Written by Mr. Reinout van Malenstein, IP Expert and collaborator of the China IP SME Helpdesk
David Guetta using AI to deepfake Eminem in a song during live performance just happened earlier this February 2023. (David Guetta on Twitter: "Let me introduce you to… Emin-AI-em 👀https://t.co/48prbMIBtv" / Twitter)
The famous DJ used AI to create vocals and rap sounding as if made and rapped by Eminem, or in Guetta’s own words: Emin-AI-em. He stated that he would not release it commercially and that it is done as a joke. However, one could argue that releasing it during a performance as DJ would technically mean that he did perform and release it commercially. Also, the crowd went pretty nuts when Guetta played the Emin-AI-em and provided him with a lot of added marketing.
If one of the world’s most famous DJs uses AI to create a song and perform, then what do you reckon students will do with their homework? Right… Many students will likely turn to ChatGPT for their homework. This is a step further then stating that the source is Google, which unfortunately is the answer many University students give the past years when asked about the source of their work.
There is an obvious discussion about whether or not this is good for students’ creativity, but that it is not the topic in this article. I want to talk about who actually owns the copyright in China on such works created with AI.
Can AI own copyright in China? Does the copyright belong to the person who puts it in the AI? Or are we talking about blatant copyright infringement?
What is copyright and how does copyright exist
Copyright protects the expression of an idea in a fixed medium. Works need to be original and have a certain level of creativity. For businesses these kinds of copyrightable works could be websites, products catalogue, manual, photographs, software, music, cinematic works, packaging, dramatic works, images, labels, books, fine art, etc. The etc. means that there is no infinite list of copyright protectable objects.
Copyright exists the moment it is created, and it belongs to the author. It does not need official registration. Even though China provides a copyright registration system, this is mostly for smart rightowners who know that holding such registration reverses the burden of proof, i.e. instead of having to prove that you have the copyright, the certificate does the trick, and any other party not agreeing with this has to prove that you are not the legitimate owner of the copyright.
Therefore, copyright registration in China is highly recommended for companies. For more information on this, please do contact me.
What does the Chinese law say on AI authorship?
The Chinese copyright law basically says that the copyright generally belongs to the author. Whether or not an author can be AI, i.e. not human, is not explicitly mentioned.
Based on the nature of copyright law, which is close to the human creator, this most likely will not become the case. It is also not mentioned if a natural person would get the authorship regarding AI generated works with human input.
However, there seems to be more space under Chinese law for this type of reasoning to allow such copyright on AI generated works with a certain threshold of human input.
What do the Chinese courts say on AI authorship?
As the law does not explicitly mention the AI or human/AI authorship, lets have a look at Chinese jurisprudence. Even though there is no doctrine of precedent in China, jurisprudence is really important for us to understand Chinese legal reasoning and does play an important role in future law making.
In Shenzhen, the Nanshan District court ruled in 2020 in the Tencent vs. Yingxun case that an article generated by Dreamwriter software with input from Tencent’s team did have originality and creativity and thus has copyright under Chinese law. Hence, if there is a certain degree of human input and creativity, copyright on AI created content might exist. The author is than the person that put in a certain amount of input or the company that person or persons work(s) for.
No ChatGPT in China
So, what does this mean for ChatGPT in China? AI is super popular in China. The moment the word on ChatGPT came out, Chinese netizens massively wanted to try it. The same happened months ago when Chinese netizens used AI to generate art. For some art AI apps, we are talking more than 600000 users per day. According to Global Times, 60 percent of these people being 25 years and below.
As ChatGPT does not reveal where it sourced its information, under Chinese law, plagiarism will be the big risk here. Naturally, this could mean copyright infringement.
However, many Western AI websites are not available in China due to China’s regulations and laws. Many foreign websites/Apps as Facebook and Instagram are blocked, and China often has its own national alternatives, such as Wechat (Weixin) and TikTok (Douyin).
ChatGPT was however until recently available through third party APPs that integrated it through linking, however this is not possible anymore since the third week of February as Chinese APPs were informed to close this access. Hence, the Chinese might have to turn to Baidu’s Ernie or another chat app created by Tencent or another party in the future. One thing is certain: the genie is out of the bottle, i.e. more AI will come.
What the future holds for AI, copyright and China
AI is very high on the radar of the Chinese government. With the recent developments in AI, it would not be surprising if the government addresses the issue of authorship and AI soon.
Reality learns that governments always need a lot of time to make laws regarding new technological developments. Copyright law is no exception to that. Law will always be later than the technology.
Until the time of new laws and regulations, the precedent of authorship for natural persons that use AI with a certain amount of natural input, originality and creativity to create a copyrightable work can stand in China.
The original article can be accessed HERE.
- Publication date
- 7 March 2023
- European Innovation Council and SMEs Executive Agency