The accelerating impact of digital innovation has highlighted several challenges for existing legal systems, especially in contexts where new technologies, such as artificial intelligence, are gaining ground. One of the many critical legal issues related to the advent of AI is certainly related to the protection of images, works and creations generated by such systems. This issue has, in fact, generated extensive discussions in many countries, highlighting the need to adapt existing laws to the new problems posed by technological innovation.

In this regard, notable is the recent ruling of the Court of the District of Columbia in the United States, dated August 18th, 2023, which – confirming the decision made by the US Copyright Review Board in February 2022 – denied that works created with artificial intelligence systems can be protected by copyright. Specifically,
the Court ruled that intellectual works must, at least partly, come from human intellect to be eligible for protection; thus, denying that there had been any concrete intellectual contribution by the creator in this specific case.

In a diametrically opposed manner, the Court of Beijing, in a landmark ruling issued last November 2023, recognized copyright protection to an image generated with the aid of artificial intelligence, assigning authorship of the work to its human author.

Specifically, the plaintiff, after generating an image through the artificial intelligence platform Stable Diffusion, proceeded to publish it on a Chinese social network. Subsequently, that image was republished by a second person on a different platform, without the consent of its author. Following this, the creator of the image took the case to the Beijing Court for protection, believing that his copyright had been infringed.

To resolve the issue, the Beijing Court addressed three different questions; namely, (i) whether the image could be considered a work of art, (ii) whether the plaintiff could be considered the author of the work and, finally, (iii) whether through the re-sharing of the image, copyright was actually infringed.

As to the first question, it is worth mentioning that under Chinese law, for a work to be considered worthy of copyright protection, it must meet four requirements, namely (i) belong to the field of literature, art or science, (ii) have an original character, (iii) have a certain form of expression and, finally, (iv) constitute an intellectual creation, meaning the fruit of an activity performed by the human intellect.

First, the Court clarified that the image in question, as it does not differ from a photograph, not only possesses an expressive form, but can also be considered as belonging to the field of art.

Having clarified this, the Court moved on to the analysis of the concept of intellectual creation, focusing on the concrete contribution made by the applicant in the creation of the image. In analyzing this issue, the Court pointed out that, to create the image, the plaintiff had to choose from a series of criteria and suggestions provided by the platform, in addition to having had to set numerous and specific parameters in order to reach the final result, according to what was his idea. Based on these considerations, the Court concluded that the creation of the image was made possible by the intellectual efforts put in place by the applicant, who had to provide the AI platform with all the specific inputs necessary to achieve the desired result.

On the same grounds, the Court also recognized the original character of the work, adding that its author – in addition to entering specific parameters and criteria – subsequently worked on the refinement of the final result. The Court, therefore, concluded its analysis by asserting that the final result obtained through the use of the Stable Diffusion platform goes far beyond mere mechanical controls devoid of originality and human input.

Based on the foregoing, the Beijing Court recognized the image in question as a protected work under Chinese copyright law.

Regarding the second point, namely whether the plaintiff can be considered the author of the work, the Court rejected the idea that works generated with the help of AI platforms can be attributed to the developers of the software. This decision is based on the concept of intellectual contribution in the creative process; according to the Court, it is the user who significantly contributes to the creation of the work, through the use and selection of the software. Therefore, the Court held that copyright should be granted to the person who has invested time, creativity and energy in the process of realizing the work, rather than to the software developer. Therefore, the Court recognized the user who used the software to create the image as the author of the work.

Following this line of thought, the Court also resolved the last question, ruling that the republication of the image itself without authorization constituted a clear infringement of the plaintiff’s copyright.

This is undoubtedly a landmark ruling, taking a clear position on the thorny debate on the relationship between artificial intelligence and copyright. Unsurprisingly, this ruling resonated beyond China’s borders. As of today, the debate on the topic is far from closed and it will be interesting to see what the possible future developments will be, while waiting for the first normative regulation of the matter.