Currently, cutting-edge technologies such as artificial intelligence, big data, and cloud computing are rapidly developing, and copyright, like many other industries, is at the forefront of a technological revolution.

As an important way of cultural dissemination and inheritance, the copyright field actively embraces new technologies. The emergence of many new products, forms, models, and services has brought new growth and opportunities to the industry, as well as many new challenges and problems. Facing the new development situation, it is worth considering how to make efforts in judicial protection, technological protection, and other aspects to explore the development path of China's copyright industry.

Today we invite experts to share their observations, suggestions, and prospects on copyright protection, new technology development, and telling the story of Chinese copyright.

Copyright, as a fundamental resource of culture, an important embodiment of innovation, and a pillar industry of the national economy, plays an increasingly important role in accelerating the construction of a new development pattern and building an innovative country, cultural powerhouse, and intellectual property powerhouse.

2024 is a crucial year for achieving the goals and tasks of the 14th Five Year Plan. Standing at a new historical starting point, we must continuously improve the level of legal protection of copyright, focus on key issues, explore copyright protection rules for new technologies and formats, focus on prominent contradictions and urgent issues in the field of copyright, actively participate in the reform of the global governance system of copyright, and comprehensively embark on a new journey of building a strong copyright country.

Explore copyright protection rules for new technologies and formats

With the vigorous rise of a new round of technological revolution and industrial transformation, technological innovation has entered an unprecedented period of intensive activity. New technologies and new business models are constantly touching the legal boundaries, and new copyright issues related to cutting-edge technological fields are constantly emerging. In the face of the development demands of new technologies and new business models, the protection of copyright legal system must keep pace with the times.

Artificial intelligence is a new engine for economic development and a new focus of international competition. The major developed countries in the world regard the development of artificial intelligence as a major strategy to enhance national competitiveness and maintain national security. However, artificial intelligence may also bring new problems such as legal impact and governance disruption. In terms of the legal system of copyright, the major challenges brought by artificial intelligence mainly focus on two issues: the qualification of copyright for content generated by artificial intelligence, and the legality of the use of works in artificial intelligence applications.

The copyright qualification of content generated by artificial intelligence mainly involves whether the content produced by artificial intelligence constitutes a work, and if it constitutes a work, who owns the copyright. The basic theory of the traditional Copyright Law holds that works should be the intellectual achievements of human beings, and only human intellectual activities can be called creations. Article 3 of China's Copyright Law also clearly stipulates that works refer to "intellectual achievements in the fields of literature, art, and science that are original and can be expressed in a certain form". Before the copyright issue of content generated by artificial intelligence attracted widespread attention, the legal community had discussed whether content generated by animals could constitute works.

For example, in the United States, a black macaque used a photographer's camera to take several selfies, and its copyright issues even sparked two lawsuits. To this end, the US Copyright Office has also issued relevant documents emphasizing that only works created by humans are protected by the Copyright Act. Some argue that the content generated by artificial intelligence is not a result of human intelligence and therefore does not constitute a work; Some people also believe that artificial intelligence is just a tool for humans to create works, and therefore the content generated by artificial intelligence is also a result of human intelligence, thus constituting works.

As long as humans can exercise sufficient 'control' over machines, their authorship will not be 'usurped'. In the current technological context, artificial intelligence machines cannot operate on their own and are clearly controlled by humans. Therefore, the content generated by artificial intelligence can certainly constitute works. The issue worth discussing is whether control is in the hands of the developers of artificial intelligence machines or in the hands of users.

Recently, the Beijing Internet Court, in the judgment called "the first case of AI Wenshengtu" by many media, defined the "work" attribute of pictures generated by AI and the "creator" attribute of users. This judgment qualifies the copyright of content generated by artificial intelligence, which has contributed Chinese wisdom and provided a Chinese solution to this important issue that has attracted widespread attention from the international community.

It is worth noting that the Beijing Internet Court has just made the first instance judgment of "AI Wensheng Picture", and has accepted another copyright infringement case involving AI: four painters believe that an AI painting software uses their works as training data without authorization to generate pictures highly similar to the original works, which infringes their legitimate rights and interests. This case will confront a more critical issue in the development of the artificial intelligence industry, namely whether the data mining behavior of artificial intelligence constitutes infringement if the relevant information is within the copyright protection period during the process of data input, machine learning, and data output using massive amounts of data as objects.

In the era of artificial intelligence, the application scenarios of data mining and machine learning are very diverse. Artificial intelligence applications require data as the foundation, and the quantity of training data directly determines the quality of output results; If a fair use system applicable to artificial intelligence is not established, it will result in AI developers having to use easily accessible and legally low-risk data sources to train AI, even if these data are clearly biased.

Therefore, reforming the fair use system and constructing a friendly Copyright Law for the artificial intelligence industry not only plays an important role in promoting the industry itself, but also reflects an important "spillover effect": solving the problem of algorithmic bias or discrimination. At present, the development of China's generative artificial intelligence industry is facing significant legal risks. It is recommended to introduce specialized data mining exception clauses when amending the Implementation Regulations of the Copyright Law.

Focus on resolving prominent contradictions and urgent issues

The copyright legal system is an important component of national economic, technological, and cultural policies. The provision of copyright protection for certain knowledge products and the level of copyright protection must be based on the overall policy objectives of the country.

In the face of the surging tide of new technologies and formats, when carrying out copyright work, we should focus on examining China's basic national conditions and industrial status, and strive to solve prominent contradictions and difficulties.

In the era of digital economy, with the development of new generation information technology, such as big data, mobile Internet, cloud computing, etc., piracy has become increasingly diverse, and piracy has become increasingly hidden, even with the characteristics of piracy industrialization, which has caused great losses to rights holders.

For piracy activities, we should adhere to the principle of balancing leniency and severity, and treating them differently. Strictly distinguish between general civil infringement and criminal infringement of copyright crimes; For criminal behavior, it is necessary to further differentiate between the "infringement based business type" and other types. We will focus on cracking down on criminal acts of copyright infringement based on infringement, protecting the legitimate rights and interests of copyright owners, stabilizing social expectations, stimulating innovation and entrepreneurship vitality, and continuously optimizing the business environment.

In January 2023, the Supreme People's Court and the Supreme People's Procuratorate publicly solicited opinions on the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement (Draft for Comments)". This judicial interpretation incorporates the latest spirit of the Eleventh Amendment to the Criminal Law and systematically integrates the three previous criminal judicial interpretations in the field of intellectual property. In 2024, this judicial interpretation is expected to be issued, providing refined guidance for punishing copyright infringement crimes in accordance with the law and increasing the criminal judicial protection of copyright.

In recent years, malicious lawsuits in the field of copyright have occurred frequently, causing high social attention. Malicious litigation refers to the act of a party knowing or should have known that the purpose of their lawsuit is unjust, yet still seeking protection, resulting in the occurrence of unjust litigation and infringement of legitimate rights and interests. Malicious litigation disrupts judicial order, wastes judicial resources, and causes serious damage to judicial fairness, authority, and value. Malicious litigation is not a unique phenomenon in the field of copyright. However, due to the invisibility, automatic protection and other characteristics of copyright, as well as the widespread popularity of the Internet, the phenomenon of parties using pictures, music and other works to implement malicious litigation is becoming rampant. Rectifying malicious litigation is of great significance for building a trustworthy society and a rule of law country. In the future, we should take the special work of punishing malicious lawsuits in the field of copyright in accordance with the law as the starting point, strengthen social supervision and governance, and promote the formation of a good legal atmosphere for obtaining and exercising copyright with integrity and fair competition.

Actively participate in the reform of the global governance system for copyright

The key to the global governance of copyright among countries around the world lies in the competition for the right to formulate rules. The existing global governance system for copyright mainly relies on the international rule system led by developed countries in Europe and America, therefore, their interests are inevitably reflected in the power structure and distribution of benefits. With the continuous improvement of China's overall strength, participating in global governance through passive acceptance of international rules is clearly no longer in line with China's international status.

China firmly upholds multilateralism and supports the World Intellectual Property Organization in playing the main platform role in formulating international copyright rules. On the premise of maintaining the main channel of the multilateral system, China can use systems such as the "the Belt and Road" International Cooperation Summit Forum to carry out dialogue and promote countries along the Belt and Road to support and understand China's position on the reform of the global copyright governance system. At the same time, taking advantage of the negotiation opportunities of bilateral and regional free trade agreements, China's relevant positions will be translated into treaty texts. In the field of global governance of copyright, China should attach importance to both international "hard law" and international "soft law", including recommendations and resolutions made by intergovernmental international organizations, political declarations, codes of conduct in the form of technical regulations, model laws, etc. When there are significant differences in interests among all parties.