Copyright concerning computer-generated content put to test

A recent Chinese court decision has hit domestic media headlines, putting the issue of copyright concerning non-human-generated content into the limelight.

The Beijing Internet Court ruled in late April that a human's engagement makes a necessary condition for creations' protection under the Copyright Law, court documents showed.

Beijing Film Law Firm released a report on big data analysis via its WeChat account on Sept 9, 2018, which focused on court cases in Beijing's movie industry.

On the following day, the article was posted on Baijiahao, a content gathering platform run by Beijing Baidu Netcom Science Technology, a company affiliated with internet giant Baidu, without authorization, according to the law firm.

As a result, the firm filed a complaint against Baidu Netcom with the Beijing Internet Court, claiming the latter had infringed on its rights of authorship, distribution and protection against distortion.

The plaintiff told the court that the post on Baijiahao lacks parts of the original report, including its byline, introduction, endnotes and a graph showing a trend in annual case numbers in the movie industry, thus violating its copyright.

Baidu Netcom asserted that the report included text and infographics, both secured automatically using Wolters Kluwer software. The law firm had neither researched nor searched to obtain the data - they were generated by the software. It is the same case with the graphs, the internet company added.

Thus the article cannot be protected by the Copyright Law, Baidu Netcom said.

The judgment document, a copy of which has been publicized on the court's website, found that the article in question was the first in a planned series by the law firm. It was comprised of graphs and analysis.

Evidence presented in court showed that the law firm used the software to complete graphs used in the report. They varied in shape due to differences in data, rather than creation, so the graphs failed to meet the copyright requirement in terms of creativity and the plaintiff cannot claim its copyright, the ruling said.

Part of the analysis still has close ties with the software. The law firm selected key words and used the software's visualization function to automatically create a report, which has a "certain creativity" in the choice, judgment and analysis of targeted data, the court said.

Yet the judges noted that having creativity alone cannot constitute a sufficient condition to be recognized as written works protected by the Copyright Law.

Under China's current legal framework, a written work needs to be created by one or more humans.

With advances in science and technology, such content generated by intelligent software will likely come increasingly close to creations by real people in its expression and form, the judges said.

But judging by the existing developments in technology and industry, the current legal system can protect the mental and economic investment in software. In that case, it would be better not to make big changes in the stipulation of rights owners, they said.

So the analysis report using the Wolters Kluwer software cannot be accepted as a written work under the Copyright Law. However, it doesn't mean it has entered the public domain where everyone can use it without authorization, the ruling said.

The law firm, as the software user, cannot byline the related content, and instead should adopt "rational means" to show its rights to the content, according to the ruling.

As for the rest of the article in question, the court ruled in favor of the plaintiff.

The landmark ruling provides a new way of thinking for copyright protection and interest distribution in the era of big data, Legal Daily quoted experts as saying.

Li Shunde, a senior intellectual property expert with the Chinese Academy of Social Sciences, told China Daily that copyright concerning content generated by software or artificial intelligence has long been a controversial issue internationally.

A book titled The Day A Computer Writes a Novel, a team effort between human authors and AI won acclaim in Japan in 2016, triggering discussions over whether AI could be recognized as rights owners.

China's Copyright Law basically belongs to the continental law system, which focuses more on moral rights than the common law system that puts an emphasis on economic benefits, Li said.

"So the overwhelming opinion in the domestic academic and judicial circles is prudence toward the copyright issue related to nonhuman-generated content," he noted. "At the current stage, only humans can express thoughts and feelings, so the ruling has a strong legal grounding."

Yet in the future, the situation might change, "if AI could 'create' works that meet the current copyright requirements", Li said.

"In that case, it will be necessary to distinguish the creations of humans from those by others."