In recent years, artificial intelligence has rapidly given birth to various applications, especially automated drawing software, which has attracted much attention. The recent ChatGPT, which is very popular, not only can chat but also can quickly write articles and organize data, which has driven a new wave of AI craze. However, are images or articles generated by AI protected under copyright law in Taiwan?
The criteria for determining whether a work is protected by copyright
First of all, Article 1 of the Taiwan Copyright Act clearly states that the purpose of copyright protection is "to protect the copyright interests of creators. In other words, the object of copyright protection must be "the result of human intellectual creation" because copyright protects the cultural essence of human intelligence and is not applicable to works produced by non-human entities, such as articles generated by software translation. Article 33 of the Taiwan Copyright Act stipulates that for works created by legal persons, the copyright shall last for 50 years after the works are publicly released. For works that have not been publicly released within 50 years from the date of completion, the copyright shall last for 50 years from the date of completion.Therefore, in order for a work to be protected by copyright, it must be created by a natural person or legal person as a subject of rights and obligations.
Does the artwork created using Midjourney software qualify for copyright protection?
Whether artworks created by AI drawing tools like Midjourney infringe on copyright is a complicated issue. There have been debates in Taiwan over AI-generated art, and recently, a work called "Sakura Cat Girl" uploaded by Wu Dan-ru on her Facebook page sparked discussions.
Currently, AI artificial intelligence is divided into two categories internationall:
1.Weak AI : AI creation is primarily controlled by humans, and the works produced are called AI-generated.
2.Strong AI : AI creation is mainly controlled by AI, and humans do not participate in the creation process. The works are called AI-originated.
In Taiwan, AI drawing is not currently recognized as protected by copyright law. According to a letter issued by the Intellectual Property Office with reference number 10700038540, "the copyright of the music generated by an automatic music system belongs to the following section: If the music created is only the result of automatic calculation by the machine or system, and there is no human input of originality or creativity, it may not be considered as a work protected by copyright law." In simple terms, this means that artworks created solely through system or machine calculation, such as automatic music or automatic drawing, do not involve human creative input and do not possess originality, and are therefore not protected by copyright law.
An AI copyright case in the United States:
- In February 2022, the United States Copyright Office rejected a copyright registration for the artwork "A Recent Entrance to Paradise," which was generated by AI algorithms.
- In September 2022, the Copyright Office approved a copyright registration for the comic artwork "Zarya of the Dawn," which was created in collaboration with Midjourney. However, in November of the same year, the Copyright Office re-examined the registration for "Zarya of the Dawn" and requested details of the creative process to demonstrate substantial human involvement in the work.
How should we determine if AI-generated works infringe copyright? And how can we protect our own works?
AI systems require massive amounts of data for learning, so it is difficult to prove infringement of AI-generated works. The current copyright law is based on the principle of protection for creativity, and in case of infringement, the copyright owner has the burden of proof and must demonstrate in court:
1.Proof of the author's identity.
Retain the documents related to the creative process as evidence that the creator had the ability, time, and manpower to complete the work.
2.Proving the time of completion of the work.
According to the Supreme Court's ruling, "the two elements of determining plagiarism are contact and substantial similarity". Therefore, if evidence can be presented to prove that the work was completed before the other party, it can be argued that the plagiarism was not the result of contact. (Supreme Court Judgment No. 3063, 1992)
If there has been no contact between the parties in the past, it may be difficult to prove. In practice, the quantity, distribution channels, time of publication, and reputation of the work can be used to infer the likelihood of high contact.
3.Proving independent creation and not copying.
The Copyright Act emphasizes independent creation by the author. As long as it can be proven that the work was independently created by the author, it is still protected under the Copyright Act. If the accused party is unable to prove that the work was "independently created," it may be presumed that there is a possibility of "contact." However, when an infringement incident occurs, the above evidence may be lost over time, so registering the copyright can also be a way to protect one's copyright.
In other words, whether it is a design company or a self-media platform, it is essential to keep records of the creative process, including drafts, sketches, screenshots with dates, notes, etc., and even register the copyright upon completion of the work. These can all become strong evidence in the event of a dispute.
With the increasing development of AI applications, intellectual property-related legal issues remain a crucial issue for business operations. Therefore, we welcome consultations with Jin Rui Trademark Office, where we will assist companies in making the correct decisions regarding intellectual property issues to protect their interests. #For trademark matters, consult the trademark experts.
