This is an informal case summary prepared for the
purposes of facilitating exchange during the 2023 WIPO IP
Judges Forum.
Session 5: Generative Artificial Intelligence, the Metaverse and
Intellectual Property Infringement
Primary
People’s Court of Nanshan District, China [2019]: Tencent Company v Yingxun Company, Case No. Y0305MC No. 14010
Date
of judgment: December 24, 2019
Issuing
authority: Nanshan District People’s Court
Level
of the issuing authority: First Instance
Subject
matter: Copyright and Related Rights (Neighboring
Rights)
Plaintiff:
Shenzhen Tencent Computer System Co., Ltd
Defendant:
Shanghai Yingxun Technology Co., Ltd
Keywords:
Copyright Infringement, Artificial Intelligence, AI-generated work,
Originality
Basic
facts: In 2015, Tencent Technology (Beijing) Co., Ltd
(“Tencent Beijing”) developed the software Dreamwriter—
a writing assistance system based on data and algorithm. On May 9, 2019,
Tencent Beijing was granted the software copyright registration certificate.
On May 13, 2019, Tencent Beijing issued an exclusive license agreement to
Shenzhen Tencent Computer System Co., Ltd (“Tencent Shenzhen”), granting the
exclusive right of using Dreamwriter in China from
August 2015. In addition, the agreement also provided that Tencent
Shenzhen, as the licensee, would be the copyright owner of all the works
created by the Dreamwriter during the license period.
The
generating process of an article by the Dreamwriter
involved several steps, including: (1) data
collection and database formation; (2) condition evaluation and article
generation; (3) proofreading/review. There was also a team of
creators (“Team”) in charge of running the Dreamwriter.
For each step, the Team was responsible for preparatory works including: (1) data format handling and data input; (2)
creating trigger conditions, choosing article templates and setting text
corpus; (3) training of the proofreading algorithm.
On
August 20, 2018, Tencent Shenzhen published a financial report (“the article”)
on Tencent finance website. The article was generated by Dreamwriter within two minutes after the closing time of
the stock market. Later on the same day, Shanghai Yingxun
Technology Co., Ltd (Yingxun) republished the article
on its own website without permission.
On
May 24, 2019, the Plaintiff, Tencent Shenzhen, filed the suit against the
Defendant, Yingxun, for copyright infringement.
One of the main disputes in this case was whether the article generated
by a software could be a copyrightable work.
Held:
The Nanshan District People’s Court considered the
article in this case as a copyrightable literary work. According to
Article 2 of the Regulations for the Implementation of the Copyright Law,
a copyrightable work should satisfy two conditions: (1)
reproducible in a tangible form; and (2) original. The article
satisfied the first condition. The article was also original because:
- It
was an independent creation and contained modicum of creativity. The Team
created the article independently by running the Dreamwriter
software. The article analyzed the stock market information with logical
and organized expressions.
- The
creation process of the article reflected creative choices, personalized
decisions, and skills of the creator:
· According
to Article 3 of the Regulations for the Implementation of the Copyright Law,
the term “creation” as referred to in the Copyright Law means
intellectual activities in which literary, artistic or
scientific works are directly created. The preparatory work (i.e. data
input, trigger condition creating, template and corpus setting) done by the
Team were considered intellectual activities directly related to the article
generated subsequently. Therefore, the preparatory process should also be
considered as part of the creation process, and it reflected creative choices
and personalized decisions from the Team.
· In
addition, although the Dreamwriter generated the
article within two minutes, it required human involvement. The running
process also reflected the choices and decisions made by the Team.
The Court also pointed out that the
difference between normal copyrightable literary work and software-generated
work lied in the creation process. For a normal copyrightable literary
work, the author would write the article simultaneously while making creative
choices like collecting materials, deciding the writing styles and the theme,
etc. For software-generated work, there was a lag between article
generation and the preparatory work (i.e. data input, template and corpus
setting). This lack of simultaneity was an inherent characteristic of software
article generation and should not affect the originality of the work.
Relevant
legislation:
Article
2-4 of the Regulations for the Implementation of
the Copyright Law
Article
3, 10, 11, 48 & 49 of the Copyright Law