| By analogizing photographic works, Chinese courts have established a preliminary judicial copyright protection framework for Generative AI (GenAI) outputs in practice. This framework, however, risks triggering a triple paradigm shift, that is, the criteria for both originality determination and substantial similarity comparison shift from final expressions to conceptualization, while liability for direct copyright infringement transfers from executors to conceptualizers. Yet, GenAI fundamentally differs from cameras in executing human conceptions, i.e., it performs “autonomous” transformative execution rather than mechanical fixation. Consequently, the traditional dual requirements of “visualizable conception + mechanical fixation” under the photographic conception-determination theory prove inadequate to address the triple shift. To solve the problem, this study proposes a tripartite revision to the conception-determination theory. Firstly, to retain the “visualizable conception” to align with traditional doctrines. Secondly, to introduce the concept of “controlled fixation” to mandate authors’ reasonable controlling efforts in ensuring their original conceptions serve as the effective cause of GenAI-generated expressions, thereby preserving the idea-expression dichotomy. And lastly, to require “record of authorship” as necessary evidence for proving authorship, which clarifies rights boundaries and prevents misuse of GenAI. |
京公网安备11010102006664号 京ICP备2023015853号