This is an informal case summary prepared for the purposes of facilitating exchange during the 2022 WIPO IP Judges Forum.
Session 3: Copyright and New Technologies
Nanshan District People’s Court, Shenzhen, Guangdong, China [2019]: Shenzhen Tencent v. Shanghai Yingxun, 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