Ngo Minh Tin1*, Tran Thi Thu Thao2
1 Faculty of Law, University of Economics and Law, Viet Nam National University Ho Chi Minh City, Ho Chi Minh City, Viet Nam
2 Faculty of Law, University of Economics and Law, Viet Nam National University Ho Chi Minh City, Ho Chi Minh City, Viet Nam
*Ngo Minh Tin: (Phone: +84 936 352 325; Email: [email protected])
ABSTRACT
Protecting the creative rights of humans is a core principle in countries’ intellectual property laws and has long received significant attention. In Vietnam, the right to creative freedom has been constitutionally and concretized in the Intellectual Property Law through many amendments. In the context of the current rapid development of the economy, science, and technology, the protection of intangible assets, especially intellectual property, has become increasingly urgent and accepted by the government, along with people of different countries pay due attention. However, besides protecting people’s creative rights, people have created countless tools to serve themselves in the process of human beings, including artificial intelligence (AI). Like humans, history is witnessing a significant development of AI, especially when AI can create works and inventions on its own, which has raised many legal issues that we need to solve. This issue has received more attention since the State of Saudia Arabia granted Sophia citizenship. From here, it has raised the question if Sophia uses the citizenship granted by Saudia Arabia to establish rights to the intellectual property created by her, will Vietnam and other countries protect or not? Thereby, in this article, the author will analyze and answer whether AI’s creativity is protected by intellectual property and the practice of granting citizenship to Sophia, thereby giving Vietnam an overview of the protection of the creative rights of AI.
Keywords: artificial intelligence, AI, intellectual property, IP, Sophia robot
1. Introduction
With humans’ relentless creativity and the development of science and technology, robots with human-like intelligence or only in some fields are no longer just human dreams and only appeared in sci-fi movies. Instead, AI has gradually been perfected in practice and applied to replace humans progressively in areas of life from education, health care, management, science, and technology in heavy jobs and reduce the cost of hiring employees. According to the Cambridge dictionary, artificial intelligence can be understood as the computer technology that allows something to be done in a way that is similar to the way a human would do it (Artificial Intelligence, n.d.). In 2017, Robot Sophia, with her humanoid form and outstanding intelligence, was granted citizenship by Saudi Arabia the same as their citizenship people, which is considered as an important milestone in history when the first humanoid robot with artificial intelligence became the citizen of a country (Griffin, 2017). However, the granting of citizenship to Sophia by Saudi Arabia leads to a number of legal issues that we need to address, especially regarding the establishment of AI intellectual property rights of AI-generated creations. Indeed, AI has reached an unprecedented stage of thinking in history, specifically the generation of humanoid and self-learning AIs that independently create patentability works or materials (Intelligence be Entitled to Intellectual Property Protection?, 2018) has played an important role in developing intellectual property for human society itself. In April 2016, The Next Rembrandt project unveiled a painting created by an AI algorithm that mimics the subject matter and style of the famous artist almost indistinguishably (A “New” Rembrandt: From The Frontiers Of AI And Not The Artist’s Atelier, 2016). Meanwhile, in the principle of intellectual property rights registration, the laws of Vietnam and most countries currently only protect creations from the human brain. In other words, the Intellectual Property Law does not cover the creations of robots. Accordingly, Article 2, Vietnamese Intellectual Property Law shall apply to Vietnamese organizations and individuals and to foreign organizations and individuals who satisfy the conditions stipulated in this Law and any international treaty of which Vietnam is a member. The provision means that from the perspective of legal persons, Vietnamese Law only accepts the protection of creations from Vietnamese nationality or nationality in certain countries in certain specified cases. In other words, we only protect if that individual is a citizen of a nation. With the current regimes in terms of regulations and practice, Vietnam currently does not accept protection for stateless people. The question is that in case Sophia uses her citizenship granted by Saudi Arabia and registers to establish the rights to the intellectual property created by her, will Vietnam protect her creativity? Sophia’s correspondence in Vietnam as a citizen of Saudi Arabia or not is a problem, not only for Vietnam but all countries need to answer and have a stressful solution to solve the worthy problem determination.
2. Theoretical basis
The topic applies the perspective of the Balance of interests theory and the Fair use Theory as the central theoretical basis for the research process. In addition, in this article, the author also applies the Lex natural law Theory as a theoretical foundation to orient about human creative freedom.
The project is expected to analyze two main contents in the order of first and last, including Protection of Sophia’s creative rights; Experience for Viet Nam.
3. Protection of Sophia’s creative rights
Sophia, the first AI robot with the most humanoid appearance, was designed and developed by the technology company Hanson Robotics (Sophia, n.d.). Sophia is equipped with artificial intelligence, facial recognition technology, voice and image data processing capabilities. Thus, Sophia can display human-like expressions and interact with humans by giving unique responses based on particular situations or interactions. Sophia also used her AI to generate some of her own “ideas”, words, and behaviors (Sophia, n.d.). Accordingly, in 2017, Sophia was granted citizenship by Saudi Arabia as a human. Although this is only seen as one of the efforts of the Saudi government to promote and help people know about Saudi Arabia in AI development (Should robots be citizens?, n.d.). However, this has raised a number of legal issues related to the establishment of rights and protection for intellectual property created by AI, especially by Sophia, the first robot with citizenship of member state that joins most international treaties on intellectual property. The complex problem for countries, including Vietnam, is that we have both comply with the commitment to protect creativity for citizens of member states, including Saudi Arabia, and ensure the principle of only protecting creations from human brains. Do we have to protect the intellectual property rights of Sophia’s works and products, and who is the author and owner of such intellectual property if they are protected? Would it be Sophia or the company Hanson Robotics or the creator of Sophia? When entering into legal relations in other countries, particularly establishing rights to intellectual property, can Sophia be considered as a citizen of Saudia Arabia to register on her behalf as an author and /or will the owner in the applications establish intellectual property rights to the works, trademarks, inventions or will still consider Sophia as an AI robot and not protected? If so, will a machine be able to exploit rights and fulfill obligations to intellectual property on its own, or will it still belong to humans (Loumes, 2020)?
Indeed, the purpose of establishing intellectual property rights is to give the right holder the exclusive right to use and exploit for profit, to compensate for investments in the innovation process, license their intellectual property as well as prove themselves as the legal owner in case of a dispute over intellectual property that needs state protection or technology transfer in case of demand. If AI-generated creations are protected, will the purpose of protecting intellectual property be achieved when AI does not need exclusive use, and how can AIs independently use their Intellectual property rights when it lacks moral rights and legal rights under the civil law.
In the principle of registration to establish intellectual property rights, the laws of Vietnam and other countries only protect creations from the human brain, showing that intellectual property law does not protect inventions of robots. Because AI is a human product being where they design it to think on its own and make its own decision, they aren’t human and don’t operate as human, in other words, they lack soul (Jhunjhunwala, 2018). This view of the point is also clearly demonstrated through actual cases at intellectual property offices around the world. Accordingly, provisions on the scope of protection of international treaties such as Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), The International Union for the Protection of New Varieties of Plants (UPOV), Paris Convention for the Protection of Industrial Property, Bern Convention for the Protection of Literary and Artistic, all stipulate that this is a human right. Specifically, the intellectual property specified in these international treaties only grants intellectual property rights made by humans without any legal provisions or interpretations on the protection of AI creation.
It is still controversial with many different points of view, including supporting and against the protection of AI as an independent subject in the legal relationship in general and intellectual property law in particular; there are even concerns about the rapid development of AI will harm human security that some experts recommend stopping or limiting AI development. However, in general, most countries agree only to protect works and inventions is created by people. For example, the patent application for food containers (Europe Patent No. EP3564144, 2019) and devices and methods for attracting enhanced attention (Europe Patent No. EP3563896, 2019) of Dr. Stephen Thaler as the applicant, the author of these two inventions is the machine named DABUS (Loumes, 2020) that is filed in the US, Europe, Australia, and South Africa. However, only South Africa has agreed to protect the invention of food containers and is also the first country to protect inventions created and invented by AI. However, this decision by South Africa has caused fierce controversy among intellectual property experts around the world about the feasibility of protecting the granted rights. The European Patent Office (EPO), the United States Patent and Trademark Office (UPSTO), and the Australian IP Office, the United Kingdom Intellectual Property Office (UKIPO) all refused to protect the applications for the same reason that with the current regulations, all stipulate that inventors must be human (Hanson & Jung, 2020). According to the EPO, based on the legal provisions on patent protection, the inventor designated in the patent application must be a natural human being, not a robot capable of thinking like a human. Even the interpretation of the term inventor refers to a natural person. This is an international standard that various national courts have issued these decisions (EPO publishes grounds for refusing two patent applications naming the machine as an inventor 2020). Although the applicant had stated that “he had acquired the right to the European patent from the inventor by being its successor in title, argued that as the machine’s owner, he was assigned any intellectual property rights created by this machine” (EPO publishes) grounds for its decision to refuse two patent applications naming the machine as an inventor, 2020). However, this argument is considered inconsistent with international intellectual property law in general and Vietnam in particular. Accordingly, in refusal decisions, UKIPO argued that a patent could only be granted to humans no matter how “inventor” was defined. However, this decision does not mean that DABUS does not have the creative ability; DABUS is not subject to grant the exclusive right over a patent that is merely according to the definition and interpretation of the law (Nurton, 2020). Since DABUS is not a person, DABUS is not considered the inventor of the patent, so he has no rights to the invention and cannot transfer the rights to Dr. Thaler or to anyone else to exercise the right.
Similarly, the copyright dispute case between Beijing Film Law Firm and Beijing Baidu Network Information Technology Co., Ltd. (the “Film v Baidu case”) (Lin, Li, & Yu, 2019). Accordingly, the plaintiff filed a lawsuit against the defendant because he believes that the defendant has infringed on the copyright of the report made by the software called Wolters Kluwer China Law & Reference, including the right of authorship, the right to protect the integrity of its works and the right of dissemination through the internet. However, the counterargument of the defendant argued that the words and diagrams were automatically generated by a legitimate database software, not created and collected by the plaintiff. Therefore, the article was not created by “human intelligence” and is not covered by the Copyright Law. Based on the provided evidence of both parties, the Beijing court has ruled that, according to Article 3, Copyright Law, an AI-generated work is not considered a “work” as defined in this Law, whether it is considered original or not? Moreover, only human creations can be considered protected work. AI software cannot be considered the author of the work, and the creator of the AI software or the user of the AI software cannot be considered the author for they did not directly or assist in the creation of the work. However, the court also noted that while AI-generated work is not protected by copyright, the investment in creating the work should nevertheless be protected (He, 2019).
From the two cases above, it can be seen that the intellectual property enforcement authorities in the world, including Vietnam, have agreed that the subject of intellectual property protection can only be human. This is also the core problem that legislators need to solve. Sophia is a humanoid AI robot that the innovations made by Sophia will not be protected. However, on the other hand, Sophia has citizenship of Saudia Arabia and will still be recognized as a citizen of Saudia Arabia when entering into legal relations. According to the International Covenant on Civil and Political Rights (ICCPR), a citizen is considered a human being and thus enjoys the rights of non-citizens as well. Being a citizen in one country can mean being a legal person everywhere else (Weaver, 2017), and everyone has the right to be recognized as a person before the Law anywhere under Article 6, Universal Declaration of Human Rights. Article 2 of the Vietnamese Intellectual Property also stipulates that the Law applies to Vietnamese organizations and individuals and foreign organizations and individuals that satisfy the prescribed conditions as well as the international treaties that Vietnam is a member. The regulation can be understood that Vietnam is forced to protect Sophia’s creations if it does not violate the above principles. However, this is still an open question, and there are many controversies on whether or not to renew the intellectual property law provisions to protect AI’s intellectual property rights.
4. Experience for Viet Nam
The fundamental goal of the IP protection system is to encourage innovation by giving the right holder the exclusive rights to use, to determine the intellectual property that they create. Therefore, the protection of intellectual property rights for creations is necessary not only for humans but also for society. Similarly, for AI, this regulation can encourage AI owners to continue to innovate and create. If the current legal regulations remain unchanged and do not protect AI-generated creations, AI-generated works and inventions will be considered public property. Everyone can exploit and use that since then; it cannot attract scientists and investors, which inevitably limits the development of humanity. Accordingly, if AI-generated works are not protected, the owner will use other methods to protect such as trade secrets, and the increase of trade secrets will lead to the delay of information exchange and scientific development for the owner did not gain any benefits from going public (Wipo Conversation On Intellectual Property (IP) And Artificial Intelligence (AI), 2018).
Seeing the importance of protecting AI’s intellectual property, Japan and Korea have a relatively different perspective from other countries, in which they are considering expanding the intellectual protection rights to AI-generated creations. Meanwhile, Article 5, New Zealand’s 1994 Copyright Act suggests that original works, even if created by software, robots, or AI systems, can still be protected under the Law of this country. However, such works will not belong to the robot or intelligent system but to the person(s) who created or used the robot or intelligent system that created the work (Keisner, Raffo, & Vincent, 2016). Whether or not to protect the intellectual property of AI is still a controversial issue, but the intellectual property protection of investors and authors in the process of innovation is essential and must be consistent in the laws of the countries. Aware of that, the World Intellectual Property Organization (WIPO) and EPO have held many seminars to collect opinions of intellectual property experts on this issue. It shows the importance and trend of intellectual property protection in the future and requires Vietnam to be ready to develop legal regulations to integrate with intellectual property law in the world. Accordingly, to decide whether to change its stance on protecting AI’s creative rights, Vietnam should carefully study and consider the approach ways.
In case of accepting the protection of AI’s creative rights, Vietnam needs to have a unified adjustment of the law on the protection of property rights in general and intellectual property rights in particular in a direction that does not require creativity of humans but just the creation, invention and having a legal regime to protect AI-generated creation. However, after adjustment, must clearly define who is the author and owner of AI-generated works and products as well as the rights, interest discrimination between humans and AI with citizenship like Sophia (Klaris and Bedat, 2017). Accordingly, it can be approached in two directions: (1) AI with citizenship like Sophia is protected like a citizen, or (2) protect AI – generation inventions through AI owners. However, these two approaches are still not feasible when not all AIs are granted citizenship like Sophia, and the laws of other countries have not considered granting their country’s citizenship to AI. For protection through the owner, in patent registration, the inventor is not required to be the owner, the author of the invention will be AI or the owner. If it is AI, this implicitly acknowledges the moral rights of AI. On the other hand, if the author is the owner, it does not satisfy the intellectual property, for the author must be the person who directly created the works. The owner of the AI will be the person who is eligible to become the inventor when the person asks the AI to solve a problem if it is the person who creates formulas or structures a problem in a way that requires creative skill but is not where a problem is obvious or well-understood (Abbott, 2019).
In contrast, Vietnam does not accept the protection of AI’s creative rights. Accordingly, legislators will have to adjust the provisions of Article 2 and corresponding regulations related to intellectual property rights holders, for example, Article 13, Intellectual Property Law, to supplement provisions on the exclusion of protection creative rights for citizens of other countries if that citizen is not a specific person, and add the phrase Vietnamese citizen, foreigners, stateless person for more explicit. However, as analyzed above, not protecting the creative rights of AI will negatively inhibit the development of the science and technology economy, causing losses to the development of humanity, which in the words of the advocate group, is a setback in human creativity.
5. Conclusion
From Sophia’s case, it can also be seen that when setting grounds on intellectual property right protection, international and Vietnamese lawmakers, was not anticipated the development at the stage where AI could develop to replace humans in all aspects of life, including creativity. Since then, current regulations cannot predict this change, leading to confusion in handling matters and disagreements in resolution.
However, whether we like it or not, humanity in general and Vietnam, in particular, cannot deny the significant role of AI in the development of humanity. This puts us in a situation where we must make a quick decision to protect AI creativity, and if so, how and when appropriate.
Through Sophia being granted citizenship, many legal issues were raised and needed to be resolved. The protection of creative rights for AI at present is both an opportunity and a challenge. In Vietnam, the author believes that it is too early to decide whether to protect the creativity of AI. Therefore, Vietnam needs to carefully research and consult scientific points of view from scholars worldwide before making official decisions to get the most relevant results.
ACKNOWLEDGEMENTS
The authors hereby declare that there is no conflict of interest in the publication of this article.
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