Tiered copyrightability for generative artificial intelligence: An empirical analysis of China and the United States judicial practices

Abstract

The rapid advancement of generative artificial intelligence (AI) poses significant challenges to traditional copyright frameworks, intensifying debates over the copyrightability of AI‐generated outputs. By comparing judicial practices in China and the United States, it has been observed that the United States maintains a conservative stance of adhering to substantive control, while China demonstrates an inclusive approach through the criterion of creative contribution. Building upon this, this article transcends the traditional binary judgment model and constructs a tiered copyright determination model. Based on the level of human control and contribution in the AI generation process, it introduces dimensions such as technological controllability and density of human intent, classifying generative AI into three tiers: strong protection, weak protection, and non‐protection. Regarding the copyrightability of content generated by generative AI, this article argues that the issue should be addressed within the framework of copyright law itself. When human participation is involved and the substantial contribution of the direct user is reflected in the AI‐generated content, meeting the requirements for copyrightable works under copyright law, corresponding protective measures should be granted.