Intellectual Property Protection for AI Creations in China

In recent years, the rapid rise of AI technology in the world has caused people to pay attention to many issues such as security, ethics, and law. Whether the content generated by AI can be included in the protection scope of the Copyright Law is highly controversial. According to some opinions, the relevant provisions of the current Copyright Law, written works should be created by natural persons, which is a necessary condition to constitute works protected by copyright law.

However, there are also views that AI is an extension of human intellectual work, and the content generated by AI is regarded as human intellectual achievements, therefore, they should be protected by Copyright Law.

On 24 December 2019, Shenzhen Nanshan People's Court of (hereinafter referred to as the Nanshan Court) heard the case of Shenzhen Tencent Computer System Co., Ltd. (hereinafter referred to as Tencent) vs. Shanghai Yingxun Technology Co., Ltd. (hereinafter referred to as Shanghai Yingxun) ), issued the first-instance judgment, and found that the financial reporting article created by Dreamwriter, an intelligent writing assistant system developed by Tencent, is original and constitutes a work under the Copyright Law. Shanghai Yingxun's unauthorized dissemination of the involved article through its "Internet Loan Home" website, has constituted infringement. It is worth noting that this is the first copyright dispute
that AI (artificial intelligence) generated content constitutes a work.

Case History

Dreamwriter (hereinafter referred to as the software involved in the case) is a set of intelligent writing assistance system based on data and algorithms independently developed by Tencent in 2015. On 20 August 2018, the "Midday Review: The Shanghai stock index rose slightly by 0.11% to 2671.93 points, led by the communications operations, oil mining and other sectors " created by the software involved in the case. The financial report article (hereinafter referred to as the article involved) was first published on the Tencent Securities website, and marked "This article was automatically written by Tencent robot Dreamwriter" at the end of the article.

Shanghai Yingxun made a complete copy of the article on the day of the publication without permission, and published it on its website "Internet Loan Home", and spread to the public. Tencent sued Shanghai Yingxun to the court that the article involved was completed by the software involved, and it was created for Tencent. Therefore, Tencent should be regarded as the author of the article involved, and the copyright of the article belongs to Tencent. The unauthorized reproduction of Shanghai Yingxun allegedly infringed the copyright enjoyed by Tencent. Accordingly, Tencent requested the court to order Shanghai Yingxun to stop infringement and compensate for economic losses.

Court’s Review

The Nanshan Court held that the key to whether the article involved constitutes a written work, is to determine whether the article involved is original, and the judgment should be divided into two steps: First of all, it should be analyzed to determine whether the article is independently created, and whether it has a certain degree of the difference from the existing works, or has the minimum degree of creativity; second, it should be analyzed to determine whether the process of the article involved reflects the creator's personalization factors such as choice, judgment and skill. The court held that when determining whether the behavior of the relevant person is a creative act under copyright law, it should consider whether the act is an intellectual activity and whether there is a direct connection between the act and the specific expression of the work.

First, the Nanshan Court affirmed that the financial review articles automatically generated by Dreamwriter are independently created, and there is a certain degree of difference in external performance from existing works, which meets the requirements of "original originality". Second, the Nanshan Court held that Dreamwriter’s creative team’s “arrangement and selection of data entry, trigger setting, choice of template and language” is intellectual activity, and it has a direct connection with the articles involved, in line with the definition of “creation” provided by Implementation Regulations of the Copyright Law; the court also held that the article involved reflected the “personalized choice and arrangement” of the creative team, rather than the “self-awareness” of Dreamwriter software. Furthermore, the Nanshan Court determined that the article involved is a legal person's work created by the main creative team and confirmed that the article was protected by Copyright Law.

The analyses of the Nanshan Court reflects the current practice’s new understanding of AI creation, that is, the copyrightability of AI creations should be measured on the basis of the degree of human intervention: if the degree of human intervention is high, AI is only a tool for human creation, its creative achievements are essentially a manifestation of human creativity, and should be protected by the current copyright system. Copyright belongs to the person who imposed the intervention (natural person, legal person or other organization); on the contrary, if the degree of human intervention is low or there is no human intervention, the AI creative achievement without embodying human creativity, granting copyright protection is contrary to the purpose of the copyright system - encouraging intellectual creation and promoting the spread of intellectual creative achievements.

Accordingly, the Nanshan Court's first instance ruled that Shanghai Yingxun's unauthorized reprinting of the article involved violated Tencent's right to disseminate the information network and should bear corresponding civil liability. In view of the fact that the Shanghai Yingxun has deleted the infringing works, it shall be judged to compensate Tencent for economic losses and reasonable rights protection expenses of RMB 1,500.


As an important force in the new round of scientific and technological revolution and industrial transformation, AI has had a significant impact in promoting the upgrading of traditional industries, and has been increasingly introduced into artistic creation and literary creation. The industry has always held different views on whether these "works" belong to works in the sense of Copyright Law and whether they can own the copyright.

In the first-instance judgment of Beijing Film Law Firm (hereinafter referred to as the Film Law Firm) against Beijing Baidu Wangxun Technology Co., Ltd. for copyright infringement, the Beijing Intellectual Property Court held that originality is not a sufficient condition to constitute written works. Written works should be created by natural persons. Although with the development of science and technology, such "works" generated intelligently by computer software are becoming closer to natural persons in terms of content, form, and even expression, but according to the actual technology and industrial development level, if these intellectual and economic investments of such software can be fully protected under the current law system, through other laws and regulations, and should not break through the basic norms of the subject of civil law. Therefore, the Beijing Intellectual Property Court determined that the completion of the creation of a natural person should still be a necessary condition for the work in the copyright law. Even if the content claimed by the film law form is original, it is still not work in the meaning of the copyright law. After the first-instance judgment of this case, it caused widespread concern in the industry. Some people agree with the above judgment, but many people have pointed out that due to the lack of protection of AI-generated content in China’s current laws, the rights of AI R&D personnel are also in a “vacuum” zone. If the legal nature of AI-generated content is not adjusted and confirmed, it will not be conducive to the long-term development of the related industries.

At present, whether a work can be protected by Copyright Law, first, we need to judge whether it is an original expression. In judicial practice, it is necessary to determine whether the expression of the work is an independent creation, whether it can be distinguished from the existing works in external performance, and has the lowest degree of creativity. Artificial intelligence is an extension of the human brain and body. It has played a role in the creative process, and it has only reduced the human intelligence and physical labor. This is no essential difference from the role played by traditional machines engaged in automated industrial production. Since the products produced by traditional automated machines belong to human labor, artificial intelligence products should also be regarded as human intellectual achievements, that is, the expression of human thoughts or emotions. In addition, if the creation of original artificial intelligence-generated content in the fields of literature, art, and science are protected by copyright laws as works, it will help to encourage the creation and dissemination of works, promoting cultural diversity, and encourage people to develop intellectual labor and manual labor, artificial intelligence capable of generating original works, and using artificial intelligence to create works.

By MMLC Group, China
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Sarah Xuan is a Partner in the MMLC Group.

Copyright MMLC Group

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.

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