Whose Butterfly It Is – An Analysis of BMW i and the "Virtual Butterfly" of Great Compassion

Li Shilin Digital Intellectual Property Studio, Nanchang University

(Images from Red Star News, for review reference only)

Although the characters and plots of the alleged copyright infringement allegations are different, the bridges, scenes, and character relationships set by the "script of the work infringement" are strikingly similar. The "Butterfly" incident is no exception, and it is not much different from the "Audi Xiaoman" event. Professor Zhang Zhoujie, through the "Butterfly" publicity project conducted by the client Intel for BMW i of BMW, was found by netizens to be highly similar to The Great Compassion's work "Virtual Butterfly", suspected of plagiarism, and sent a private message to Great Compassion. As a result, the two sides launched a debate between infringement and originality. According to comprehensive multi-party reports, the controversy focuses on three aspects: the creative method and the creative process; when and how it was published; Infringement or normal creation.

Creation, publication and fair use are the basic concepts regulated by the Copyright Law, and unfairly grabbing commercial benefits contrary to business ethics belongs to the usual logic of infringement regulated by the Anti-Unfair Competition Law. These basic concepts and legal mechanisms can also be discussed and explained by non-legal persons, without further ado. The "Butterfly" incident is quite unique in that the work in dispute is not a typical type of work specified in the mainland's Copyright Law, which Professor Zhang calls "a new digital artwork for data visualization 'DA#EVO'", and DaBei calls it a "virtual butterfly". In addition, both sides use data and algorithms as the main means of creation, which is very different from the traditional depiction of copyright cases, the comparison of bridges and plots, and even comparable to the mystery of "robot creation" in the current circle. How to define originality, plagiarism, which are public elements and which are creative spaces?

I am not a professional in computing and modeling, and I do not know anything about this, and I dare not use too much beak on both sides of the technology. However, from the perspective of the originality required by the work, the work mainly evaluates the creation that is finally displayed, and assists in the judgment of the creation method. For example, the photographic work not only considers the degree of innovation of the final picture, but also assists the technical considerations of the shooting, the elements of light, angle of view, lens, etc., which does not rule out the situation that the remake may also create the work.

As far as the "butterfly" event is concerned, the pure technical elements such as "using the driver to run the neural network algorithm", "iconic algorithm technology Mesh", "modeling" and so on are mainly created in the creation mode, and the creative materials such as the basic bitmap, color and model of the butterfly are used as the basic elements of the call; The creation presents a colorful and dynamic picture and perspective effect in 3D. If we recognize the legal status and identity of robot creation, then no matter what intelligent learning methods, automatic algorithms and other technical means are used, as long as the final presentation is a creation that is different from the existing work, it is in line with the concept of works in the Copyright Law, and naturally should be treated the same as human creation works. But the reality is quite bone-chilling, and does not recognize the same as man and machine, the US Copyright Office rejected the registration of robot works is proof, even if the first case of domestic AI creation, there is no explicit AI is the main body of creation, as for the "Dreamwriter writes articles" words, more is the excessive interpretation of the ideal of fullness.

Based on the tone of legal humanism, natural talents are the real subjects of work creation, authentic authors. Of course, it is not to say that the whole process of creation must be written out, drawn and photographed by natural person authors one by one, and the use of modern technology and equipment to assist creation is a common practice, and it is also in line with the evolutionary logic of copyright law, from Gutenberg to digital on-demand machine, it is precisely because the introduction of technology expands the type and dissemination mode of the work, it can be said that technological development has shaped the empowerment model and protection mode of the copyright law. As analyzed in ai first case, "the specific expression of this article and its personalized choices and arrangements derived from the creator, generated by Dreamwriter software, reflect the plaintiff's needs and intentions for the stock review article as a whole", in other words, the machine assisted in the completion of the creation, reflecting the overall creative will of natural persons. In fact, looking at the tour, who can deny the workability and copyright of animation, film and VR games because they use the technology of shooting, modeling and intelligent computing?

In the case of the "butterfly" incident, data, intelligent algorithms and programs are not the key to the problem, and even if these technical issues are discussed, they should be discussed in the context of technical intellectual property rights such as patents and trade secrets. In the discussion of the issue of creation and works, the object of legal evaluation should be limited to the expression of originality, and the intention of creation, the theme of the work, the way of market use of the work and the equipment technology should not be the content of the evaluation. The works of Great Compassion express the flat and multi-dimensional colored butterflies, the colors and shapes of the butterflies are the final forms of expression, and as for the array of arrangements and combinations as rules, they are not the objects protected by the mainland copyright law; Professor Zhang's main creations are embodied in butterfly images, color schemes, and interactive dynamic pictures.

The intersection of the two works is the pattern and color of the butterfly, which requires a comparison between the whole and the details to determine the similarity or similarity of the compositions of the two sides. As for the expression of butterflies as public materials, it does not affect their creation as an object, and even realistic photography and painting can form butterfly works. After all, unlike factual works, the creative space of works of art has unlimited possibilities, and there is no exclusion between authors.

It is interesting to note that the "butterfly" incident mentioned two marginal issues of the Copyright Law, which are also controversial professional issues in recent years, one is the effect of the work, including the aural effect, visual effect and perceptual effect; The second is to follow the trend of creation, whether it squeezes the market space of the other party and constitutes unfair competition.

As far as the effect of the work is concerned, it can be a description of the expression of the work, and it can also be the reader's intuitive feeling of the work. If it is a description of the form of the work, it may fall into the trap of the dichotomy of thought and expression, entangled in which elements belong to thought and which elements belong to expression. In fact, we do not have to be too metaphysical, the form of the work refers to the form of expression, so as to distinguish between different types of works, there is a division of written works, fine art works, audiovisual works, etc. Formally, the flat butterfly pattern, the 3D multi-dimensional butterfly pattern, and the digital dynamic butterfly have differences in expression, but it does not exclude the multi-dimensional reproduction of the plane and the dynamic interpretation of the static, so this formal effect does not help the determination of whether the work is infringed or not. If the effect is limited to the reader's feelings, it is equivalent to introducing the reader as a third-party judgment on whether it is infringing or not, which is contrary to the basic logic of the judgment of copyright experts, so the reader's feelings do not have the significance of copyright law.

In terms of the issue of whether the latter constitutes unfair competition, there are two views in the industry: conservatives and radicals. Conservatives believe that if the latter does not constitute intellectual property infringement against the former, it naturally belongs to the territory of free competition, and should no longer be used to encircle the space for competition through unfair competition allegations; The radicals believe that the use of elements identical or similar to other people's works, even if it does not constitute infringement of the work, constitutes unfair competition infringement, and the "Jin Yong v. Jiangnan case" is such a method. We believe that acts other than those typical infringements of intellectual property rights should not be easily identified as constituting unfair competition, and that the requirements of "recognized business ethics" should be treated with caution and the modesty of competition law should be adhered to.

In short, the Xiaoman case is not the beginning, the butterfly incident is not the final chapter, in the face of all kinds of allegations of infringement of works, the basic principles and operating mechanisms of the Copyright Law should be kept correct, and the innovation of creation and dissemination methods should not be confused with the originality of the work itself.