Since the AIGC technology has become more and more mature, not only various AI models have emerged in China, but also various AI education and training institutions have "sprung up", starting the journey of "preaching, teaching and solving doubts" in the AI industry. In this kind of teaching process, in order to enable students to have a deeper understanding of the use methods and tricks of various AI products, AI education and training institutions often use various finished products output by the product as examples, some of which are generated based on well-known IPs. Therefore, a question worth thinking about arises: "Does the use of AIGC works based on well-known IP in AI teaching and training courses infringe the copyright of the IP owner?"
01
Identification of infringements and possible ways to justify them
The premise of determining whether an act infringes the copyright of another person is that the act itself is an infringement, and on this basis, if there are no other reasons for exemption or obstruction of infringement liability, then the infringing nature of the act can be finally confirmed. Therefore, the first step in answering this question is to determine whether the act of generating and using AIGC works based on IP constitutes infringement.
As for the judgment of this step, I believe readers will not have any doubts - for well-known IP, if the act of generating and displaying AIGC works without the permission of the IP owner or its licensor, of course, it infringes the copyright such as the adaptation right or reproduction right of the IP owner or its licensor, and is therefore a copyright infringement. Therefore, the only thing worth considering is whether the act can be justified as falling within the category of "fair use". This is also the core issue discussed in this article.
According to Article 24 of the Copyright Law, there are three possible ways to justify such a case, i.e., it may fall into one of the following three situations:
(1) Use the published works of others for personal study, research or appreciation;
(2) For the purpose of introducing or commenting on a work or illustrating a certain issue, appropriately quoting the published works of others in the work;
(3) Translation, adaptation, compilation, broadcasting, or a small amount of reproduction of published works for the use of teaching or scientific research personnel, but shall not be published or distributed.
02
Analysis of the justification of the infringement
1. Path 1: Reasonable use for personal use
The key to determining whether the inscription constitutes fair use for personal use lies in the judgment of "personal purpose", that is, whether it is the use of another person's work for the purpose of "personal study, research or appreciation".
The embodiment of this "personal purpose" is not only that the perpetrator subjectively does it for the purpose of "studying, researching, or appreciating", but also that the perpetrator objectively reproduces it only for personal purposes within the family or within a very limited scope. In other words, as far as fair use for personal use is concerned, this kind of "for personal study, research or appreciation" must be limited to a certain scope and not open to the public, and it is for this reason that Article 7.10 of the Guidelines for the Trial of Copyright Infringement Cases of the Beijing High People's Court clearly stipulates that "if the defendant provides the work to others through the information network without permission, the reasonable use defense that it belongs to 'using the published work of others for personal study, research or appreciation' is not supported." ”
Therefore, based on the foregoing discussion and provisions, since the inscription act was made in the process of online education and training, the act naturally falls under the situation of "providing works to others through the information network without permission", so it cannot be justified on the basis that the act is fair use for personal use.
2. Path 2: Appropriate citation and fair use
Article 27 of the Regulations for the Implementation of the Copyright Law (repealed) promulgated in 1991 clearly stipulates that the following conditions must be met: "(1) the purpose of quotation is limited to introducing or commenting on a certain work or illustrating a certain issue; (2) the cited part cannot constitute the main or substantive part of the cited work; (3) it must not harm the interests of the copyright owner of the cited work." On this basis, the Shanghai High People's Court rendered a judgment in 2002 that in addition to the aforementioned requirements, "it shall also comply with the spirit of Article 22 of the Copyright Law, which stipulates that the name of the author shall be indicated and other rights enjoyed by the copyright owner in accordance with this Law shall not be infringed." ”
Although the Implementing Regulations have been repealed and the relevant provisions have been deleted from the Implementing Regulations of the Copyright Law since 2002, there are still references to the composition of fair use by appropriate citation. For example, Article 7.11 of the Guidelines for the Trial of Copyright Infringement Cases by the Beijing High People's Court points out that the following factors are generally considered in determining whether the alleged infringement is fair use for proper citation: (1) whether the cited work has been published, (2) whether the purpose of the quotation is to introduce or comment on the work or illustrate the problem, (3) whether the proportion of the cited content in the alleged infringing work is appropriate, and (4) whether the quotation affects the normal use of the cited work or harms the legitimate interests of its right holders.
According to the factors specified in the guidelines: (1) the work cited in the inscription act is usually adapted from a well-known IP, and the original work has been published; (2) the purpose of quoting the work is usually to explain the use of the AI product and show its effect, so it is "for the purpose of introducing or commenting on the work or illustrating the problem"; (3) The cited content usually accounts for only a small part of the entire AI education and training course, and most of the content is still the introduction and teaching of AI products, so the proportion is appropriate; (4) The purpose of quoting the work is to teach, and there is no possibility of replacing the original work or IP, nor will it harm the legitimate interests of the right holder.
Therefore, according to the judgment elements of the guideline, under the premise of "indicating the name or title of the author or the title of the work", under normal circumstances, the inscription act has a high possibility of constituting appropriate quotation type fair use.
3. Path 3: Use the work for teaching or scientific research purposes
For such types of fair use, the requirement of "teaching or scientific research purposes" emphasizes the subjective "non-profit", and it clearly restricts the identity and use of the user, that is, it must be "used by teaching or scientific researchers" and must be "for the teaching of school classroom teaching or scientific research". In contrast, AI education and training institutions certainly have a profit-making purpose in selling courses, and in fact they are aimed at the public, and there is no restriction on the identity of the users, so it can be judged that the inscription does not belong to this type of fair use.
In this regard, Article 7.12 of the Guidelines for the Trial of Copyright Infringement Cases of the Beijing High People's Court also clearly stipulates that "if the published works of others are translated or copied in the education and training conducted for the public without permission for profit, the defendant's claim that it falls under the fair use provided for in Article 22, Paragraph 1, Item 6 of the Copyright Law shall not be supported." ”
03
Write at the end
Although the preliminary conclusion of this article is that "the use of AIGC works based on well-known IP in AI education and training courses does not infringe the copyright of the IP owner because it constitutes fair use of appropriate citation", careful readers must have noticed that the qualifier "usually" is used in the previous discussions, and it is required to "indicate the author's name or title and the title of the work". In other words, if the actor does not "indicate the name or title of the author or the name of the work" or simply uses the unpublished work of others or has other factors in the AI education and training course, then the act should still be considered to infringe the copyright of the relevant right holder.
The above is today's sharing, thank you readers!
If you have friends around you who are interested in new technology and digital economy, welcome to forward it to Ta.
For more information, please contact our team
飒姐工作微信:【 xiaosalawyer】
Sister Sa's work phone:【 +86 171 8403 4530】