CHINA Trends and Developments Contributed by: Qiang Ma, Yi Xu and Lei Wu, Jingtian & Gongcheng
reproducing the original expression, it qualifies as “transformative use”. • Nature of the used work – Original works with high originality possess significant “expressiveness”. This element is often weighted lower in the overall fair use assessment. • Quantity and quality of use – If data copying during training is only “memorised” in model parameters and does not disseminate the original content, and if the amount used is reasonable and necessary, it constitutes fair use. • Impact on market value – If the training process does not substantially replace the original work or harm its market value, and does not conflict with the normal use of the work or harm the copyright owner’s interests, it is considered fair use. Summary The rationale for endorsing the establishment of a “fair use” defence or applying the “safe harbour rule” in determining the liability of GenAI service providers often hinges on several key considerations. • Industrial development – It is important to strike a balance between fostering the growth of the artifi - cial intelligence industry and upholding copyright protection. Adopting a more tolerant and cautious standard for assessing infringement related to gen - erative AI services is essential.
• Public interest in encouraging creation and cultural prosperity – GenAI platforms play a significant role in stimulating user-generated content, creating favourable conditions for creativity and promoting cultural development, all of which align with the public interest. • Principle of technological neutrality – The technol - ogy behind GenAI is inherently neutral, meaning it should not be unfairly targeted or restricted. • Competition standards – In a competitive market, copyright owners should not have the ability to obstruct free and fair competition among service providers. Balancing these factors with copyright protection is crucial. Thus, it is important to adopt a careful and considerate judicial approach towards GenAI service providers.
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