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China: Artificial Intelligence: Can AI-created works be copyrighted?


Our summer article talked about the judgment of the Beijing Film Law Firm v Baidu Network Technology Co., Ltd. (hereinafter Film and Baidu) made by Beijing Internet Court and discussed in detail whether AI-created works are copyrightable or not. In the judgment, it was held that, only when a piece of work possessed ingenuity in itself and was created by a natural person, could it be deemed as a "work" in the sense of the Copyright Law and be protected as such. Since the figures in the article involved in the case were created by AI software instead of a natural person, they could not be protected under the Copyright Law; however, the text portion of the article could be protected.

Recently, the Shenzhen Nanshan District Court (hereinafter Nanshan Court) issued a new judgment for the copyright infringement dispute between Shenzhen Tencent Computer System Co., Ltd. (hereinafter referred to as Tencent Corporation) and Shanghai Yingxun Technology Co., Ltd. (hereinafter Yingxun Corporation). In this judgment, Nanshan Court advanced the judgment of the Beijing Internet Court and determined copyright infringement for AI-created works. This judgment provided new thought around copyright protection of AI-created works.

Dreamwriter was an intelligent writing assistance system based on big data and algorithms, and was developed by Tencent. Tencent had used the Dreamwriter intelligent writing assistant to create about 300,000 articles per year. One of the articles created by the Dreamwriter was a financial report (hereinafter involved article) entitled Noon Review: Shanghai Index Slightly Rise by 0.11% and Closed at 2691.93 points, Leading Sectors including Telecommunication Operation, Oil Exploration, etc. The involved article was first published on the "finance-stock" website of Tencent, with the signature "this article was automatically written by Tencent Robot Dreamwriter" at the end of the article. Yingxun Corporation copied the involved article and re-published it on its website the Home of Internet Loan, without the permission of Tencent Company.

Based on the above facts, the Nanshan Court pinpointed two focuses of dispute: firstly, whether AI-related works could be works under the Copyright Law and secondly, whether Tencent Corporation, which hosts the creation of the involved article, is entitled to be a copyright owner.

Regarding the first issue, the Nanshan Court held that the involved article was generated by the staff of the Tencent team using Dreamwriter software, and met the formality requirements for a piece of literary work. Its content reflected the selection, analysis and judgment of relevant stock market information and data the morning of that day. The article possessed ingenuity in view of its structure and expression. The involved article should come from the personal choices and arrangements of the creators, and the Dreamwriter software was a tool used by the creators during the creation. It satisfied the protection requirements for literary works under the Copyright Law, and thus should be protected as such.

Regarding the second issue, the Nanshan Court held that the involved article was created by the Tencent team with intelligence and labour. It reflected the demand and intention of Tencent Corporation for finance-stock review articles, and thus it was a piece of legal-person-created work of Tencent Corporation.

This judgment was the first one which explicitly confirmed the protection of AI-created works under the Copyright Law. This judgment acknowledged the contribution of human intellectual labour in the process of generating AI-created works, and protected some AI-related works which met certain requirements of the Copyright Law. It will definitely encourage people to create AI-related works and urge the dissemination of AI-related works.

However, some copyright issues connected to AI-related works are still left open in the judgment.

Firstly, the judgment fails to provide a standard for determining copyrightable AI-created works.

Specifically, this judgment acknowledged the ingenuity of the "involved article", and deemed that it originated from the personal choices and arrangements of the creators. Therefore, the judgment held the involved article was copyrightable. The judgment tried to provide copyright protection for some AI-related works involving human participation in the generation of the AI-created works, but failed to discuss how to determine such human participation. For example, what will happen if the human participation occurs in the process of designing or developing AI software, such as in the process of collecting data or materials for the learning of machines, or creating AI models or constructing knowledge graphs? What will happen if the human participation occurs in the process of using an AI software, such as entering keywords to generate works using AI tools as in the case of Film v Baidu?

AI technologies are increasingly involved in applications and significantly reduce human participation. It should be clarified to what degree human participation can make a piece of AI-created work still eligible for copyright protection.

In addition, the judgment left a blank as to how to determine a copyright owner of AI-created works. In this case, Tencent Corporation was not only the designer of the AI system but also its user. It is therefore easy to determine that Tencent Corporation was the copyright owner. However, in most cases, a designer of the AI system and a user of such an AI system will be different. The user uses the AI system as a tool to generate a piece of work. It will be hard to tell who contributes more to the ingenuity of the final work. As such, it will be difficult to determine the copyright owner of such works.

Since the courts have not reached consensus on the copyright issues relating to AI-created works and the criteria for them is still unclear, we recommend that AI users and designers avoid tagging their works as "Automatically Generated by AI system" when they use an AI system to generate works. In circumstances where that tagging is necessary, the work should at least be tagged as "Under Assistance of AI system". Furthermore, it is better if an entity which creates a piece of work by using an AI tool could mark itself on the work.

This judgment from Nanshan Court provided a new perspective on AI protection. It supported the idea of copyright protection for works created by a human being with the help of an AI system. It can be seen from this case and the previous case that the China courts are willing to give protection to AI-created works, and the only question is how to give such protection. The China courts and IP practitioners will continue to consider proper ways of protecting the AI industry. Our firm will keep an eye on this issue and report its latest developments.

Youping Ma and Guoquan Yang

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