What are the new challenges facing intellectual property protection in the era of digital intelligence?

China Youth Daily, China Youth Network trainee reporter Zhao Limei, Jia Jiye

Reporter Zhang Junbin

"My voice has been stolen, and I want to defend my rights." Ms. Yin, the voice artist, found that her voice was used in the commentary of some movies and games, but she did not authorize it. It is understood that after her voice was "AI", it was sold on an App called Magic Sound Workshop. Subsequently, she took the infringer to court.

Recently, the first instance verdict of this "AI voice infringement case" in the country was announced. The Beijing Internet Court found that the defendant had committed infringement and required the defendant to apologize in writing to Ms. Yin and compensate her for various losses of 250,000 yuan.

At present, there are more and more cases of personal voices, portraits, and works created by Ms. Yin being inexplicably "AI-ized", and many of them are used by others for profit, and even used for illegal acts such as fraud, without the infringed person even knowing about it.

It can be said that in the era of digital intelligence, new technologies, new business formats and new models are booming, bringing new opportunities and challenges to global intellectual property protection.

At the end of April, the 2024 Zhongguancun Forum "Global Intellectual Property Protection and Innovation Forum" focused on the theme of "Digital Intelligence Era: Intellectual Property and Sustainable Development", and a number of well-known experts, scholars and entrepreneurs from home and abroad offered suggestions and suggestions.

Liu Hua, the representative of the World Intellectual Property Organization in China, said at the forum that the application of technologies such as AI provides an unprecedented and powerful tool for protecting online intellectual property. At the same time, the application of new technologies such as AI also brings new challenges to the protection of intellectual property rights, such as whether AI technical solutions and created content can be patented and protected by copyright, whether the use of some data is legal, how to respect personal privacy and how to attribute rights.

"Troubles" in the growth of AI

At present, the intellectual property troubles in the growth of AI are becoming more and more obvious, from AI voice swapping to AI face swapping, to generative AI production of pictures, videos and other works of infringement frequently appear.

On April 25, Zhao Changxin, vice president of the Beijing Internet Court, said at the forum that in the era of digital intelligence, the court is facing the test of more emerging cases. He said frankly that for the court, "the most prominent problem we face is the diversity of rights objects", including NFT digital collections, some virtual products, especially the more popular virtual character images.

At the scene, Zhao Changxin also revealed more details about the country's first "AI voice infringement case". The speech set itself is a collection of data, how to protect the rights and interests of the right holder? In this case, it also involved the relevant departments issuing a registration certificate for the data intellectual property rights of this voice set, how to determine the evidentiary validity of the registration certificate? These are new challenges for the Court.

In the judgment, the Beijing Internet Court held that the scope of protection of natural persons' voice rights and interests can be extended to AI-generated voices on the premise of being identifiable. The determination of the recognizability of AI-generated voices should comprehensively consider the use of the actor, and whether the ordinary audience in the relevant field can recognize it as the criterion for judgment.

In fact, the Beijing Internet Court has already sentenced a series of relevant typical cases, including the first case in mainland China involving the copyright of "AI Wensheng Diagram".

On February 24 last year, the plaintiff in the case used open-source software to generate an AI image and posted the image on a social platform, where the image was stolen by others without permission and posted on another platform with the signature watermark removed. For this reason, the plaintiff sued the infringer in court.

This case of the copyright of "AI Wensheng Picture" mainly involves three major disputes: first, whether the picture constitutes a work and what type of work it constitutes it; second, whether the plaintiff enjoys the copyright of the pictures in question; The third is whether the accused act constitutes infringement and whether the defendant should bear legal responsibility.

Zhao Changxin said that within the framework of the existing copyright law, the Beijing Internet Court recognized the nature of the AI literary image as a work and was protected by the copyright law. In terms of the ownership of rights, it is determined that the AI Wensheng image generation belongs to the user. He said: "We have made a determination that we think is more in line with the current trend of domestic development data models. ”

In November last year, the court made a first-instance judgment in this case, finding that the defendant had infringed the plaintiff's right of authorship and information network dissemination rights in respect of the pictures involved in the case, and should publish a statement on social platforms to apologize and compensate the plaintiff 500 yuan.

The outcome of a new jurisprudence often serves as a rule-setter. Zhao Changxin said that for new disputes, judges need to continue to study new technologies and norms under the existing legal framework, and must be very careful to strike a balance. "If a specific case does not have a very rational judgment in terms of balance, especially for the judgment of the future direction of industrial development, it is likely that a precedent will affect the development of the entire Internet technology, and it is likely to affect the further development of AI technology."

In the era of digital intelligence, infringement is larger in scale and more hidden

There are many similar infringements abroad. Naokazu Okuyama, president of the International Association for the Protection of Intellectual Property, said that the wide application of AI and the metaverse has given more room for infringement.

Last year, the first NFT trademark case in the United States, the Meta Birkins case, attracted more attention. Artist Mason Rothschild digitally created colorful "MetaBirkin" NFTs (digital images), which were initially issued at a starting price of about $450 per piece, and were later resold at multiple times the original price. Subsequently, Hermes took him to court.

Subsequently, the court ruled that Rothschild had transferred the domain name and related materials to Hermès and handed over the profits he had made from them.

This is not an isolated case, and it is not uncommon for trademark rights in the real world to extend to the virtual world.

Naokazu Okuyama also noted that the use of machine learning, generative artificial intelligence (AIGG) and other technologies can make very realistic videos, which is enough to make real people, and in scenarios such as the metaverse, protecting the creativity and efforts of creators and artists has become a new problem.

"We see that patent infringement across borders is very easy to happen." In order to avoid direct patent infringement, some companies choose to serve clients in countries where patent protection exists in countries where there are no relevant patents, Okuyama said.

Diao Yunyun, Vice President of Legal Affairs of Tencent Group, also noted that the scale of infringement has become larger and higher due to technological development, and the infringement has become more and more hidden, and there are more and more infringement scenarios, including short video infringement, search infringement, e-commerce infringement, online disk infringement, and piracy website infringement. She also paid attention to the fact that some leading Internet companies are also continuing to infringe on repeatedly.

Qi Zhiguo, deputy procurator general of the Beijing Municipal People's Procuratorate, said that under the new format of the digital and intelligent economy, infringement methods are constantly being iteratively updated. There is a new trend of intellectual property crimes, such as the expansion of infringement targets, the frequent emergence of new infringement methods, and cross-competition with cybercrime. This also poses new challenges to the traditional case-handling model.

Qi Zhiguo introduced that in a case of infringement of digital copyright that they once handled, the criminal gang used "credential stuffing" (a hacking technology) technology to steal tens of thousands of member information from a number of e-book websites, not only illegally selling citizens' personal information, but also illegally obtaining a large number of e-books, and then reprinting them on their own pirated websites for others to browse, and earning advertising fees with traffic. These more than 10 members of the criminal gang are distributed all over the country, and they have established "credential stuffing" through online contacts to obtain account information, and built a black industrial chain such as pirated and infringing websites. At the same time, setting up website servers outside the country to evade detection is more difficult than you can imagine to solve such cases.

At the same time, the black and gray industry chain in the digital field is also more fragmented. Qi Zhiguo pointed out that the Beijing procuratorate has given full play to the role of big data as an engine for intellectual property protection, and has developed a series of big data legal supervision models such as "cracking down on and rectifying counterfeit and inferior sales" and "malicious litigation governance of intellectual property rights", and constantly shaping new quality legal supervision capabilities.

Promote and standardize both "upward" and "good" peers

At present, the development of new technologies such as AI is changing with each passing day, and new issues in the field of intellectual property are "running" after new technologies.

"The main challenge and obstacle we face is that technology is evolving much faster than the legal and legislative spheres." Aoyama said that regulatory innovation is therefore urgent.

Liu Hua said that in the face of the fragmentation of intellectual property rights caused by differences in global technology, law and market, countries should actively build a governance system that adapts to the development of local technology, and at the same time should strengthen global cooperation, open relevant dialogues and exchanges, share relevant practices, and jointly promote the formation of international consensus, which will help clarify legal responsibilities, fairly divide the ownership of rights, and create a fair global intellectual property and innovation ecosystem.

"The global innovation hub is moving east to Asia." Liu Hua pointed out that Asia's share of global IP filings has risen from 50% 20 years ago to 70% today, and six of the world's top 10 science and technology clusters are from East Asia, demonstrating Asia's leadership as a global leader. China has made remarkable achievements in the field of intellectual property and innovation and creativity. In 2023, China ranked 12th in the GII report. Since last year, China has had the largest number of science and technology clusters in the world, currently 24.

It is worth noting that China has leapt into the field of cutting-edge information technology in just a few decades, becoming a core and active participant in the international value chain. Liu Hua introduced that at present, 60% of the world's computer technology patents, 40% of artificial intelligence patents and 33% of semiconductor patent applications come from China.

As a result, China's IP governance solutions in new areas such as AI have attracted much attention.

Shi Jianzhong, vice president of China University of Political Science and Law and dean of the Institute of Data Rule of Law, believes that promoting and regulating the development of AI should be equally important, which requires proper handling of the interaction between data, algorithms and computing power. "By promoting the 'upward' development of AI, and through standardization, AI will develop in the direction of 'good'."

Shi Jianzhong believes that at present, it is possible to explore differentiated institutional design in the pre-training stage and application stage of generative AI. In the pre-training stage, a tolerant institutional concept can be adopted to ensure that training data is easy to obtain, and operators can be encouraged to cooperate in computing power and algorithms, and a fault-tolerant mechanism for AI-generated content can be established. Strict liability can be applied to the responsibility configuration at the application stage to regulate the application and development of generative AI. He also pointed out, "Of course, tolerance is not laissez-faire, and if it is some deliberate behavior, I am afraid that there is still corresponding responsibility." ”

"Protecting innovation is to protect intellectual property rights, and only by increasing protection can we stop infringement." In Diao Yunyun's view, the protection of intellectual property rights requires pluralistic co-governance and pluralistic governance, including platforms, enterprises, and self-media accounts, and rights holders must improve their awareness and ability to protect copyright protection. Among them, for platforms, in order to achieve high-quality intellectual property protection, it is necessary to adopt governance solutions such as ex-ante protection measures. At the same time, she also called on the judiciary to play a greater role in the protection of intellectual property rights, and to establish rules to enhance protection.

Qi Zhiguo said that the Beijing procuratorate will continue to strengthen the procuratorial protection of intellectual property rights in strategic emerging industries, key fields, and key core technologies, fully perform their procuratorial functions in accordance with the law, and cooperate with all parties to promote the comprehensive protection of intellectual property rights and the healthy development of the digital economy.

Zhao Changxin said that in the next step, the Beijing Internet Court will continue to adhere to the rules of adjudication, promote governance, and help development, guide the standardized and orderly development of new technologies, contribute judicial wisdom to the protection of intellectual property rights of emerging technologies, and promote the development of new quality productivity.

Source: China Youth Daily client