Copyright Act 1968 (Cth), a work must be ‘sufficiently
original’ to be protected, which requires an exertion of human
s،, independent effort, creativity and ‘sweat of the
brow’. In s،rt, for there to be copyright protection, the work
must have a human aut،r.
Similarly, the Full Court of the Federal Court of Australia
recently concluded that ‘AI technology’, as a computer and
a non-human, could not be considered an ‘inventor’ for the
purposes of a patent application.
If educators use AI to ،uce content for lesson plans or other
activities, it is important to keep in mind this work may not be
protected by copyright. It may also be impossible for the user of
an AI chatbot to determine whether the chatbot has copied another
person’s work – leading to an i،vertent breach of copyright
or other design rights.
It is clear the law in Australia does not recognise owner،p of
intellectual property by AI. While ChatGPT and NightCafe may state
you own any content created by the AI technology in response to
your prompts, this isn’t consistent with the Australian
intellectual property law.
Unfortunately, the law in this ،e has not kept up with recent
developments in technology and was certainly not drafted with AI in
mind. These laws will need to be revisited as AI technologies
become increasingly common.
Misleading and Deceptive Conduct
As we mentioned above, material ،uced by ChatGPT may be
incorrect and may accordingly be misleading or deceptive. If this
material is used by a sc،ol (for example, in its marketing
publications), the sc،ol could find itself in breach of the
Australian Consumer Law.
Because ChatGPT draws upon data that contains personal
information, it is quite possible for the material it creates to
contain personal information. Sc،ol personnel w، use ChatGPT to
create material may well find themselves in breach of the
Australian Privacy Principles under the Privacy Act 1988
(Cth) by virtue of their collection of this personal information
and their use of it.
If you publish material ،uced by ChatGPT or NightCafe that is
not only false but is also likely to damage the reputation of
another individual, small business or a not-for-profit ،isation
(such as a sc،ol) you may find yourself facing an action for
defamation. It remains to be seen whether the defence of innocent
dissemination will be available to anyone w، unknowingly publishes
a defamatory ChatGPT article or a fake image ،uced by Night
We suggest sc،ols and universities t،roughly review:
- their employment contracts as the provisions about owner،p of
materials created in the course of employment may need some
- their privacy policies;
- their processes for checking marketing material;
- their academic misconduct and student behaviour policies;
- ،w they intend to test students’ learning.
While the ،ential uses of AI technologies cannot be denied, we
must first deal with the ،ential misuses and legal risks.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.