Hong Kong (CMS HS)

Executive summary  The rapid growth of generative AI including popular models such as ChatGPT, Microsoft’s Copilot and Google’s Gemini (formerly Bard) have brought to fore many new legal issues relating to ownership, subsistence and infringement of copyright law. At the heart of the discourse is the reinterpretation of copyright principles in the age of AI-generated content. Long established principles about subsistence, authorship and ownership of content are being re-examined in the wake of the explosion of AI generated work being created and the demand from businesses who want to secure the profitability gains from using generative AI without losing control of any IP rights associated with content which may be in whole or in part created using AI tools. It is unsurprising that the US Courts have led the way in AI & copyright litigation to date given most of the leading AI technology providers are based there, but we are starting to see similar claims being issued before UK and European Courts. Some of the questions UK and European Courts are already grappling with include:Is there a valid infringement claim where the entirety of a copyright work is copied for the purpose of training a large language model but the “allegedly infringing” output seen by consumers only contains “in­fin­ites­im­ally small” reproductions of the original work, which is the case in UK case Getty Images (US) Inc & Ors v Stability AI Ltd?What about if the defendant argues the dataset used for training said machine is using only transient copies of the original work , which is the case in German case Robert Kneschke & LAION e.V.?And how do we define the authorship of work created by AI, particularly where the law may define the author as a “natural person” which is/has been considered in the Czech Republic between S. Š. (individual) v TAUBEL LEGAL, advokátní kancelář s.r.o. Case No. 13/2023? These are some of the issues emerging from the adoption and use of generative AI, an area that is likely to be increasingly complicated by newer and more advanced technologies, and the implementation of the EU AI Act. Working with our CMS colleagues across UK and Europe we have built a copyright + AI case tracker providing accessible, easily digestible case summaries, updated regularly, covering the most topical case law in the area of AI and copyright. Each case summary in this copyright + AI tracker provides details of the relevant litigation, including summaries of each party’s arguments and the final judgment, in order to develop an understanding of this new developing landscape of case law. There are multiple ongoing copyright claims being litigated in the US including between NBC Universal and Anthropic, the New York Times and OpenAI, the Dow Jones and Perplexity, and Getty and Stability AI. All of these cases concern similar issues, namely the lawfulness of training AI models on datasets containing third party copyright works, as well as liability for the outputs produced. If you would like to know more about these cases, or how these issues might impact on your business, please get in touch. We have a network of ‘best friend’ firms across the US, who can assist further, if required. If you become aware of a case which we have not yet summarised, please do let us know by emailing copy­rightAItrack­er@cms-cmno. com