Between independent creation and intellectual choice: a two-tier approach to AI and copyright in China and the EU

The accelerating integration of generative AI into creative processes has placed renewed focus on the fundamental copyright concepts of originality and authorship. While both China and the European Union have addressed these notions in legislation and case law, comparative analysis reveals that the two systems employ divergent thresholds and methodologies, often oscillating between statutory definitions of “works” and judicial constructions of “authorship.” This conceptual instability risks obscuring the core legal standards applicable to AI-generated and AI-assisted outputs.
To resolve this challenge, the contribution introduces the Two-Tier Matrix as a unifying analytical scaffold. The first tier: independent creation as an objective layer of originality, captures requirements such as demonstrable human input and minimal creativity. The second tier: intellectual choice as a subjective layer of authorship, reflects the EU’s insistence that copyright protection arises only where free and creative choices by a natural person can be identified. By structuring originality and authorship in this way, the matrix enables a systematic mapping of statutory provisions, doctrinal debates, and leading cases in both jurisdictions.
The comparative findings suggest that China emphasizes the objective originality tier, lowering the threshold of creativity but requiring at least minimal human involvement in the process. The EU, by contrast, consistently consolidates the subjective authorship tier, as established in Infopaq and Painer, where the decisive criterion is whether the final work reflects the author’s intellectual personality. This divergence highlights differing policy orientations: China prioritizes pragmatic adaptability to technological development, while the EU seeks to preserve a human-centered conception of authorship.