The copyright eligibility of computer-generated literature and artistic works is not, contrary to what many may think, a post-millennial question. In a case decided as early as 1985 [1], in a time long before the internet era, the English court had already held that a computer is no more than a tool by which the disputed work is produced according to the instructions of a computer programmer, and it would be absurd to take the computer or a pen as the author instead of the person who gives commands to the computer or drives the pen.
With the advancement of technology and computers becoming increasingly powerful, questions inevitably arise as to whether a computer running an artificial intelligence (“AI”) program is smart enough to be not only a tool, but its own master in the creation process, and whether the user behind the screen exercised any selection and judgment while using the AI program. The Beijing Internet Court has recently addressed this question and offered its own view.[2]
The facts of this case are relatively simple – the plaintiff, Li, generated a portrait using an AI image generator “Stable Diffusion”. The defendant, Liu, took the image and published it on her social media page without authorisation from Li. A finding of infringement would be straightforward, except as to whether the AI-generated portrait is itself a copyrightable work. In this particular case, Li was able to show to the court that he carefully selected a suitable image database, entered more than 30 textual prompts and 100 negative prompts (to exclude undesirable features), as well as fine-tuning various parameters to arrive at the final photo. The plaintiff was also able to demonstrate to the court that any change in one of the prompts or parameters would result in a different picture. Hence, the court was convinced that the final image constituted an expression of the plaintiff’s idea and had originality. Interestingly, the judge in this case made an analogy of taking a picture with a smartphone (in which case the photographer rather than the phone is the author), echoing the view of that English Court 38 years ago that it is the person driving the pen that is the author.
Is this the first PRC case on the copyright in an AI-generated work? Certainly not. In Beijing Film Law Firm v Beijing Baidu Netcom Science Technology Co. Ltd.,[3] it was held that two computer-generated reports on film-related disputes decided by Beijing courts, obtained by entering simple search terms into a commercial analytic tool, were not authored by a natural person and therefore would not be afforded copyright protection. In yet another case Shenzhen Tencent Computer System Co. Ltd. v Shanghai Yingxun Technology Co. Ltd.,[4] it was held that a financial article written by Tencent’s AI software is a copyright protected work due to the involvement by Tencent’s editorial, products and technical teams in various stages of the article generation, including selection and processing of input data, setting of parameter relating to sufficiency of input data, and making of decision on the overall article structure and corpus to use.
The United States Copyright Office also adopts a similar approach in its published guideline and considers that “[i]n the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of mechanical reproduction or instead of an author’s own original mental conception, to which the author gave visible form.”[5]
As seen from the above cases, the key issue with respect to AI-generated work has always been the degree of human input and control in creating the work, and the Chinese courts are more than willing to award copyright protection in cases where the AI program is merely used as a tool for reducing the author’s idea into a tangible expression. Nevertheless, we do expect this old question on the copyright protection of computer-generated work to be asked again and again, forcing the courts continuously to refine the line on the threshold of human input required.
[1] Express Newspapers Plc v Liverpool Daily Post & Echo Plc [1985] 3 All E.R. 680.
[2] (2023) 京0491民初11279号.
[3] (2018) 京0491民初239号.
[4] (2019) 粤0305民初14010号.
[5] Copyright Registration Guidance: Works Containing Materials Generated by Artificial Intelligence (Mar. 16, 2023), https://copyright.gov/ai/ai_policy_guidance.pdf.