Reviving ‘computer-generated works’: should Hong Kong copyright law adapt the rule to harness AI opportunities?

Abstract In July 2024, the Hong Kong government released a public consultation paper on copyright and artificial intelligence (AI), addressing emerging copyright issues in the era of generative AI. A key focus is the government’s interpretation of the existing Copyright Ordinance provisions on computer-generated works (CGWs), concluding that these provisions already support copyright protection for AI-generated content (AIGC), including literary, dramatic, musical and artistic (LDMA) works and non-LDMA works. The government claims that the current framework provides sufficient incentives for AI investment and creativity. However, this article challenges the government’s position by identifying three major concerns. First, applying the CGWs provisions to AIGC under a plain reading leads to an ‘originality paradox’ that cannot be resolved by reframing the doctrine as entrepreneurial rights. Second, this approach risks a ‘contributor thicket’, where too many individuals involved in the AI creation chain could qualify as authors. Third, protecting AIGC, irrespective of human input, undermines the policy objectives the government seeks to promote; any potential benefits may be outweighed by resulting harms. The article urges the government to adopt a more cautious and nuanced approach. Rather than relying on ambiguous provisions to advance distant policy goals, the government should use forthcoming guidelines to promote a refined interpretation of the CGWs doctrine. More importantly, it should initiate a new round of consultation to reconsider the viability of the CGWs provisions, with serious consideration given to their revision, repeal or replacement with a new rights model tailored for the AI era.