人工智能生成内容的作品属性认定——以比较法为视角

Attribute Recognition of Works Generated by Artificial Intelligence: From the Perspective of Comparative Law

人工智能生成内容的作品属性认定是其获得著作权法保护的前提,目前司法实践中的难点主要在于对独创性的判断和对创作主体的要求。在世界范围内,以德日为代表的大陆法系国家和以英美为代表的普通法系国家的认定标准虽然存在分歧,但随着思想与表达二分法原则的确定,也开始逐渐趋于统一。鉴于此,我国对独创性的判断也应采用客观化标准,思想、情感等不应成为考量因素;而对自然人身份的要求归根到底是解决权利归属问题,不能成为构成要件,如此可将人工智能生成内容认定为作品。

The identification of the attributes of the works generated by AI is the premise for the protection of copyright law. At present the difficulties in judicial practice mainly lie in the judgment of originality and the requirements of the creative subject. On the worldwide scale, although there are differences between the relevant views of the civil law countries represented by Germany and Japan and those of common law countries represented by Britain and the United States, the two views are gradually becoming unified with the determination of the principle of dichotomy of thought and expression. Hence China is supposed to adopt objective criteria for the judgment of originality, and thoughts, emotions and other factors should not be taken into consideration. And the requirements for the identity of natural persons ultimately aim to solve the problem of right ownership, and cannot be a constituent element. Thus the content of AI generation can be identified as works.