Clifford Chance

Copyright of AI generated content

Current copyright regimes of many countries in the world require human authorship to afford copyright protection to a work. Where the work is generated by AI, the issue becomes how much human intelligence is involved and whether the work is copyrightable.

The PRC courts have issued several decisions granting copyright protection over AI generated content.

The common thread in these decisions is that if the generation of content by AI involves original arrangement and selection of certain parameters and such intellectual activities meaningfully contribute to the specific expression of the work in question (for example, in the form of text or a photograph), the work is copyrightable. This brings PRC copyright law in line with the approach adopted in many countries in the world requiring human intellectual input for copyright protection.

Recent PRC court cases have stated as follows:

• When the human AI user selects and arranges the data inputted, or the templates and linguistic styles applied, or sets conditions to trigger the running of the algorithm, and this selection and arrangement is directly attributable to the expression of the work generated by the algorithm-based intelligent system, the article is copyrightable. See Shenzhen Tencent Computer System Co., Ltd. v Shanghai Yingxun Technology Co., Ltd. (2019).
• Copyright may vest in the post-processing of a photograph or painting by way of machine if the post-processing also involves a human's original choice and judgment, and such choice and judgment makes a discernable difference to the work created, the post-processed work is copyrightable. See Gaoyang v Youku Information Technology (Beijing) Co., Ltd. (2020) and Beijing Film Law Firm v Beijing Baidu Netcom Technology Co., Ltd. (2019).
• However, if a machine autonomously takes photographs in its default setting, the photographs or output of the shooting process do not reflect any human intellectual intervention, selection, or judgment, and the photographs therefore lack originality, and are not copyrightable. See Zhejiang Anxie Intelligent Technology Co., Ltd. v Qingdao Xunji Technology Co., Ltd. & Xunji Technology (Suzhou) Co., Ltd. (2022).

It remains to be seen how future cases will deal with more sophisticated AI, which has the ability to generate content with minimal human input, and minimal human choice or judgement is involved, and whether copyright protection will be granted in such cases.

II. AI patents in Mainland China

Similar to other jurisdictions, Mainland China affords patent protection over software and algorithms including AI algorithms to the extent that they constitute a technical solution making use of scientific principles, solve technical issues or achieve a technical effect. Abstract ideas are not patentable.

A recent report issued by research centres connected to the Ministry of Information Technology indicates that the total number of patent applications in Mainland China in ten major areas of AI technologies has reached about 1.1 million, with major growth in the areas of deep learning, intelligent voice, natural language processing and big data.

The China Intellectual Property Administration ("CNIPA") responded to the growing number of AI-related patent applications and amended the Patent Examination Guidelines ("Guidelines") effective from 1 February 2020 to clarify the rules for examining patents concerning AI as follows:

1. All features of patent claims including those related to technology or involving commercial rules or rules for intellectual activity shall be examined as a whole rather than separately. As long as a claim contains technical features, it is overall not an abstract idea and cannot be excluded as a patentable subject matter.
2. In the assessment of novelty and inventiveness, a patent claim involving algorithms, related technologies and commercial rules shall be considered as a whole, and any contribution of the algorithem or commercial rules to the technical solution shall be factored in.

In August 2021, the CNIPA issued a further Draft Amendment to the Patent Examination Guidelines for Public Consultation, proposing further rules concerning the patent examination of AI technologies such as deep learning classification and clustering. It is possible that this amendment will be implemented within 2023.

III. Conclusion and Outlook

Mainland China is on a clear path to become a major AI innovation centre, as illustrated for example by the sheer number of AI-related patent applications. Mainland China is adapting its rules for patent examination and protection to facilitate this. The PRC courts have also demonstrated their willingness to at least recognise the value of human intellectual activities in AI-assisted content and confer copyright protection. Companies should be encouraged to use AI in their business operations, and developers of AI should continue to strengthen their efforts to boost their advantage in deep learning and big data. Do contact our lawyers should advice be required on the protection and exploitation of AI-related intellectual property and risk management in AI-use in APAC.