Introduction

On 8 July 2024, the Government launched a two-month public consultation on the enhancement of the Copyright Ordinance (Cap. 528) (the “Ordinance”) in relation to the protection for the development of artificial intelligence (“AI”).

The consultation concerns the following areas:

1.       Copyright protection of AI-generated works;

2.       Copyright infringement liability for AI-generated works;

3.       Possible introduction of specific copyright exception; and

4.       Other issues relating to generative AI.

Copyright protection of AI-generated works

Under the existing Ordinance, copyright protection is provided for original literary, dramatic, musical and artistic works (“LDMA Works”) generated by computer i.e. where there is no human author. The author of such LDMA Works is taken to be the person who undertook the arrangements necessary for the creation of such works. The duration of such LDMA works expire at the end of the period of 50 years from which such works were made.

For non-LDMA Works including sound recordings, films, broadcasts, cable programmes and typographical arrangement of published editions, copyright subsists as long as they are not copies of previous works and there is no originality requirement. In the existing regime, there are no specific provisions governing computer-generated non-LDMA works. In this regard, non-LDMA works is protected under the current Ordinance regardless of whether they are created by humans or computers.

Since the current Ordinance already provides protection for AI-generated LDMA and non-LDMA works, it is considered that the current provisions as they now stand should be maintained. The Government does not consider it justifiable to propose any substantive legislative amendments concerning AI-generated works at this stage.

Copyright infringement liability for AI-generated works

The existing Ordinance gives exclusive rights to a copyright owner to do certain acts restricted by copyright in a copyright work, including but not limited to copying the work, making an adaptation of the work, and communicating the work to the public (for example by making the work available to the public through the Internet).

Copyright in a work is infringed when a person, without the licence of the copyright owner, does or authorises another person to do any of the acts restricted by copyright, unless the act is permitted under any statutory copyright exception. Copyright infringement gives rise to civil liability and, in some cases, criminal liability.

If a piece of AI-generated work involves any act restricted by copyright (such as utilizing AI technology to copy or make an adaptation to a copyright work), it may constitute copyright infringement. In such circumstances, depending on the facts, different parties such as the AI model's developer or programmer, the operator of the AI system or the end user of the AI system may be held liable for such copyright infringement.

The existing Ordinance also offers protection of moral rights specific to authors of LDMA works and directors of films, including the right to be identified as authors or directors and the right to object to derogatory treatment of their works. AI-generated works involving LDMA works and films are also covered under such protection.

In view of the fact-sensitive nature of copyright infringement claims and protection of moral rights of AI-generated works under the current Ordinance, the Government views that there are no cogent justifications to introduce legislative amendments in relation to copyright infringement arising from AI-generated works.

Possible introduction of specific copyright exception

The process of developing, training or enhancing an AI model often involves using copyright works. This may constitute copyright infringement if a license has not been obtained from the copyright owner, or if the act does not fall within any copyright exception under the Ordinance.

Under the existing Ordinance, there is no copyright exception for the purposes of computational data analysis and processing. As such, the developing and training of AI model will likely constitute copyright infringement if it involves an act restricted by copyright.

In considering whether copyright exception shall be introduced for conventional text and data mining, computational data analysis and processing for enhancing the performance of a computer program (such as development and training of an AI model) (“TDM Activities”), the Government has identified the pros of such introduction, including the promotion of AI development and the facilitation of the research community (which often involves data mining). Although introduction of such exception may also bring adverse impact to copyright owners (such as less entitlement to remuneration as return of use of their works), the Government considered that most of the drawbacks can be balanced out by providing appropriate safeguards to copyright owners. As such, the Government views that it is justifiable to introduce copyright exception for TDM Activities to the Ordinance.

The Government suggest and seek the public’s opinion on the following in relation to the introduction of copyright exception for TDM Activities:

1.       The exception to be introduced should not be restricted to non-commercial research and study, given that the development of AI models for commercial uses, business analytics and R&D projects may include commercial endeavours and may be privately funded.

 

2.       A viable option for safeguards is to impose condition on the proposed exception, such as requiring lawful access to copyright works, rendering TDM Activities unauthorised if licensing schemes are available or copyright owners have expressly reserved their rights (i.e. to opt out), or imposing restrictions on further communication, distribution or dealing of the copy made under the proposed exception for TDM Activities.

Other issues relating to generative AI

Deepfakes

Deepfake involves the utilisation of AI or deep learning algorithms to create realistic videos, images or audios which never happen. An example would be superimposing human features on another person’s body or manipulating sounds to generate a realistic human experience.

If deepfake content involves unauthorised use of a copyright work or trade mark, it may constitute copyright or trade mark infringement. The misuse of a person’s indicia of identity in deepfakes may also constitute breach of personal data protection law or defamation.

While there is no freestanding right of personality or publicity in Hong Kong, a person may seek remedies from other legal recourses such as intellectual property laws.

Transparency of AI systems

In the context of AI technology, the principle of transparency requires the adoption of clear and honest communication channel between the AI developer, the end-users and the regulators.

The Office of the Government Chief Information Officer in Hong Kong has formulated the Ethical Artificial Intelligence Framework which provide a set of guidance to identify and manage risks and ethical issues in relation to AI-related technologies, including the issue of transparency. For more details of and our discussion on the Ethical Artificial Intelligence Framework, please click here.

Conclusion

As AI technology continues to evolve, laws and regulations concerning AI technology have to be constantly reviewed to keep up with the development. As set out in the consultation paper, the Government will continue to monitor the development as well as relevant policies and regulations formulated by other jurisdictions and consider whether relevant amendments to the local regime should be introduced.

 

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2024