16 ASIAN LEGAL BUSINESS – APRIL 2024 WWW.LEGALBUSINESSONLINE.COM AI When AI chatbot ChatGPT hit the market in late 2022, it unleashed an AI frenzy that’s still engulfing the world. The key technology underpinning the tool, generative AI (Gen AI), is driven by sophisticated systems that produce content from text to images. Users are astounded by its uncanny knack for not only crafting coherent paragraphs in response to queries but also generating digital artwork and videos based on textual prompts. It’s as if, upon presenting it with a puzzle, all one needs to do is sit back and watch the magic unfold. As Gen AI ushered in a new era of creativity, questions also began to rise over the protection of intellectual property rights, with the new technology blurring the line between human authorship and algorithmic assistance. In jurisdictions such as the United States, the debate is still ongoing over whether there is a copyright question in Gen AI output after all. Nicholas Lauw, a partner at RPC Premier Law in Singapore, points out that the argument stems from the creative agency of Gen AI tools. “While some have argued that the creation of ‘prompts’, which are the inputs a human enters into an AI tool to generate a specific output, involve creativity and effort that warrant copyright protection over the output, some courts in the U.S. have rejected this argument,” notes Lauw. The case Lauw refers to is the “Zarya of the Dawn” case, where the remains as to when copyright can subsist in AI-created works on the basis that the work was created by a human using computer software,” says Lauw, adding that Gen AI, albeit a software, is by nature drastically different from a passive tool such as a keyboard. China, on the other hand, appeared to have gone in a different direction. In November, a Beijing court ruled against a party using an AI-generated picture in its content, declaring that the picture was a copyrightable work due to the “intellectual inputs” and “personal expressions” provided by the author by entering prompts and exercising personal aesthetic judgements. This is the first ruling handed down by a Chinese court concerning the copyrightability of AI output. But He Wei, a partner at IP-specialised Wanhuida Law Firm in Beijing, says grey areas remain under the existing legal framework, where the concept of “AI-related U.S. Copyright Office denied copyright registration to graphic images that were generated with the help of an AI tool. The Office explained that “users do not exercise ultimate creative control over how (the AI tool) interprets prompts and generates material.” Pin-Ping Oh, a partner at Bird & Bird in Singapore, says that it remains unclear whether something without human creative input could be “original.” “The key issue to granting copyright protection for AI-generated works is the lack of human authorship that has traditionally been required for a work to be protected,” she notes. Lauw acknowledges the judicial ambiguity in Singapore surrounding whether copyright subsists in Gen AI output. “Although the apex court in Singapore has previously held that copyright protection will only arise where a work is created by human author(s), uncertainty DIFFERENT STROKES As the transformative era of Gen AI continues to redefine creativity, it is also igniting debates on copyright laws and ethical boundaries. And as legal battles over intellectual property intensify, courts in different jurisdictions are taking unique approaches to the larger questions surrounding ownership of art and content created by this new technology. “While some have argued that the creation of ‘prompts’, which are the inputs a human enters into an AI tool to generate a specific output, involve creativity and effort that warrant copyright protection over the output, some courts in the U.S. have rejected this argument.” — Nicholas Lauw, RPC Premier Law BY SARAH WONG WITH ADDITIONAL REPORTING BY HU YANGXIAOXIAO AND NIMITT DIXIT
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