39 ASIAN LEGAL BUSINESS – APRIL 2024 WWW.LEGALBUSINESSONLINE.COM CHINA where AI is advancing rapidly, overly stringent regulations could hinder industry growth. Conversely, the EU, lacking dominant AI firms, can afford a more robust regulatory stance.” Based on this, He predicts that since China hopes to encourage the development of the AI industry, future regulation “may adopt a relatively relaxed approach.” David Liu, partner of Chang Tsi & Partners, shares regulatory developments in the United Kingdom and Singapore and the experience that China can draw from. “The UK government is exploring appropriate forms of AI regulation, including the establishment of an AI Council to formulate a national AI strategy. The UK approach may inspire China as to how to coordinate and promote the development and regulation of AI at the national level.” At the same time, “Singapore has launched an AI governance framework that provides guiding principles and practices on the responsible use of AI. This framework emphasizes data protection, transparency and explainability of AI. China may refer to Singapore’s experience to develop AI governance principles applicable to different industries.” Yu Yuwu, senior partner of Wang Jing & GH Law Firm, emphasizes that in judicial practice, countries are also paying more attention to the handling of AI cases, which is worth following. “For example, on December 20, 2023, the UK Supreme Court ruled in Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023 UKSC 49] that AI cannot be recognized as the inventor in a patent application; recently, OpenAI and Microsoft have been sued by the New York Times and well-known writers such as Nicholas A. Basbanes for infringing upon their IP by using their copyrighted works to train AI models without authorization. China should pay attention to and learn from these developments.” CLIENT INQUIRIES Against this backdrop, lawyers are already seeing incoming client inquiries about IP issues related to Gen AI. Yu notes that while no specific cases have yet arisen, “there have been client consultations and discussions on issues such as whether AI generated content qualifies as a protectable work, the patentability of AI technological inventions, and the copyright ownership of AI-generated products. The primary concerns of clients revolve around the ownership and protection strategies for AI-generated products, the foundation of rights associated with AI performances, how to safeguard these rights, and the risks of infringing on others’ AI-generated works.” Liu, using Chang Tsi & Partners as a reference, offers a unique insight, stating, “There has been a significant rise in AI-related patent applications in recent years. Between 2020 and 2023, the annual growth rate of AI field patent applications we’ve handled has averaged over 12 percent.” Drawing from past experience, Liu notes, “Technology companies in China, the US, and Japan place a high priority on patent protection and application within the AI sector. For instance, Internet giants like Alibaba Group, Baidu, ByteDance, Apple, Google, and Microsoft register a substantial number of AI patents annually. Additionally, China’s emerging tech companies, particularly startups such as Canaan, Human Horizons, and Shanghai Quicktron, show a keen interest in AI. Some of these tech startups even regard AI technology as their core technological asset.” Liu highlights that client inquiries in the realm of AI patent development and application primarily revolve around exploring AI patent technology, its innovative aspects, the market application prospects of AI patents, infringement risks associated with AI technology, and the patentability of AI advancements. “Given the swift evolution of AI technology, tech companies have stringent criteria or elevated expectations regarding the patent application and commercialization timelines in the AI domain. Thus, the urgency of patent-related activities in AI technology is a crucial concern for tech firms,” Liu remarks. He Wei has noticed a similar demand and points out that trademark protection for LLMs is becoming a prominent issue, often entangled with challenges like unclear categorizations and multiple cross-category similarities. “Especially in China, cross-category protection is currently only feasible through well-known trademarks. However, some LLMs, being relatively new at just around a year and a half old, do not meet the well-known trademark criteria of being registered for three years or used for five, posing a significant challenge.” Looking ahead, He anticipates that Gen AI might introduce fundamental challenges to the entire IP protection framework, particularly in the areas of design and utility models. The widespread adoption of Gen AI in industrial design could necessitate a redefinition of “novelty” in patent applications. Moreover, “the recent introduction of Sora has sparked discussions among video producers about the potential for easy plagiarism of creativity if videos can be generated from simple prompts. Currently, the core principle of copyright protection is that it ‘does not protect ideas, only their expression’. Moving forward, if ‘creativity becomes king’, this tenet could be upended, potentially requiring the development of novel protection strategies, like establishing an exclusive period for creative ideas to attract online traffic,” He suggests. “The EU has adopted a risk-based AI governance framework and tiered regulatory approach, while the US has opted for soft regulation and governancedriven development. This is worthy of reference for China’s AI regulation with achieving balance between development and security.” — Long Chuanhong, CCPIT Patent & Trademark Law Office
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