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06 Apr 2020
BY Hugo Biermann

Artificial intelligence – real copyright?

Over the past few years, more and more companies have started publishing news content written by artificial intelligence (“AI”) algorithms. This includes Chinese technology giant, Tencent, whose rapid growth has shaped the trajectory of Naspers, the South African company that currently still owns a bit more than 30% of Tencent.

Tencent publishes content produced by automated software known as Dreamwriter. Dreamwriter produces content on various topics, such as business and financial stories, weather reports and sports results. On average, Dreamwriter produces thousands of articles per day.

In a previous article we looked at the question of ownership when it comes to inventions and works created by AI. A court in Shenzhen, China, was recently faced not only with the issue of copyright ownership, but also with the question of whether or not there is actually any copyright in an AI-generated article.

The case involved Tencent’s Dreamwriter and Shanghai Yingxun Technology Company (“SYTC”). Dreamwriter created a financial article which was published on Tencent’s website. The article concluded with an indication that the article was automatically written by “Tencent’s robot ‘Dreamwriter’”. SYTC copied the article on its own website without Tencent’s consent.

The court first considered whether the article was eligible for copyright protection. In considering this issue, the court had regard to the fact that Dreamwriter selected, analysed and judged certain financial information and stock market data in order to produce the article. The court also assessed whether the work was created independently and whether the appearance of the work was sufficiently different from any existing work.

The court said that the article produced by Dreamwriter shows clear logic and proper structure. It found that the way in which the news was expressed had a “certain originality” and met the legal requirements to be classed as a written work in terms of Chinese copyright law. As such, the court determined that the article qualifies for copyright protection.

The court then considered authorship and ownership. Tencent argued that the article was created under its supervision and that it was responsible for its organisation and creation, as well as bearing any liability that could result from the publication of the article. Because of this, Tencent argued that it should be deemed to be the author of the article. The court agreed and found that Tencent, as the creator of Dreamwriter, owns the copyright in Dreamwriter’s article.

In a previous Chinese case (Feilin v. Baidu in the Beijing High Court), the court refused to accept the idea that a work created exclusively by software could enjoy any copyright protection. Interestingly, in this case, the court applied similar reasoning, but found the human intervention present in the content generation process to be sufficient to establish copyright. Specifically, the court held that the AI-generated work came about as a result of contributions from both the group of people creating or running the AI (on behalf of Tencent) and the operation of the AI itself. The output of the human input justified the copyright protection afforded to the article. In other words, the court found a sufficient human element in the process to make Dreamwriter’s output eligible for copyright protection.

Accordingly, the court held that SYTC’s conduct constitutes copyright infringement and that it should bear liability. SYTC had already removed the infringing article from its website, but was still required to pay a (relatively small) fine.

It is clear that legal systems across the world are being challenged by AI. We know by now that policy and laws often struggle to keep up with the fast-moving technological landscape and it will be interesting to see the approach adopted by a South African court when faced with a similar dispute. In terms of South Africa law, when dealing with a computer-generated work, the person who made the arrangements necessary for the creation of the work is seen as the author. As such, South African courts might accept that a work created solely by a computer can still enjoy copyright protection and it would probably be able to confirm the authorship and ownership based on the provisions of our Copyright Act, 1978.

As we looked at in our previous article, the difficulty is that in the case of some AI-created works, the computer program is not merely a tool in the hands of a human, but actually takes part in the creative process. So, who is it that made the arrangements for the creation of the work, the programmer of the program or the particular user of the program? It has been suggested that the general principle should be that copyright belongs to the person who made the operation of the AI possible.

A final issue to consider is whether an AI-work would be seen by a South African court as having the necessary “originality” for copyright to subsist. In South Africa, in order to be original, the work must be the result of effort and expertise. The phrase “sweat of the brow” is often used in this context. The work need not be ground-breaking or “novel” in the sense of, say, a patented invention, but a certain degree of judgement, selection, skill and effort is required. A lot of this sounds fairly similar to the criteria considered by the Chinese court and it seems that, at least in the author’s view, an AI-work such as the Dreamwriter’s article may well bring about an enforceable right in the form of copyright in South Africa.

Reviewed by Rowan Forster, an Executive in ENSafrica’s IP department.

Hugo Biermann
Senior Associate | IP
hbiermann@ENSafrica.com
+27 81 482 3447