Humans required? Authorship and copyright in China

06 January 2020

By Monique Henson, Trainee Patent Attorney

In Feilin v Baidu, the Beijing Internet Court considered whether copyright subsists in a report generated using software for searching case judgments and generating comparison tables and charts.

In this case, Feilin brought a copyright infringement claim against Baidu for republishing a report that Feilin initially posted on WeChat. The report was produced using a piece of software, Wolters Kluwer China Law & Reference, and the defendant, Baidu, argued that this meant copyright does not subsist in the report.

Was the report at issue produced entirely by software?

Feilin stated that the report had been produced initially using Wolters Kluwer China Law & Reference to search for judgments and generate drawings based on criteria provided by the their employees. Their employees then modified the drawings and analysed the statistics provided by the platform in order to create the report. The defendant, however, contended that the entire report was generated by the platform, stating that Feilin did not collect the presented data or create the drawings.

To settle the issue, Feilin used the platform (following instructions provided by the defendant, Baidu) to produce a reference report for determining the extent to which the output of the platform was modified to produce the disputed report. Although there were differences between the reference report and the report in question, however, Baidu argued that these differences arose as a consequence of the software continually updating over time.

The Court disagreed, however, stating that the differences between the reference report (the output of the software) and the report published by Feilin indicated that the report at issue was created by Feilin’s team. As a result, copyright was deemed to subsist in the work.

What if the report had been created entirely by the platform?

The Court did not stop there, however, and went on to comment on whether copyright also subsisted in the reference report created by the platform. According to the Copyright Law of the People’s Republic of China and the Regulations for the Implementation of the Copyright Law of the People’s Republic of China, copyright subsists in a work if it is original, can be reproduced in a tangible form, and can be considered to be an intellectual creation resulting from intellectual activities.

In the present case, the Court stated that a work only qualifies for copyright protection if it is produced by a natural person. Thus, even if a work is deemed to be original, copyright will not subsist unless it is authored by a natural person. This, in turn, begs the question – what contribution must a natural person make in order to be considered to be an author of the work?

For example, could a software developer who created the platform be considered to be an author of the reference report generated by the platform? Not according to the Beijing Internet Court, which determined that the reference report did not pass on any original expression of the developer, and thus could not be considered to be authored by the developer of Wolters Kluwer China Law & Reference. Similarly, the Court determined that a software user could not be considered to be an author, as the reference report was generated automatically and did not convey an original expression of idea or feeling from the software user.

This case suggests that, in China, copyright will only be considered to subsist in a work if it conveys an original expression of an idea or feeling made by a natural person. It is not yet clear how this lines up with the Resolution adopted at the AIPPI (International Association for the Protection of Intellectual Property) World Congress London in September 2019, which states that AI generated works should only be eligible for protection by copyright if there is human intervention in the creation of the work.

Although many countries have established provisions for copyright in computer-generated works, this case illustrates some of the issues that can arise when considering whether or not copyright subsists in a work generated using artificial intelligence. This issue is not limited to copyright, however, as various patent offices are now considering the issue of AI inventorship. Increasingly, there are calls to adopt similar provisions to those already in place for copyright in computer-generated works for inventions generated by AI. However, as this case and the Resolution adopted by the AIPPI show, the issue of authorship for AI-generated works is far from settled. 

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Daniel Chew
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(Ellie) Li Min
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