Abstract
‘Machine creativity’ in this thesis specifically refers to AI-generated literary and artistic contents and AI-generated inventions. These contents and inventions are essentially intangible properties associated with substantial economic benefits, but may not be qualified for legal protections under traditional copyright and patent law regimes due to the changing nature of human contributions involved in the corresponding creating processes. How to effectively address this issue, balancing the interests of relevant stakeholders and promoting social development, has become an imperative matter that countries around the world need to seriously consider as they enter the era of AI. China is no exception.The essence of the issue mentioned above is how existing laws face the disruptive impact of new technologies. As for the situation in China, it appears that the Current Regulatory Mode (defined in the main text) cannot function well to protect AI-generated outputs from the IP law perspective due to the authorship and inventorship challenges. This thesis aims to propose solutions to address the problem of an inadequate regulatory mode. To carry out this research project, this thesis designs a Three-step Research Approach (defined in the main text) to propose solutions in three tiers, namely solutions by existing law, solutions within the law, and solutions beyond the law. The objective is to establish a comprehensive regulatory framework for China to regulate machine creativity. Furthermore, regarding the third tier, i.e., solutions beyond the law, this thesis applies Prof. Lawrence Lessig’s four modalities of regulation in the New Chicago School approach to explore a government-led regulatory mechanism. To implement the Three-step Research Approach, this thesis primarily adopts the doctrinal legal research and comparative law. Among these, the doctrinal legal research serves as the main research methodology, while the comparative law is an important tool that assists the doctrinal legal research in the legal research of this thesis.
The Three-step Research Approach is formulated as follows: first, to examine the extent to which the current Chinese copyright law and patent law can accommodate creations generated by AI machines; second, to explore suitable legal solutions to protect these AI-generated outputs within the IP law regime; and third, to explore effective regulatory measures to address the risk that humans may free-ride on AI-generated outputs in content or invention creation for the purpose of ensuring the smooth implementation of the proposed IP law solutions. The five chapters comprising this thesis are designed basically following the planned three research steps.
This thesis takes the view that in the era of AI, the establishment of a new market order in the creative industries should prioritize the promotion of human creativity, with effective measures implemented to harness the benefits brought by machine creativity for human advancement, while also proactively managing the potential risks that may arise throughout this process. With this regulatory idea in mind, this thesis designs a moderate reform proposal, with the aim of maintaining a solid legal foundation for the preservation and advancement of human creativity, while effectively addressing the challenges posed by generative AI technologies. Specifically, the moderate reform proposal suggests establishing a comprehensive regulatory framework to address issues arising from AI-generated outputs in the copyright and patent fields, which comprises two main parts: one is the correspondingly revised copyright and patent law regimes, and the other is a government-led regulatory mechanism established based on a special regulation for regulating the use of AI-generated outputs, titled ‘Provisions on the Administration of the Use of AI-generated Creations’ (PAUC). The latter is essential to ensure the smooth implementation of the former due to the indistinguishability between AI-generated outputs and human creations.
The proposed regulatory framework consists of both solutions within the law and those beyond the law, offering systematic approaches for the two forms of AI-generated outputs, namely literary and artistic contents as well as inventions, within the context of China. This is what this thesis contributes to the current discourse on the effective regulation of AI-generated outputs.
| Date of Award | 6 Nov 2024 |
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| Original language | English |
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| Supervisor | Tianxiang HE (Supervisor) |