Abstract

In Andersen’s tale of The Emperor’s New Clothes, the sovereign parades through the city convinced he wears magnificent garments, while in reality he is naked. The courtiers, unwilling to admit the obvious, sustain the illusion until a child speaks the truth. Copyright law now finds itself in a similar predicament. This article contends that originality functions like the Emperor’s garment in our intellectual property system, perceptible only because the law insists on treating it as real. The rise of generative artificial intelligence (GenAI) has destabilized the legal and philosophical foundations of originality.

While copyright law has traditionally tied originality to the human author’s creative spark, the proliferation of AI-generated outputs challenges the coherence of this paradigm. This article demonstrates how U.S. litigation under the Digital Millennium Copyright Act (DMCA), Actor- Network Theory (ANT), and divergent judicial approaches in China exemplify distinct yet mutually implicated responses to the post-authorial condition by rephrasing originality. The point of departure for understanding originality, long upheld as the sine qua non of copyrightability, is to trace the shifting historical frontiers through which it has been defined.

Keywords: generative artificial intelligence, GenAI, Copyright law, originality, Digital Millennium Copyright Act, Actor- Network Theory, divergent judicial approaches, china