Artificial intelligence (AI) is producing a new wave of innovation and creativity. AI is generating works bearing semblance of human-created works and thus has posed novel challenges to copyright law. Neither investment in developing an ″AI author″ nor its semblance to human-created works justifies the copyright for computer-generated works (CGWs). First and foremost, copyright subsists in works of human intellectual creation. This requirement is inherent in Berne Convention for the Protection of Literary and Artistic Works, Chinese copyright law as well as copyright laws of countries which have either copyright or author’s right tradition. Even though a legal person may be the initial owner of copyright, they are never recognized as having created any copyright work. Neither are their ownership of copyright grounded on financial investment. Instead, such ownership is normally founded on an implicit agreement with the human author(s) of the work. Investment justifies no ownership of copyright even under UK Copyright Law where computer-generated works (CGWs) are treated as a new category of copyright works, of which there is no human author. The copyright of CGWs is owned not by the investor, but by their deemed author ″the person by whom arrangements necessary for the creation of the work are undertaken″. Financial investment is substitutable and thus not ″arrangements necessary for the creation″ of CGWs. Neither do Chinese courts focus on investment in developing AI when approaching CGWs. Rather, they look for human intellectual creation. CGWs may not be assimilated to human-created works for their semblance. The so-called ″objective originality test″ will reduce the requirement of original intellectual creation to objective difference from existing matter. It would destroy the legal distinction between copyright and related rights in Chinese Copyright Law, the subject matter of the former being works of authorship and that of the latter being outside intellectual creation. In assessing originality, Chinese courts normally investigate the creative process to find the requisite intellectual creation that has ″directly produced″a work. CGWs are not exception. In the Tencent case, the court found there was infringement of a financial news story generated by robotic reporter called Dream Writer. In so holding, the court believed that the Tencent staff engaged in original intellectual creation which ″directly produced″ the copyright work by selecting data, setting the operative parameters, the template and the style for the robot to generate the disputed story. Nevertheless, CGWs which have the requisite human intellectual creation may be copyright works under Chinese Copyright Law.The designer of the generative program might in rare case be the author when his or her intellectual creation not only has ″directly produced″ the program but also its original literary and artistic output. The designer should not be protected as the author for all CGWs flowing from the program; otherwise, copyright is strained to protect the technological idea of how to produce ″works″, breaching the fundamental dichotomy of idea and expression. The user may be the author if there is such a close causal relationship between his or her selecting of input data and the original elements of a computer-generated work and in the relationship subsist human intellectual creation. By contrast, absent intellectual creation, seeming works generated by a computer are essentially digital products justified to enjoy neither copyright nor neighboring rights. They can be produced and circulated cheaply and effectively by virtue of current computing technology. They are not scarce and there is no evidence that proprietary protection is needed to incentivize the suppliers.
何怀文. 我国著作权法之下的计算机生成之作品[J]. 浙江大学学报(人文社会科学版), 2020, 6(3): 65-.
He Huaiwen. Computer-Generated Works under Chinese Copyright Law. JOURNAL OF ZHEJIANG UNIVERSITY, 2020, 6(3): 65-.