The Law of the Starry Sky
Editor丨Law of the Starry Sky
[Editor's note: This article is the original exclusive first release of Toutiao, please do not plagiarize and reprint]
«——[·Preface·] ——»
By analyzing the case of Tencent v. Yingxun for copyright infringement, this paper examines the characterization and attribution of artificial intelligence creations, as well as the aspects from which to judge the infringement and the way in which the perpetrator is liable, based on Tencent's litigation claims.
AI works are an emerging branch of the field of intellectual property, and content generated by AI software has the same rights protection as traditional creations.
With a completely different generation mechanism and unique technical advantages, artificial intelligence software shows very important value in information collection and data analysis.
It is especially important for highly specialized industries, involving a wide range of information and complex and sophisticated data required.
Laws often lag behind, and new things always appear before the legal provisions that specifically restrict them, but in the real life of society, relevant legal disputes have already arisen and need to be resolved by justice.
So how to solve, how to solve, and what principles to follow to solve it requires discussion and research from all walks of life, combined with different cases, summarizing the special in the universal, and finding a path more suitable for the protection of artificial intelligence works.
«——[·Case Description·] ——»
On August 20, 2018, the plaintiff Shenzhen Tencent Computer Systems Co., Ltd. first published an article entitled "Afternoon Review: Shanghai Index Rises Slightly by 0.11% to 2671.93 Points Led by Communication Operations, Oil Exploitation and Other Sectors" on Tencent Securities Network (hereinafter referred to as the "article involved").
The article involved in the case was put into use by the plaintiff, through large-scale collection and analysis of the text expression of stock finance articles, after grasping the actual needs of different types of readers, and then establishing the article structure according to its own expression intention that distinguishes itself from others, and comprehensively analyzing and writing the aggregated historical data and the newly obtained information that morning.
Without the consent of the plaintiff, the defendant, Shanghai Yingxun Technology Co., Ltd., copied the article in question on the day it was made public and re-posted it on the webpage of the "Online Loan Home" operated by the defendant, and disseminated it to the public through the Internet, so that the public could freely obtain the article in the "Online Loan Home".
The plaintiff claimed that the defendant copied and published the article without his consent, which infringed the plaintiff's copyright, and also claimed that the defendant's practice seriously undermined the fair business competition environment, constituted an act of unfair competition, and brought adverse effects to the plaintiff.
He then filed a lawsuit with the court, requesting the court to order the defendant to stop the infringement, eliminate the impact, compensate for losses, and bear the reasonable expenses arising from the lawsuit.
The court first determined that the article in question belonged to a work within the scope of the Copyright Law and was protected by the Copyright Law by judging the originality of the internal core of the article in question and the difference between its external expression and other existing works.
Secondly, the article in question was a work completed under the auspices of the plaintiff using Dreamwriter computer software, and the creation process reflected the will and purpose of the plaintiff, and after completion, it was published on the Tencent Securities Channel operated by the plaintiff.
Then, according to this circumstance, it is considered that the article in question is a work of a legal person, and the plaintiff thus enjoys the copyright and other relevant rights of the article in question.
The plaintiff is a qualified subject and has the right to file a lawsuit in court against the infringement of other natural persons, legal persons or unincorporated organizations.
Without the consent and permission of the plaintiff, the defendant published the article involved in the case on the website of "Online Loan Home" operated and managed by the defendant itself, and provided the content of the article to the public, so that the public could obtain the content of the article on the website operated by the defendant at any time.
The defendant's conduct constituted infringement, specifically infringing the plaintiff's civil rights such as copyright and information network dissemination rights for the articles involved in the case, and should therefore bear civil liability.
«——[·Case Controversy·] ——»
I. Can the plaintiff enjoy the copyright of the AI work?
The first issue in this case was whether the plaintiff enjoyed the copyright of the article in question, which involved two issues.
The first question is whether the article in question is a "work"
The second question is, is the plaintiff the copyright owner of the article in question?
The Dreamwriter artificial intelligence computer software that generated written works in this case was originally a writing assistance software system independently researched and developed by Tencent Technology (Beijing) Co., Ltd., which can generate written works based on algorithms and data.
On May 9, 2019, Tencent obtained the computer software copyright registration certificate of "Tencent Dreamwriter Software [Dreamwriter] V4.0" issued by the National Copyright Administration of the People's Republic of China (No. 3868479).
Tencent Technology (Beijing) Co., Ltd. is the head office of the plaintiff in this case, and the head office licenses the Dreamwriter computer software to the branch company, that is, the plaintiff, after obtaining the computer copyright registration.
The plaintiff put the software into use, and after analyzing the structure of the article, collecting stock market data, and understanding the needs of the audience, he created and published the article in question.
The plaintiff believes that the rights to the AI software belong to themselves, and the right to create and generate articles by the software naturally belongs to themselves.
However, without any permission, the defendant copied the articles involved in the case and published them on the website operated by it operated by the defendant intact, so that the public could freely obtain the articles involved in the case on the website operated by the defendant.
What is controversial is whether the article in question can meet the scope of works protected by the Copyright Law.
A court has heard similar cases before, in which the defendant held that the entire process of AI generating works, such as collecting data, analyzing the market, and creating and publishing works, was done by software, and the plaintiff did not participate in it, did not devote any form of thinking and labor, so AI creations cannot be characterized as works.
Combining the theory with this case, the article involved in the case is first analyzed in terms of defining the nature of the work.
The article involved in the case is an article formed by a combination of words and symbols, which conforms to the external expression of the work; Secondly, from the most critical judgment criteria of the work, one by one, originality, artificial intelligence software is equivalent to computer software, it does not appear autonomously, it is generated by the software designer according to his own creative will.
Artificial intelligence software fully reflects the designer's concept, it carries the creative purpose given by the designer, then its production is of course original, reflecting the designer's creation.
The operation of the Dreamwriter artificial intelligence software is presided over by the plaintiff's main creative team, and the purpose of using this artificial intelligence software is to generate financial news articles, which is targeted, which also reflects a certain originality.
II. Did the defendant constitute an infringement?
The article in question was an article independently generated by its staff using computer software under the auspices of the plaintiff, and was a legal person work whose rights belonged to the plaintiff.
On the day the plaintiff published the article, the defendant copied the article in question without the plaintiff's permission and published it on the website operated by the defendant without attribution.
So that the public can obtain the articles involved in the case at a specific location on the website operated by the defendant, and freely disseminate the articles involved in the case on the Internet, and the defendant uses the traffic of the public clicking on the articles to obtain benefits, it can be considered that the defendant's behavior is for the purpose of obtaining benefits.
The article in question is the product of the energy and intelligence invested by the plaintiff's team and staff, and it has its own dissemination, as well as its own value.
Since the article in question embodies the intellectual achievements of the producer, it cannot be arbitrarily placed in the public domain, disseminated without permission, and used for profit.
Since the text in question was a work, it should be protected.
The plaintiff argued that the defendant's conduct also undermined business ethics and undermined an equal business environment based on honesty and trustworthiness, which amounted to unfair competition.
However, the court held that the defendant had infringed the copyright enjoyed by the plaintiff, so it provided relief to the plaintiff in accordance with the relevant provisions of the Copyright Law, and did not seek relief again in accordance with the applicable conditions of the Anti-Unfair Competition Law.
III. How should the defendant bear tort liability?
The plaintiff also filed a request to the court to order the defendant to publish a statement in a prominent position on the homepage of the official website "Online Loan Home" operated by the defendant for one month in a row, so as to reflect in the statement that the defendant had taken action to stop the infringement, so as to eliminate the negative impact on the plaintiff, and also bear the losses caused to the plaintiff.
The request for the defendant to issue a statement reflecting in the statement that the defendant had taken action to stop the infringement and eliminate the negative impact on the plaintiff was controversial.
Only when it has caused a negative impact on the reputation of the right holder, or damaged the plaintiff's moral rights in the article in question, and has a negative impact, it is necessary to eliminate the above impact and restore the original state of the right.
In this case, the defendant copied the article in question and published it on the website operated by the defendant for public access without the plaintiff's permission and consent, and did not indicate the source and original author, which did not reflect respect for the original author's creative consciousness.
Based on this fact, the defendant infringed the right of publication and the right of authorship under the Copyright Law, both of which are contents of moral rights.
However, the court held that during the examination process, no relevant evidence was found to prove that the defendant's reproduction and publication acts damaged the plaintiff's commercial reputation or other moral rights and other rights, and did not adversely affect the plaintiff, so it did not support this claim.
«——[·Case Conclusion·] ——»
Prior to this case, there were similar cases involving AI works, where the court at that time held that AI creations did not meet the attributes and conditions of the work, did not constitute a work, and were not protected by the Copyright Law.
The judgment of the Shenzhen Nanshan Court can be said to have played a landmark role in the field of artificial intelligence works.
In today's endless emergence of new things and the iterative update of scientific and technological development, it is the general trend to protect and remedy artificial intelligence software itself and its products within a reasonable and legal scope.
All works that do not recognize the nature of artificial intelligence creations that meet the conditions of the attributes of the work are unwilling to accept the development of society.
Law cannot precede the development of reality, there will be more emerging things in the future, since the era and science and technology are constantly improving and developing, the provisions of the law cannot be limited to traditional things forever.
The emergence of new things can promote the improvement of the law.