Month: February 2021

“This article was automatically written by Tencent Dreamwriter robot”

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“This article was automatically written by Tencent Dreamwriter robot”

Nanshan’s Court got certainly worldwide noticed for a pivotal decision, namely “Shenzhen Tencent Computer System Co., Ltd. (“Tencent”) vs Shanghai Yingxu Technology Co., Ltd. (“Yingxu Technology”)” (full text available here).

With this judgement, the Chinese Court ruled in favor of recognizing protection to AI-generated content under Copyright Law.  

Specifically:

  • In August 2018, Tencent published an article on the Shangai stock exchange index on its website, which terminated with the following statement: “This article was automatically written by Tencent Dreamwriter robot”;
  • The article was written with the support of the software Dreamwriter;
  • Tencent claimed that Dreamwriter computer software was a data set and algorithm-based intelligent writing assistance system, independently developed by Tencent Technology (Beijing) Co., Ltd (an affiliate of Tencent), then licensed to Tencent (see claim here);
  • Yingxun Technology published the same article on the Shangai stock exchange index on its website;
  • Tencent claimed, inter alia, copyright infringement since, according to its point of view, the article on Shangai stock exchange was protectable under copyright law and the rights were attributable to it;
  • The Chinese Court (specifically, the Court of Nanshan) ruled in favor of recognizing protection to an article written with the support of an AI under Chinese Copyright Law, sustaining – in brief – that the article (a) could be included within the scope of protection being a literary work and that (b) “creative choices” were made by the team who selected the data to be included in the AI which then was involved in the making of the work.

The decision here addressed represents a pivotal decision with reference to AI-generated content protection.

Notwithstanding the above, please note that of course the discussion on protectability and ownership of AI-generated content is still open at a worldwide level.

Francesca Di Lazzaro and Maria Di Gravio

Court of Nanshan (District of Shenzhen) 24 December 2019 – Case No. (2019) Yue 0305 Min Chu No. 14010, Shenzen Tencent Computer System Co., Ltd. vs Shanghai Yingxu Technology Co., Ltd.

Marketing communications, food & beverage and children’s protection. IAP adopts a new regulation.

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On 9th February, the Italian Institute for Advertising Self-Regulation  published the new regulation for Marketing Communications relating to food and beverages, the protection of children and their proper nutrition (full text available here).

In particular, these rules aim at integrating the provisions of the Code of Marketing Communication Self-Regulation which, in art.11, pays particular attention to the protection of children, who can be identified as individuals under 12 years old.

The new regulation focuses on the presentation of food products and beverages, affirming that it must avoid statements that could mislead children, including through omissions, ambiguities or hyperbolical overstatements, especially as regards the nutritional characteristics of the product.

Furthermore, Article 5 of the Regulation states that marketing communication must not stress the positive qualities of the nutritional aspects of foods or beverages that are dependent on fat, trans-fatty acids, sugar, sodium or salt, the over-intake of which is not recommended.

The regulation is in addition and without prejudice to the provisions of the digital chart, which constitutes the rules that social media influencers and vloggers must observe in order to ensure the distinctiveness of the commercial message.

Matteo Falcolini

Artificial inventors – the EPO President requested to comment on the Dabus case

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We already referred about the Dabus case (see here, and here) and that appeal proceedings are pending before the EPO, against two decisions of 27 January 2020 that refused the applications designating an AI system as the inventor.

Now the EPO President requested the Board of Appeal to comment on the relevant questions (here). The EPO decisions held that the inventor must be a human being to fulfil the requirement for designation of inventor in the procedural and substantive terms. This seems also an international standard (based on discussions with the IP5 offices). The applicant contests such a standard. Given the importance of the issue and that this is the first time the EPO will take formal position on this, the President requested to comment on it.

The Board of Appeal granted the EPO President’s request (here). There are two main topics on which he wishes to comment. And the BoA made some additional thoughts:
(i) If the inventor must be a human being from a formal and substantive angle – what is the purpose of such requirement? Is it redundant?

The BoA advanced that:

  1. one possible view is that the sole purpose is to enhance the protection of the inventor’s right to be mentioned as such. In this case, if the application does not mention a person with legal personality as inventor, it could be argued that the requirement to designate the inventor is redundant.  This would be based on the concept that human intervention is not an inherent element of a patentable invention under Art. 52 EPC.
  2. On the other hand, if the concept of “invention” was limited to human-made inventions, the function of the inventor designation rules would also be to facilitate examination of a substantial requirement.
Risultato immagini per robots making experiments

(ii) Does the EPO have competence to examine the acquisition of the rights on the invention? If yes, what principles should the EPO apply?

The President now has 3 months to deliver his comments. More updates soon.

Francesco Banterle

EPO Board of Appeal, communication of 1 February 2021, in the appeal proceedings relating EP 3564144

The Italian Competition Authority fines Facebook for misleading practices regarding data, chapter two

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Today, the Italian Competition Authority (ICA) issued a 7 million euro fine to Facebook Ireland Ltd and Facebook Inc for failing to comply with the request to end their unfair practice regarding the use of users’ personal data, and to publish a due rectification (full text in Italian here).

Indeed, in November 2018 the ICA found the information given by Facebook to the users at the moment of the creation of the account misleading, due to the lack of adequate disclosure about the economic value of their personal data, which are monetized through the supply of targeted advertising (case PS1112). On the contrary, the ICA found that Facebook emphasized the free nature of the service, inducing users into making a transaction that they would not have taken otherwise. The misleading nature of such practice has also been confirmed by the Italian administrative judge (T.A.R. Lazio, decisions nn. 260/2020 and 261/2020).

The ICA advances that Facebook, despite having removed the claim about the free-of-charge nature of the service, still fails to provide users with clear information on the role of data as a means of payment in the exchange.

Alessandro Cavalieri

Italian Competition Authority, decision of 17 February 2021, ICA v. Facebook Ireland Ltd and Facebook Inc