Court ruling in China: AI-generated images can be copyrightable

The Beijing court ruled that the AI-generated images were copyrightable works of human authorship and that the defendant was liable for copyright infringement. The Beijing court first considered whether the images fell within the scope of the Chinese Copyright Law. It answered in the affirmative, classifying the images as works of literature, art and science (Article 3 of the Copyright Law). Furthermore, the court found that the requirements of intellectual creation and originality were met. In this regard, the court reached the following conclusions:

According to the court, "intellectual creation" means that the work must reflect an intellectual contribution by a human being. The court focused on the process of image creation, in which the plaintiff used various input options, such as

The court considered the individual selection and input of the various parameters to be the plaintiff's intellectual contribution.

The court also found that the images produced were "original" and constituted graphic works of art reflecting the plaintiff's aesthetic choices and personality. Again, the court relied essentially on the creative process and the activities carried out by the plaintiff:

The plaintiff had repeatedly adapted and refined the results to suit his personal ideas and preferences. The court therefore concluded that these were original works of human authorship, not merely machine-generated by the AI, and therefore works of art under copyright law.

As a result, the court found that the plaintiff's copyrights had been infringed and ordered the defendant to pay damages.

The Beijing Internet Court ruling is the first in China to address the copyrightability of AI-generated works. The court first held that software alone cannot be the "author" of a work. Chinese copyright law still requires the involvement of a human author to create a copyrightable work. In particular, the court focused on whether the creation of the images involved original human contributions, rather than whether the work itself was created entirely by humans. The court sees a difference in whether a user of an AI takes its output without further creative intervention, or whether the user repeatedly modifies the output by changing parameters and input prompts until the output corresponds to his or her ideas. It is precisely in these constant adjustments and inputs, and thus in the user's creativity in operating the AI, that the court sees the intellectual investment that can make the result, i.e. the image generated with the help of the AI, copyrightable.

Furthermore, in the present case, the result, i.e. the images generated by the AI, could be reproduced by exactly repeating the inputs made by the plaintiff. The question therefore arises as to whether the court would have ruled the same way if this reproducibility did not exist, i.e. if the AI produced different results each time and the output of the AI was unpredictable. In this case, despite the human and creative input, the result would be uncontrollable and beyond human influence. In such a case, it can be assumed that copyright on such "random results" can hardly exist.

The judgment is unlikely to set a precedent (yet). However, it shows the direction in which case law is likely to develop with regard to the protection of works created using AI. This will be of increasing interest as the use of AI becomes more widespread and the question of copyright protection for AI-generated works arises.

In China, there seems to be a tendency to consider AI-generated results as copyrightable if a human is sufficiently involved in the generation of the result and if this is done under his or her influence by using methods such as input prompts, selection and adjustment of parameters, etc., so that the AI result reflects his or her personal contribution, ideas and preferences.

The increasing role of AI in the Chinese economy is also reflected in the fact that on 17 January 2024, the Chinese Ministry of Industry published draft guidelines for the standardization of the AI industry. The draft envisages the creation of more than 50 national and industry-wide standards for AI by 2026. It also states that China intends to participate in the development of more than 20 international AI standards by the same date. 60 percent of future standards will be aimed at supporting "general key technologies and application development projects". According to the ministry, the aim is for more than 1,000 companies to adopt and promote these new standards.

Article 11 of the Chinese Copyright Law provides that if a work is organized by a legal entity, created in the name of the legal entity and for which the legal entity is responsible, the legal entity shall be deemed to be the author. German companies in China can therefore, in principle, be authors of works under the Copyright Law. The ruling may therefore be relevant to companies in China that use images generated with the help of AI, whether on their website, for advertising purposes, in social media, etc., and find that such images are copied and used by third parties without authorization. As in the case of the Beijing Internet Court described above, a company affected in this way would be able to take legal action against the unauthorized user of the work and, if necessary, claim damages. This increases the author's legal protection and thus legal certainty. Further developments, both in legislation and in the application of the law, remain to be seen. We will be pleased to advise you on all matters relating to copyright protection in China.