How Human is Human Enough: The Implications of Chinese Policy on AI Generated Copyright Protection

Payton DeWitt March, 2026

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Intellectual Property protection on the international level is both a creature of international pressures and domestic law.[1] Global integration, the rise of multinational corporations, and expanding competence in the field of Artificial Intelligence has complicated the already varied framework for IP protection across borders.[2] The Berne Convention for the Protection of Literary and Artistic Works provides the current process for companies, artists, and individuals to obtain international copyright protection.[3] Though not explicit, the Berne Convention has long been understood to include a human authorship requirement.[4] This absence of explicit textual guidance is the source of the problem: how much human involvement is enough to establish human authorship?

The Convention protects an author’s moral rights, the right of paternity and integrity to his or her work, and is necessarily motivated by some understanding of human attachment to their art.[5] To consider eliminating the complete human authorship requirement would detract from the understanding of the Berne Convention as a way to protect the art of the author for the sake of the art itself.[6] Although Copyright law indispensably contains an economic aspect, and certainly a great motivator for the adoption of the Berne Convention was to protect against international piracy,[7] the inclusion of moral rights necessarily also includes noneconomic motivations for adopting and amending the Berne Convention.[8] Traditional understanding of moral rights references a sort of “bond” that an author has with his or her work, due to the process and experience of its creation.[9] The inclusion of moral rights, as well as the traditional interpretation of the Berne Convention, has cemented the human authorship requirement into the framework of international copyright protection.

The definition of authorship central to this framework varies greatly amongst Berne Convention signatories. The United States has a very strict human authorship requirement, no artificially generated work may receive copyright protection.[10] Similarly, the European Union takes an “anthropomorphic centric” approach to copyright protection, understood to require sole human participation to warrant copyright protection.[11] In contrast, the United Kingdom’s Copyright, Designs and Patents Act of 1988 provides for flexibility regarding the eligibility of copyright protection for AI-assisted works, allowing for copyright protection so long as a human exercised creative control over the AI during the process of creation.[12] Even more expansive has been China, with its courts repeatedly recognizing that AI-generated works were entitled to copyright protection for a variety of reasons.[13]

China does not go so far as to completely eliminate the human authorship requirement, instead recent court decisions reflect the approach that sufficient involvement in generating prompts and guidance by a human author is sufficient to establish human authorship.[14] The choices that a human author makes in selection and arrangement is enough for copyright protection, even if the ultimate work is produced with the assistance of Artificial Intelligence.[15] This appears to be consistent with an understanding of United States copyright law, in that the selection and arrangement of noncopyrightable subject matter can create a work that as a whole is copyrightable.[16] However, this understanding has not gone beyond the arrangement of already generated works. Selection and arrangement of prompts is not equivalent to the selection and arrangement of existing creations to create a new work.[17] The US Copyright Office has taken the position that generating prompts is not sufficient to create a copyrighted work, but the arrangement of AI generated works in connection with other text or images is sufficient to establish human authorship.[18] Thus works generated by AI with sufficient guidance of a human author through prompts would likely receive copyright protection in China, but would be unlikely to establish the human author requirement per United States copyright law.

The Chinese courts’ attitude toward AI-Generated works can be attributed at least in part to a desire to become the global leader in Artificial Intelligence.[19] The Berne Convention does not provide actual validity of copyright of any given work, instead it provides the presumption of validity.[20] The presumption of validity operates to require that all copyrighted works falling within the definition of a protected work under the Berne Convention must be protected in signatory states.[21] Thus, even if an AI-Generated work is copyrightable under Chinese law, it is unclear whether that copyright would be enforceable in foreign courts, such as the United States or United Kingdom.[22] Other signatory states could operate as if AI Generated works do not fall under the Berne Convention definition and are thus not entitled to that presumption of validity. However, a more permissive structure for copyright protection of AI-Generated works in China could draw AI corporations or designers to the Chinese market, desiring more stringent protections. The Berne Convention requires that foreign authors receive the same level of protection as domestic authors in signatory countries; domestic law will still govern the extent of protection that copyright receives in each member country.[23] If the Berne Convention were interpreted to include AI-Generated works with some degree of human creativity, it could provide additional protections in countries with limited guidance or binding statutory or case law directly relevant to the question of human authorship.

The World Intellectual Property Organization (WIPO) has yet to weigh in on the appropriate interpretation of the Berne Convention, and whether AI-Generated works with an element of human creation may be found to satisfy that requirement. Instead, WIPO suggests navigating possible infringement issues as to AI-Generated works through contractual terms, and additionally evaluating ways to add human creativity to the development process.[24] The Berne Convention has not been updated since 1979, and the drafters of that update surely could not have anticipated the creation of artistic works with so little human involvement. WIPO plays an important role in international IP rights for this reason, its guidance provides a soft tool for Berne Convention signatories to understand rights and responsibilities without an explicit textual guide. Notwithstanding its place on the international stage, is it the role of WIPO to create a standardized framework with flexibility for changing circumstances based on traditional understandings of international copyright law, or is it the role of WIPO to promote learning and creative development?[25]

Absent an amendment to the Berne Convention, WIPO has taken an active role in advising international authors and companies on potential consequences of creating using AI.[26] Especially as AI becomes more prominent on the world stage, and fractured understandings of copyright protection permeate Berne Convention signatories, WIPO’s guidance has become particularly important. An ad hoc approach to how copyright protection is viewed internationally will lead to confusion, difficulty in administering the Berne Convention’s provisions, and obstacles for multinational corporations looking to adopt AI programs or develop them. Member states are free to expand copyright protection so long as it extends equivalent protection to foreign and domestic authors, but that protection will not extend beyond that country’s borders.[27] WIPO has to balance the international pressure of the Berne Convention, but also the internal pressure of decisions made in signatory countries.

If WIPO were to support a more expansive understanding of human authorship, like China or even the United Kingdom, it would certainly flip the traditional landscape for international copyright protection on its head.[28] Beyond a disruption to the traditional landscape, it likely also betrays the original textual understandings and purposes of the Berne Convention.[29] To adopt China’s current policy on copyrighted works would ignore the strain placed on the provisions in the Berne Convention regarding moral rights. It is hard to imagine that an author has the same emotional connection to his or her work if the only involvement the author had was generating generalized prompts for AI to interpret. While it would allow for greater flexibility, it has the potential to cause greater confusion and issues in administering the Berne Convention if the majority of signatory countries have not adopted that definition. It would be within the missions of WIPO to provide stability and a framework if WIPO denounced AI-Generated works as lacking a human author, but it would also be within the mission of WIPO to provide for advancements of creativity, though limiting that creativity to that of human authors.

  1. See Srividya Jandhyala, International and Domestic Dynamics of Intellectual Property Protection, 50 J. WORLD BUS. 284 (2015).↑
  2. See Artificial Intelligence and Intellectual Property, WORLD INTELL. PROP. ORG., https://www.wipo.int/en/web/frontier-technologies/artificial-intelligence/index# (last visited November 2, 2025).↑
  3. Berne Convention for the Protection of Literary and Artistic Works, Jul. 14, 1967, 1161 U.N.T.S. 3 [hereinafter Berne Convention].↑
  4. See Jane C. Ginsberg, People Not Machines: Authorship and What it Means in International Copyright Law, Across Intellectual Property: Essays in Honor of Sam Ricketson, Graeme W. Austin, Andrew F. Christie, Andrew T. Kenyon & Megan Richardson (Eds.), Cambridge University Press (2020) (analyzing legislative history and textual implications of the Berne Convention’s establishment).↑
  5. Berne Convention for the Protection of Literary and Artistic Works, supra note 3.↑
  6. See Graeme Austin & Jane C. Ginsberg, Authors’ Rights as Human Rights, Australian And New Zealand Society of Intl. L., https://anzsilperspective.com/authors-rights-as-human-rights/(Last visited Nov. 2, 2025).↑
  7. See Ethan Schow, Updating the Berne Convention for the Internet Age: Un-Blurring the Line Between United States and Foreign Copyrighted Works, 37 Byu J. Pub. L. 385, 388 (2023).↑
  8. See Graeme & Ginsberg, supra note 6.↑
  9. David A. Simon, Copyright, Moral Rights, and the Social Self, 43 Yale J. L. & Human. 754, 755 (2023).↑
  10. See Thaler v. Perlmutter, 130 F. 4th 1039, 1044-45 (D.C. Cir. 2025) (holding that the Copyright Act human authorship requirement does not grant copyright protection to machines).↑
  11. Johannes Fritz, The Notion of ‘Authorship’ Under EU Law– Who Can be an Author and What Makes One an Author? An Analysis of the Legislative Framework and Case Law, 19 J. Intell. Prop. L. & Prac. 552, 553 (2024).↑
  12. Hina Allauddin, Anis Iqbal & Faisal Shahzad, Re-Assessment of Copyright Protection Under the Berne Convention (1886): The Juridical Status and Challenges of Emerging Artificial Intelligence (AI) Generated Works, 3 Intl. J. Soc. Sci. Bull. 350, 353 (2025).↑
  13. Aaron Wininger, Chinese Court Again Rules AI-Generated Images Are Eligible for Copyright Protection, CHINA IP LAW UPDATE, https://www.chinaiplawupdate.com/2025/03/chinese-court-again-rules-there-is-copyright-in-ai-generated-images/ (Mar. 14, 2025); but see Yuanxiao Xu, China’s Controversial Court Rulings on AI Output– and How It May Affect People in the US, AUTHORS ALLIANCE, https://www.authorsalliance.org/2025/04/03/chinas-controversial-court-rulings-on-ai-output-and-how-it-may-affect-people-in-the-us/ (Apr. 3, 2025) (noting that these Chinese Court decisions are not precedential, but suggest that lower courts will be likely to follow the guidance of high courts under the “consistent adjudication” requirement).↑
  14. Wininger, supra note 13.↑
  15. Id.↑
  16. See Feist Publications., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).↑
  17. See Justin Bonfiglio, Copyrightability and Artificial Intelligence: A New Report From the U.S. Copyright Office, AUTHORS ALLIANCE, https://www.authorsalliance.org/2025/02/20/copyrightability-and-artificial-intelligence-a-new-report-from-the-u-s-copyright-office/ (Feb. 20, 2025).↑
  18. Id.↑
  19. See Laura Bicker, From Chatbots to Intelligent Toys: How AI is Booming in China, BBC, https://www.bbc.com/news/articles/ckg8jqj393eo (Mar. 10, 2025).↑
  20. Berne Convention art. 5.↑
  21. Id.↑
  22. See Xu, supra note 13.↑
  23. Thus, even if China would recognize AI generated works as protected by copyright, other member states would not have to adopt that interpretation unless the Berne Convention itself is interpreted to protect AI generated works.↑
  24. Generative AI: Navigating Intellectual Property, World Intell. Prop. Org. (Aug. 2024), https://www.wipo.int/edocs/pubdocs/en/wipo-pub-rn2024-8-en-generative-ai-navigating-intellectual-property.pdf↑
  25. See Aqeel H. Abbas & Salma A. Raheem Abdul Hasan, The Role of the World Organization “WIPO” in Promoting Intellectual Property Rights, 10 Intl. Acad. J. Inst. Sci. Tech. 1 (2023) (arguing that the role of WIPO is to promote human discovery and innovation).↑
  26. See World Intell. Prop. Org., supra note 2.↑
  27. See Berne Convention art. 5.↑
  28. See Ginsberg, supra note 4.↑
  29. Id. at 87 (arguing that the underlying purpose of the Berne Convention is rooted in personal creativity, rather than economic innovation).↑