Recent Judicial Developments in Copyright Protection for AI-Generated Outputs

Eva Zhang

At present, just three legal jurisdictions have issued rulings concerning the copyright standing of outputs generated by artificial intelligence (AI). However, disagreements arise where similar user inputs trigger copyright protection in Chinese courts but not in the USCO.

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1: The United States

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In recent disputed Copyright Registration Cases[1] of A Recent Entrance to Paradise (appealed and ruled in Thaler v Perlmutter), Zarya of the Dawn, Théatre D’opéra Spatial’ and SURYAST, the U.S. Copyright Office (‘USCO’) taken a firm stance, asserting that "copyright law only extends to works created by human beings" and declined to register the copyright of AI-generated content. It's worth noting that USCO arrived at this conclusion after examining user inputs in the process. The U.S. Copyright Office employs various arguments to explain why a user's input behavior does not constitute participation in creation. For instance, it points out that AI users do not “control or guide” the generation of the desired image and cannot “predict” the content of the resulting image. Although the AI user inputs the prompt into the AI software, they do not “actually form” the image, nor do they act as the “inventive or mastermind” behind it. While the information in the prompt may “influence” the generated image, the prompt text does not “dictate” a specific result. As a result, AI users lack sufficient “control” over the generated images to be considered the author of the image[2].

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2: China

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In November 2023, the Chinese Court made a contrasting ruling in a comparable case, Li vs Liu, holding that the AI user demonstrates his choice and arrangement through a series of acts, including designing character presentations, selecting prompts, arranging prompt order, setting parameters, and choosing satisfactory pictures. This was deemed a form of personal expression, meeting the "originality" requirement[3]. Chinese courts, similar to USCO, asserted that "completion by a natural person" is a prerequisite for work to qualify as copyrighted. They contended that existing generative AI lacks free will and legal entity status[4]. Therefore, when people utilize AI to produce images, it is still humans employing tools for creation. The issue lies not in determining the creator between humans and computers, but rather in identifying human beings’ intellectual contribution to the creative process[5].

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This is not the initial instance of the copyright of AI-generated outputs in China. In April 2019, the Judge ruled in the Filin v. Baidu case[6] that a natural person's completion of a work remains a prerequisite for copyright protection. As a result, an analytical report generated by computer software does not constitute a work, and non-creators, such as the software developer (owner) or user, cannot sign their names as authors but should indicate that the report was automatically generated by the software. Nevertheless, it was also highlighted that while the analysis report may not qualify as a work, it does not mean it has entered the public domain and can be freely utilized by the public. However, in March 2020, the Court reached a contrasting verdict in a similar copyright infringement lawsuit of Tencent v. YingXun[7], definitively determining that articles generated by artificial intelligence are original and constitute written works.

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3: Italy

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On January 16, 2023, the Supreme Court of Cassation of Italy affirmed the lower courts’ decisions which upheld a copyright infringement claim for the protection of a graphic work titled ‘The Scent of the Night’ produced by generative AI. The lower courts concluded that a range of evidence supported the user's attribution of the work, and the work was deemed to be creative[8].

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According to the judgment, the defendant claimed that the image was generated by software, and the human creator merely chose an algorithm to apply and then approved the computer-generated result. The Supreme Court held that the ground appears to be inadmissible because it seeks to introduce a fresh question of legitimacy that was not addressed in the lower court’s decisions. However, the Supreme Court emphasized that image generation using software is compatible with developing a creative work of the intellect[9]. As a result, an assessment of the facts would have been necessary to ascertain whether and to what extent the use of the software had subsumed the creative input of the artist using it[10].

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In addition, individual countries have made administrative registration decisions concerning the registration of copyright in AI-generated objects, although they have not been confirmed through judicial proceedings.

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1: India

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The same AI-generated image that was denied registration by the USCO in the aforementioned ‘SURYAST' case was registered in India, however, the process was difficult. The image titled “SURYAST” was generated by an AI Painting Application named “RAGHAV”, and its human creator is an IP lawyer, Ankit Sahni. Mr. Sahni filed two copyright applications for two AI-generated artworks, claiming ownership. The copyright office rejected the first application, which listed RAGHAV as the sole author. The second application, on which both Mr. Sahni and the AI were named as co-authors, was granted registration in November 2020[11].

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However, the Indian Copyright Office subsequently issued a withdrawal notice, requesting Mr. Sahni to provide additional information regarding the legal status of the AI tool RAGHAV. By emphasizing Sections 2(d)(iii) and 2(d)(vi) of the Copyright Act of 1957, the notice highlighted that an ‘author’ must be an artist or anybody who causes the artistic work to be created. Mr. Sahni responded to the notice by contending that no legal provision allowed the registrar to withdraw a copyright registration after it had been granted. The registrar’s only option is to file a rectification petition with a high court under Section 50 of the Copyright Act[12]. However, as of the date of this article, this “SURYAST” image is still listed in the copyright registry. It seems that the Indian Officials are still hesitant on the issue.

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2：Canada

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Mr. Sahni also successfully obtained a copyright registration for ‘SURYAST’ in Canada。 On 1 December 2021, the Canadian Intellectual Property Office (“CIPO”) registered the same copyrighted work entitled 'SURYAST,' with 'RAGHAV Artificial Intelligence Painting Application' (RAGHAV) as a co-author[13]. This registration marks the first time Canada has attributed copyright authorship to a non-human.

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3: South Korea

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More recently, South Korea announced that it will not grant copyright registration to AI-generated works unless the work “demonstrably convey[s] human thoughts and emotions”. …The carve-out certainly provides room for an approach similar to the Chinese court’s to be taken”[14].

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Previously, on 29 December 2023, Nara Knowledge Information Co., Ltd received a copyright registration from the Copyright Office of South Korea for its AI-generated film named “AI Suro’s Wife” as an “edited work” with human editing. Several artificial intelligence programs such as "GPT-4", "ClovaX", "GPT-3.5" and "GPT-3.5" were used in the production of this cinematic work. Scenes were created using the Large Language Model (LLM) and images were created using "Midjourney" and "Stable Diffusion". Video-generating AIs such as "Gen2" and "D-ID" were used to make videos, while character voices were created using "clobber dubbing". Finally, the music was generated using “Soundrow”[15]. According to South Korea’s 2023 COPYRIGHT REGISTRATION REVIEW HANDBOOK, if elements of traditional copyright are implemented by artificial intelligence technology, copyright is not recognized; however, if humans modify the AI product by selecting, arranging, etc., copyright is recognized to a limited extent[16].

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As we enter a new era marked by the advent of AI-driven creative expression, how will governments worldwide address the copyright issue arising from the incorporation of AI into the creative process to strike a balance between public access to work and the creators' incentives? Do the pioneering decisions made in this regard offer any insight into addressing these challenges effectively?

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[1] U.S. Copyright Review Board Letter to Abbott re: Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (U.S. Copyright Review Board, Correspondence ID 1-3ZPC6C3, SR # 1-7100387071, 14 February 2022) <https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf>?(‘A Recent Entrance to Paradise’); This decision was appealed to the U.S. District Court of Columbia. In August 2023, Judge Beryl A. Howell, issued a decision in Thaler v Perlmutter, upholding USCO’s refusal to register an AI-generated visual work titled “A Recent Entrance to Paradise”, see Thaler v Perlmutter, Case (DC Cir, Civ No. 22-1564 (BAH), 18 August 2023); U.S. Copyright Office Letter to Lindberg re: Zarya of the Dawn (U.S. Copyright Office, previous Correspondence ID: 1-5GB561K; Registration # VAu001480196, 21 February 2023), <https://www.copyright.gov/docs/zarya-of-the-dawn.pdf> (‘Zarya of the Dawn’); U.S. Copyright Review Board Letter to Pester re: Second Request for Reconsideration for Refusal to Register Théatre D’opéra Spatial (U.S. Copyright Office, Correspondence ID: 1-5T5320R, SR # 1-11743923581, 5 September 2023), <https://www.copyright.gov/rulings-filings/review-board/docs/Theatre-Dopera-Spatial.pdf> (‘Théatre D’opéra Spatial’); U.S. Copyright Review Board Letter to Garens re: Second Request for Reconsideration for Refusal to Register SURYAST (U.S. Copyright Review Board, Correspondence ID: 1-5PR2XKJ, SR # 1-11016599571, 11 December, 2023), <https://www.copyright.gov/rulings-filings/review-board/docs/SURYAST.pdf> (‘SURYAST’)

[2] Zarya of the Dawn (n 1) 9.

[3] 《李某某诉刘某某侵害作品署名权、信息网络传播权纠纷案》[Li Yunkai v. Liu Yuanchun -Dispute over Copyright Infringement of the Right of Authorship and Right of Communication through Information Network], 北京互联网法院[Beijing Internet Court], (2023)京 0491 民初 No. 11279[(2023) Jing 0491 Min Chu No. 11279], 27 November 2023, 17-20, (‘Li vs Liu’).

[4] Ibid 20

[5] Ibid

[6] 《北京菲林律师事务所诉北京百度网讯科技有限公司著作权纠纷案》[Beijing Filin Law Firm v. Beijing Baidu.com Technology Co., Ltd. - Civil Judgment on Copyright Infringement Dispute], 北京互联网法院[Beijing Internet Court],（2018）京0491民初239号 [(2018) Jin 0491 Civil No.239], April 2019,（’Filin v Baidu’）

[7] 《深圳市南山区人民法院在深圳市腾讯计算机系统有限公司诉上海盈某科技有限公司侵害著作权及不正当竞争纠纷案》[Shenzhen Tencent Computer System Co., Ltd. v. Shanghai Yingxun Technology Co., Ltd. - Civil Judgment on Copyright Right Infringement Dispute, Commercial Bribery Unfair Competition Dispute, 深圳市南山区人民法院 [Shenzhen Nanshan District People's Court], （2019）粤0305民初14010号[(2019) Yue 0305 Civil No. 14010], March 2020, (‘Tencent v Yingxun’)

[8] Editorial Office, ‘Copyright Protection of a Floral Fractal Generated Using Software’ [2024]?73(3) GRUR International 258, <https://doi.org/10.1093/grurint/ikad144>. The Supreme Court‘s decision of RAI Radiotelevisione Italiana S.P.A. vs. Biancheri can be downloaded at Wayback Machine (archive.org).

[9] Ibid

[10] Ibid

[11] The diary number is 13646/2020-CO/A, see details at the official website of India Copyright Office:? <https://copyright.gov.in/frmStatusGenUser.aspx>

[12] Sukanya Sarkar, ‘Exclusive: Indian Copyright Office issues withdrawal notice to AI co-author’, managing IP (Web Page, December 13, 2021),<https://www.managingip.com/article/2a5d0jj2zjo7fajsjwwlc/exclusive-indian-copyright-office-issues-withdrawal-notice-to-ai-co-author>

[13] The registration number is 1188619, see details at the official website of Canada Intellectual Property Office, <https://www.ic.gc.ca/app/opic-cipo/cpyrghts/dsplySrch.do?lang=eng&wt_src=cipo-cpyrght-main&wt_cxt=toptask>

[14] Pin-Ping Oh, Harry Qu and Toby Bond, ‘Copyright Protection for AI generated works - Recent Developments’, Bird & Bird (Web Page, 09 February 2024), <https://www.twobirds.com/en/insights/2024/china/copyright-protection-for-ai-generated-works-recent-developments>.

[15] Jang Se-Min, “Domestic AI film 'first to receive copyright recognition' ...... Second case in the world”, AI Times (Web Page, 04 January 2024), <https://www.aitimes.com/news/articleView.html?idxno=156286>

[16] Ibid