With the rapid development of artificial intelligence (AI) technology, generative AI applications, like ChatGPT and Stable Diffusion, have quickly gained popularity due to their content generation capabilities. The intellectual property rights in the AI-generated content (AIGC) have become a hot topic in the IP world:
(1) Is AI-generated content (AIGC) copyrightable?
(2) Who is the author?
(3) Who owns the copyright of the AIGC?
(4) Are AIGC service providers liable for copyright infringement?
This newsletter will take you through the recent landmark judgments in China, unrevealing the present legal framework and protection towards AIGC in China.
What does the Chinese Law say?
The PRC Copyright Law defines copyrighted work as ingenious intellectual achievements in the fields of literature, art and science that can be presented in a certain form. The “intellectual achievements” belong to the author.
Under the PRC Copyright Law, an author is defined to include natural persons and legal entities or unincorporated organizations. A unique feature under the PRC Copyright Law is the recognition of the concept of “corporate work”, that a company may also be considered as author if a work is created according to its intention and under its supervision and responsibility.
However, AI generators could not be regarded as author under the present legal framework. Therefore, for the AIGC to be protected, the first step would be to define the possible author of the AIGC and the corresponding intellectual achievements or activities rendering the AIGC protectable under the PRC Copyright Law.
Chinese Courts Debunking the Myths
In 2019, the Shenzhen Nanshan District People’s Court handed down China’s first judgment on a copyright dispute concerning AIGC. The Court ruled that an article written by an AI generator known as “Dreamwriter” developed by Tencent is copyrightable.
As discussed, to be qualified as a copyrighted work, there should be intellectual achievements by an author, being either natural person or company. Although it only took the AI generator two minutes to create the article, which was the result of the software’s operation of established rules, algorithms, and templates without any human intervention, Tencent designed the rules and algorithms. These were considered intellectual activities directly linked to the creative expression of the article. The originality existed in Tencent’s choices in the criteria for the selection and arrangement of data, which is subsequently adopted by the AI generator to complete the selection and arrangement process and generate the article. The article at issue is thus regarded as the result of the collective human intellectual activities of Tencent, reflecting Tencent’s needs and intentions. Accordingly, the article is a literature work protected by copyright, with Tencent being the author and the owner.
In another case, though not concerning AI, the Beijing Intellectual Property Court ruled in an appeal case in 2020 that screenshots of a video automatically recorded by a digital camera attached to a hot air balloon constituted photographic work. The first instance court originally held that there was no intellectual achievement in the video as it was automatically recorded and there was no human intervention after the hot air balloon took off. The resulting screenshots are thus not copyrightable.
However, in appeal, the Beijing Intellectual Property Court arrived at a different conclusion. The Court ruled that there were human interventions from the shooting process to the final editing of the screenshots, including the specific choices of camera settings and shooting subject by the plaintiff, being an individual, which reflect his intellectual choice and arrangement. The Court also observed that the screenshots were further edited by the plaintiff, rendering them more aesthetically appealing. Accordingly, the Court ruled that the screenshots constitute photography work protected by copyright and that the plaintiff is the author and copyright owner.
AI generators usually rely on prompts given by users to generate content. From the above judgments, when considering whether AIGC is copyrightable, the Chinese Courts will look into whether there is sufficient degree of human intervention resulting in a material impact in the creation or generation process. If the AIGC can reflect the intellectual choices and intentions of the person or company using the AI generator, they may be the authors and hence owners of the AIGC.
Prompts as Important Evidence of Human Intervention
In claiming ownership of copyright in AIGC, evidence showcasing one’s effort in designing parameters or prompts will be critical.
In 2023, the Beijing Internet Court handed down China’s first judgment on a copyright dispute concerning an image generated by Stable Diffusion, a popular text-to-image generator launched in 2022. While the image at issue, featuring a realistic Chinese lady, was generated by Stable Diffusion without any editing by the plaintiff, the plaintiff, being an individual, submitted pages of prompts given to Stable Diffusion leading to the generation of the image. The plaintiff also demonstrated to the Court how changes in the prompts and parameters given would result in different outputs. Accordingly, it was held that the plaintiff’s choices of prompts and parameters reflect his intellectual choices and personalized expression, and therefore the image generated is protected with the plaintiff being the author and owner of the copyright.
The Beijing Internet Court has made a positive note that AI generators are essentially tools, similar to any other tools used for creating artwork. The key difference is that users no longer use traditional drawing techniques, but “techniques” of inputting prompts to “create” the artwork. With the advancement of technology, the level of human involvement may decrease, but this does not mean that the resulting works are not copyrightable. It depends on whether the same may reflect the author’s intellectual input and originality.
Liability of Generative AI Service Providers
On the other hand, there is growing concern that the AIGC may constitute infringement of the IP rights of others if the same is put into use particularly for business purpose. In February 2024, the Guangzhou Internet Court issued probably the world’s first judgment concerning a copyright dispute with a generative AI service provider. The plaintiff, being the licensee of a Japanese anime character, known as Ultraman, brought a copyright infringement lawsuit against a generative AI service provider. The plaintiff entered “generate Ultraman” as a prompt and the images so generated were substantially similar to Ultraman. The Court ruled that the defendant infringed the plaintiff’s right of reproduction, adaption, and dissemination via information networks.
When assessing liability, the Court referred to the 2023 Interim Measures for Administration of Generative AI Services (the “2023 Measures”), which require AIGC service providers to obey laws and respect IP rights and held that service providers should exercise a reasonable duty of care. The Court found that the defendant failed to (i) implement a complaint system; (ii) remind users to respect IP rights; and (iii) label the AIGC so as to distinguish the same from content generated by human authors.
This case sets an important precedent for copyright infringement lawsuits against AIGC service providers. Particularly, the Guangzhou Internet Court held that AIGC service providers should exercise a reasonable duty of care. Under the 2023 Measures, service providers are required to (1) use data and learning models from legitimate sources; (2) not to infringe others’ IP rights; (3) comply with the Personal Information Protection Law, Data Security Law, Cybersecurity Law; (4) take prompt measures to stop illegal use of the AI services; and (5) enter into service agreements with users.
Final Words
From the above cases, the generally accepted view is that AIGC is copyrightable as long as it reflects the originality and intellectual input of a person/company. Evidence showcasing intellectual input in the generation process is essential. Copyright owners are recommended to record their works through copyright recordal in China, even for AIGC. Copyright recordal certificates serve as prima facie evidence of existence and ownership of copyright and can facilitate enforcement proceedings, though evidence showing one’s effort will have to be properly docketed.
On the other hand, AIGC service providers may be liable for copyright infringement if their outputs infringe others’ copyright. With the Ultraman case setting a precedent, copyright owners may wish to take a more active role in monitoring and enforcing their copyrights as may be used by AIGC service providers.
Recently, the Beijing Internet Court heard a case on the claim for removal of data from the training database of an AI image generator known as Trik AI. In this case, the illustrators claimed that Trik AI used their artworks to train its AI and therefore demanded the removal of their artworks from the training database. Trik AI argued that such use constituted fair use and did not infringe their copyright. It is worth noting that the PRC Copyright Law does not provide an exception for training and data mining. We will keep an eye on the outcome of this case, particularly the Court's stance on training data infringement.
We will keep you updated on the latest developments in this area. Should you have any questions regarding AIGC or IP right enforcement, please contact us.
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