Abstract Digital humans have become a prominent new market phenomenon worldwide. However, applying intellectual property (IP) frameworks to this phenomenon remains in its nascent stage. This paper aims to explore effective pathways for protecting the IP rights of digital humans within the existing legal framework. Through textual analysis of Chinese legal texts and judicial cases, alongside references to EU, US, and Japanese precedents, this study argues that copyright protection offers the most rational and practical framework within China and may serve as a valuable reference globally. Centered on the core criterion of protecting human original creation, this paper systematically examines the applicability of copyright protection to the two key components of digital humans: appearance and driving mechanism. Regarding appearance protection, it contends that designs entirely created by humans may be recognized as works in the copyright sense, while program-generated appearances depend on the extent of human creative input. Additionally, the study addresses the resolution of conflicts between copyright and personality rights arising from appearances based on real individuals. Concerning driving mechanism, a distinction is drawn between human-driven and AI-driven processes. The paper proposes that the “Naka no Hito” (the person inside) aligns most closely with the legal status of performers, while AI-driven audio-visual outputs typically lack sufficient and identifiable human creative contribution to meet the originality threshold for direct classification as works. The findings indicate that integrating the original creation in the appearance and driving mechanism of digital humans into the existing copyright and neighboring rights frameworks can provide foundational protection. However, pressing challenges require further resolution, particularly in quantifying the originality threshold of human inputs—such as “prompts” in generative AI—and achieving systematic coordination of diverse rights across varying legal jurisdictions.
Ye et al. (Sat,) studied this question.