In recent years, with the development of science and technology, artificial intelligence ("AI") seems to have changed all aspects of people's daily lives. Previously, we saw AI mostly used in the industrial sectors, like autonomous driving, cloud computing, intelligence manufacturing, etc. Nowadays, with the evolution of the data, the widespread use of AI significantly increases in various creative fields; for example, visual art and journalism.

Some articles generating software named "AI writers", such as, inter alia, Tencent-"Dreamwriter" , Toutiao-"AI Xiaomingbot" andXinhua news agency-"Kuai Bi Xiao Xin" , have all been applied as commercial tools. It seems that AI technology may possibly generate literary works with artistic flair. This was demonstrated by Microsoft's AI robot - xiao bing published its "personal" original poetry in 2017. However, regarding the legal position of AI-generated works, there are still no unified legal opinions and definite answers in China.

Recently, in the case between Shenzhen Tech Giant Tencent Co., Ltd. ("Tencent") and Shanghai Yinxun Technology Co., Ltd, the People's Court of Nanshan District in ShenZhen city handed down a judgment in favour of the Plaintiff-Tencent. This case triggered widespread public concern and was said to be a ground-breaking case in China. Some media quoted the case as "a decision ascertained that AI-generated works shall be protected by Copyright Law". But is that so? We could also look back at another case handed down by Beijing Internet Court in April, 2019, which seemed to suggest the contrary. These two outstanding AI cases are worth discussing to explore this further.

1. The "Dreamwriter" Case

In this case, the Court found that:

The external form of the AI-generated article lived up to the standard of written works, and therefore had originality. The Court affirmed that this article was practically created by the Plaintiff's internal team and "Dreamwriter" was only applied as the writing tool.

Regarding the process of generating the article, the Court denied the opinion that "Dreamwriter" should be deemed the creator of the generated article. It affirmed that the creation process was not just the result of running established rules, algorithms and templates of "Dreamwriter", but involved work from the creative team members. The expression of the article was the result of a specialised arrangement and selection by members from the Plaintiff's creative team. This concluded that the works were created by the Tencent creative team and "generated" by the "Dreamwriter".

According to the Copyright Law of China, when work is created according to the will and under the sponsorship and responsibility of a legal person, this legal person shall be deemed to be the author of the work. The article in this case was created by its employees, namely the creative team, under the sponsorship and responsibility of Tencent. Therefore, the Court made the decision that Tencent owned the copyright of the article as written works.

As a result, the decision ordered the defendant to pay RMB 1,500 as statutory damage including economic loss and reasonable expense.

2. The "Baidu" Case

In an earlier case between Beijing Film Law Firm and Beijing Baidu Netcom Technology Co., Ltd ("Baidu"), the Beijing Internet Court also found that the defendant infringed the plaintiff's right of authorship, as well as the information network dissemination. It therefore ordered the defendant to pay statutory damage of RMB 1,000 and reasonable expense of RMB 560.

However, the Court in the case held that only legal subjects specified in the Copyright Law shall be deemed as the appropriate author of the works. Even if the analysis report is a "creation" by the "China Law Reference", which involved some sort of originality, it should not be deemed written works under Copyright Law since it was not created by specific legal subjects.

Nonetheless, the Court found that the article was not generated automatically by the "China Law Reference". Instead, it was created independently by the Plaintiff's employees under sponsorship and responsibility. By the same token, the Plaintiff owned the copyright. The Defendant's pleas were therefore rejected by the Court.

Highlights of the two cases

  1. The "Dreamwriter" case was regarded as a case granting copyright to AI-generated works. However, it is still far from ending up with this conclusion when looking closely at the findings of the verdict. It did not show any sign of making a breakthrough of the existing legal provisions in the Copyright Law, and did not regard AI as the author of copyright.
    The Court further reaffirmed that Tencent's creative team members still played a decisive role in creating the article, rather than the AI. In other words, "Dreamwriter" should only be deemed an intelligent tool assisting Tencent, which was confirmed as the genuine author by the Court.
  2. Although different cases have different views and findings depending on specific facts and events, the judges of the "Dreamwriter" and "Baidu" cases did share the same view that the creative works carried out by legal persons shall still be compulsory to meet the standards of the written works under Copyright Law.
    According to Article 11 of the Copyright Law "the citizen, legal entity or organization whose name is affixed to a work shall, without the contrary proof, be the author of the work." Therefore, the range of the author shall still be restricted within these legal persons mentioned in this provision.
  3. At present, whether to grant protection by copyright law to the "genuine" AI-generated works remains controversial. It is worth pointing out that the "genuine" AI-generated works should be distinguished from the works in dispute of the two above-mentioned cases.
    However, with a national strategy to invest and develop in the field of technology and the ongoing strengthening of intellectual property rights protection in China, we may see the rapid evolution and emergence of new products, which shall result in further improvement of intellectual property laws in the near future.

Suggestions for enforcement

In order to avoid any potential disputes, it's important to arrange AI work copyright enforcement inside and outside the company in advance. More specifically, for commercial purpose, it is highly recommended to get copyright licence from the author, regardless of whether it's AI or another type of author, before you use the works.