Creation Is Not Like a Box of Chocolates: Why Is the First Judgment Recognizing Copyrightability of AI-Generated Content Wrong?

Abstract

Abstract The judgment of the Beijing Internet Court recognizing copyrightability of AI-generated images is flawed for three reasons. First, the judgment treats generative AI as a tool of creation akin to a brush, camera or Photoshop. But generative AI is not a passive means for the author to implement the act of creation that directly produce works; instead, it is actively involved in the decision-making process of the substance of the resulting content. Second, the judgment attaches much importance to the creative nature of the text prompts and other inputs of the user of generative AI, while it fails to make the analysis within the framework of the idea/expression dichotomy. Different generative AI systems, and even the same generative AI, may generate completely different images based on exactly the same ‘user’s inputs’. This fact shows that ‘user’s inputs’ are an unprotectable idea in relation to the outcome of the AI production, because a single creative and original idea may lead to a large number of expressions. Third, while acknowledging that the relationship between generative AI and its users is akin to the relationship between the commissioned party and the commissioner during the creation of a painting, the judgment wrongly attributes user’s authorship of AI-generated content to AI’s lack of free will and legal personality.