Ryan Whalen on Human-Required Originality: Copyright Eligibility in a Post-AI World (AIPLA Quarterly Journal)

"Human-Required Originality: Copyright Eligibility in a Post-AI World"

Ryan Whalen
American Intellectual Property Law Association Quarterly Journal, September 2026, Vol.54, Issue 3
Published online: March 2026

Abstract: Generative artificial intelligence upends the assumptions that have anchored U.S. copyright law for more than a century. By enabling the production of high‑quality expressive works at effectively zero marginal cost, GenAI destabilizes copyright’s utilitarian foundation and exposes a deep incoherence in the originality requirement: the law grants exclusive rights to human‑authored works that could have been produced just as easily—and at no cost—by modern generative systems, while denying protection to the machine‑generated equivalents that render human effort unnecessary. At the same time, GenAI introduces a dynamic risk that existing doctrine is unequipped to address: as AI increasingly substitutes for human creators in markets characterized by commoditized content, human participation may collapse, starving future models of the novel, high‑signal training data needed for continued aesthetic and cultural evolution. Left unaddressed, these twin pressures threaten both the theoretical coherence and the long‑term creative vitality of the copyright system.

This Article argues that the core of the problem lies not in questions of infringement or AI authorship, but in copyright’s threshold requirement: the “modicum of creativity” standard no longer filters works that require human incentives from those that do not. I propose a new, technologically grounded interpretation of originality—the human‑required creativity standard—under which copyright protection attaches only to works that could not have been generated by state‑of‑the‑art models with de minimis human input at the time of authorship or registration. This content‑focused approach restores alignment between copyright’s incentives and its constitutional purpose by denying protection to trivially generable works regardless of whether a human or a machine produced them, while continuing to protect works that demand meaningful human creative contribution. ...Click here to read the full article.

Ryan Whalen et al on Measuring Human Contribution in AI-Assisted Content Generation

"Measuring Human Contribution in AI-Assisted Content Generation"
Yueqi Xie, Tao Qi, Jingwei Yi, Xiyuan Yang, Ryan Whalen, Junming Huang, Qian Ding, Yu Xie, Xing Xie, Fangzhao Wu
ACL Anthology
Published online: July 2026

Abstract: With the growing prevalence of generative AI, an increasing amount of content is no longer exclusively generated by humans but by generative AI models with human guidance. This shift presents notable challenges for the delineation of originality due to the varying degrees of human contribution in AI-assisted works. This study raises the research question of measuring human contribution in AI-assisted content generation and introduces a framework to address this question that is grounded in information theory. By calculating mutual information between human input and AI-assisted output relative to self-information of AI-assisted output, we quantify the proportional information contribution of humans in content generation. Our experimental results demonstrate that the proposed measure effectively discriminates between varying degrees of human contribution across multiple creative domains. To further enhance real-world applicability, we extend the framework to estimate the minimal necessary human contribution for any text without requiring human input and validate its effectiveness. We hope that this work lays a foundation for measuring human contributions in AI-assisted content generation in the era of generative AI.

[Summer course] Law/Data: An Introduction to Computational Methods for Legal Research

This is a 5-Day Course Designed for PhD Students and Legal Academics.

Period: August 24 – 28, 2026 (Monday – Friday)

Venue: The University of Hong Kong

 

課程中文資料，請按此 (Click here for course information in Chinese)

 

Course Overview

This five-day intensive course introduces PhD students and early career researchers in law and law-related disciplines to computational methods for legal research. Designed specifically for participants with no prior experience in computer programming, the course provides a practical and conceptually grounded introduction to how computational techniques can be used in contemporary legal scholarship.

 

Computational methods—such as text analysis, data collection, and visualization—are increasingly used across legal studies, socio-legal research, and interdisciplinary work that engages with courts, legislation, policy, regulation, and legal institutions. Yet many legal researchers lack structured opportunities to acquire these skills in a supportive, methodologically oriented environment. This course addresses that gap.

 

Lecturers:

• Ryan Whalen (Associate Professor & Director of the Centre for Interdisciplinary Legal Studies, The University of Hong Kong Faculty of Law)

• John Zhuang Liu (Associate Professor, The University of Hong Kong Faculty of Law)

 

The course is hosted at The University of Hong Kong and sponsored by the HKU Centre for Interdisciplinary Legal Studies.  The course will be taught in English.

 

Aims and Learning Objectives:

 

By the end of the course, participants will:

 

• Understand how computational approaches can be integrated into doctrinal, empirical, and interdisciplinary legal research

• Gain hands-on experience with basic computational techniques commonly used in legal studies

• Develop foundational literacy in programming concepts relevant to research

• Learn to critically assess the strengths and limitations of computational methods in legal contexts

• Be equipped to begin using computational tools independently or in collaboration with other researchers

 

The emphasis throughout is on methodological understanding and research design, rather than technical mastery.

 

Course Structure and Content:

The course runs over five consecutive days and combines short lectures, guided hands-on exercises, and discussion sessions. Topics include:

 

• Introduction to computational legal research and research design

• Working with legal texts and documents

• Basic text analysis and legal corpus exploration

• Data collection, cleaning, and management for legal research

• Visualization and exploratory analysis for legal questions

• Reproducibility, transparency, and ethical issues in computational legal research

 

Practical sessions are carefully scaffolded and assume no prior coding experience. Examples and exercises are drawn from law and law-related research contexts.

 

Teaching Approach

The course adopts a beginner-friendly, research-led pedagogy. Technical concepts are introduced slowly and motivated by concrete legal research problems. Participants will work with real legal materials and research scenarios, allowing them to reflect on how computational methods intersect with doctrinal reasoning, qualitative interpretation, and normative analysis.

 

No prior programming experience is required, and no technical background is assumed.

 

Who Should Attend?

This course is designed for PhD students in law and law-related disciplines, early career researchers conducting legal, socio-legal, or interdisciplinary research, and researchers interested in incorporating computational methods into their work. Participants from all legal traditions and research areas are welcome.

 

Fees (in Hong Kong dollars):

• HKU students and staff: $ 2,500

• Students (non-HKU): $ 4,000

• Public: $ 6,000

• $500 discount for early-bird payment by June 15, 2026, Hong Kong Time

 

Certificate of attendance will be given out to course participants. Register for the course: https://hkuems1.hku.hk/hkuems/ec_hdetail.aspx?guest=Y&ueid=104795.  A payment link will be sent to registrants later.

 

For inquiries, contact Ms. Grace Chan at mcgrace@hku.hk / 39174727.

Ryan Whalen et al on The institutional dynamics of inequality for women inventors who break with conventional thinking (PNAS)

"The institutional dynamics of inequality for women inventors who break with conventional thinking"
Tara Sowrirajan, Ryan Whalen, and Brian Uzzi
Proceedings of the National Academy of Sciences (PNAS)
Published online: April 2026

Significance: The gender innovation gap—where women’s inventions are less likely to be patented or pursued—raises concerns about its potential to slow scientific progress. Our analysis of millions of patent applications reveals that the gender gap in patenting is not uniform across conventional and unconventional patents. Rather, it manifests for women inventors who attempt to patent unconventional inventions—innovations that combine knowledge in unfamiliar ways. We find the USPTO’s practices overassign women inventors to women examiners who are relatively inexperienced and more likely to reject unconventional inventions due to their inexperience, not due to gender stereotypes. By identifying these institutional barriers, we propose that organizational policies can complement gender bias explanations and may more immediately address the gender innovation gap.

Abstract: Though women comprise a growing share of the scientific workforce, the gender innovation gap in patenting between men and women inventors persists, potentially limiting innovation output and equity. We study millions of scientific and technological innovations and find that the innovation gap faced by women is not universal. No gap exists for highly conventional innovations, which combine ideas in familiar ways. Rather, it exists when women inventors attempt to patent unconventional inventions, which combine ideas in surprising ways and drive scientific advancements. Our data suggest that rather than deliberate bias, a confluence of institutional practices lower women inventor’s chances of patenting unconventional innovations. We find that women examiners relative to men have less of the on-the-job experience needed to appraise unconventional innovations. Additionally, women examiners are overassigned to women applicants, reducing their odds of successfully patenting unconventional inventions. Lastly, traditional explanations weakly account for this innovation gap because men examiners grant comparably more unconventional innovations to women inventors than do women examiners. These institutional barriers reveal new factors that slow innovation, but at the same time can be more directly addressed than deeply rooted gender norms.

New issue of Hong Kong Law Journal (Vol. 55, Part 3 of 2025)

HONG KONG LAW JOURNAL

Vol. 55, Part 3 of 2025

Editor-in-Chief: Prof. Eric C Ip

Deputy Editor-in-Chief: Prof. Trevor Wan

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Articles

The Seventh Wave of Constitution-Making in Retrospect

Cheryl Saunders ...405

The Rule-of-Law Ideal: Architecture, Core and Commitments

Gerald J Postema...425

Breach of Fiduciary Duties and Constructive Trusts

The Hon William Gummow AC...435

Interdisciplinary Training and Research Impact in the Legal Academy

Abeer Sharma, Shuting Zhang and Ryan Whalen...441

Two Conceptions of Consideration: Reflections from England and Hong Kong

Alexander Georgiou...460

Directors’ Duty on Climate Change under English Law? Lessons from Sequana and ClientEarth

Min Yan...483

Improving Foreign Bank Branch Regulations to Pursue a Global Financial Hub: A Comparative Analysis of South Korea and the Global Regulations

Dong Won Ko and Ji Woong Seok...499

The Reconsideration of Territorial Link Requirement of Invisible Investment in ISDS: A Novel Analysis from Sociological Aspect

Fang Gu...535

Gleaning Pearls of DMA for Anti-monopoly Enforcement on Digital Platforms: A Chinese Perspective

Yujie Tong, Peicheng Wu and Charlie Xiao-chuan Weng...562

Revisiting the Proof of Foreign Law

Michael Chung...587

Foreign Government Inaction in US Trade Remedy Laws: When the Emperor is Frustrated by His Empire

Phuong Ngoc Tran and Jaemin Lee...608

Let’s Trade Data Like Stocks: China’s Data Exchange Regulation

Dinghao Zheng and Lerong Lu...634

Ryan Whalen et al on Interdisciplinary Training and Research Impact in the Legal Academy (HKLJ)

"Interdisciplinary Training and Research Impact in the Legal Academy"
Abeer Sharma (PhD candidate), Shuting Zhang and Ryan Whalen
Hong Kong Law Journal, Vol. 55, Part 3 of 2025, pp.441 - 459

Abstract: This study examines the relationship between interdisciplinary educational backgrounds and academic impact among legal scholars. Analyzing data from faculty members at 50 of the world’s leading law schools, we explore whether scholars with degrees in fields outside of law achieve higher scholarly influence than their peers who hold only law degrees. Our findings reveal that legal academics with interdisciplinary training tend to have significantly greater academic impact, suggesting that integrating perspectives from other disciplines enriches legal scholarship. These results underscore the value of interdisciplinary education in the legal academy and support the incorporation of interdisciplinary approaches in hiring practices, curricula and research initiatives to foster innovation and address complex societal challenges.

Ryan Whalen et al on Measuring the Value of Trademark Distinctiveness: Evidence From the Market for Bordeaux Wine (JELS)

"Measuring the Value of Trademark Distinctiveness: Evidence From the Market for Bordeaux Wine"
Christopher Buccafusco, Jonathan S. Masur, Ryan Whalen
Journal of Empirical Legal Studies
Published online: September 2025

Abstract: The market value of distinctive trademarks is a fundamental assumption of both trademark law and marketing theory. However, there is little empirical evidence underlying this assumption. We examine the relationship between brand dissimilarity and market prices in the context of the Bordeaux wine market. Using a unique dataset covering thousands of wines and their associated prices and professional ratings, we find that brand distinctiveness is related to higher wine prices. We further show that this relationship persists across the wine quality spectrum, with both lower quality and higher quality wines benefiting from dissimilar marks. Finally, we show that while there is a dissimilarity price premium for lower quality wines, producers who invest in higher quality wines are rewarded with an even greater premium for dissimilar names in absolute dollar terms.

Ryan Whalen et al on Clearing Dense Drug-Patent Thickets (NEJM)

"Clearing Dense Drug-Patent Thickets"
Bernard Chao, Ryan Whalen, Aaron S. Kesselheim, and S. Sean Tu
The New England Journal of Medicine
Published online: November 2024

Brand-name drug manufacturers in the United States charge high prices during market-exclusivity periods, enabled by patents that block direct competition from generics and biosimilars. When bringing a generic or biosimilar drug to the market, potential competitors must avoid infringing on each patent protecting the brand-name drug by waiting for relevant patents to expire, making product-design choices to avoid overlap with patented inventions, or challenging patents and having them invalidated by a court. Successful drugs are frequently protected by a large number of often-overlapping patents, known as a patent thicket. These patent portfolios make it difficult for generics or biosimilars to enter the market and can extend market-exclusivity periods.

Under U.S. law, companies aren’t supposed to be awarded a patent if an invention is obvious, given existing knowledge. But there is one important exception...(click here to read the full text on NEJM)

RGC Awards $4.6 Million in Research Funding to HKU Law 2024/25

Congratulations to our seven colleagues who were successful in the 2024-2025 round of research grant funding by Hong Kong's Research Grants Council (RGC). The seven General Research Fund (GRF) projects that were funded cover a wide range of topics, from China’s plea leniency system to the work conditions of early-career lawyers in China to the problem of animal rescue hoarding in Hong Kong. The details of the new funded projects are as follows:

GRF:

Professor Cora Chan

Liberal Regions in Illiberal States, HK$527,490

Professor Xin He

Appeals and Inequalities in China’s Plea Leniency System, HK$1,040,000

Professor Sida Liu

The Work Conditions of Early-Career Lawyers in China, HK$840,000

Professor John Zhuang Liu

The Rise and Limits of the Chinese Judiciary: Administrative Litigation in China during the Reform Period, HK$716,000

Professor Ryan Whalen

Artificial Intelligence in the Administration of the Patent System, HK$366,626

Professor Michael Ng

Judicial Independence on Trial: Archival study of political interference with the colonial Hong Kong courts (1842-1997), HK$742,000

Professor Amanda Whitfort

Responding to Animal Rescue Hoarding in Hong Kong: A Comparative and Empirical Review, HK$407,644

Ryan Whalen awarded the 2024 Microsoft Research AI & Society Fellow (Copyright Protection for User Data in the Era of LLMs)

Congratulations to Ryan Whalen, who awarded the 2024 Microsoft Research AI & Society Fellow.

Background on the prize: The Microsoft Research AI & Society Fellows program supports interdisciplinary AI research in the context of societal impact. The program offers opportunities for fellows from fields beyond core computer sciences to join and support interdisciplinary research conversations with Microsoft Researchers. By facilitating these new collaborations, Microsoft aims to scale the impact of collective research efforts at the intersection of AI & Society. For more information on the award, click here.