Cuestiones Políticas Vol. 39, Nº 68 (Enero - Junio) 2021, 505-519 IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ

Objects of intellectual property rights created by artificial intelligence: international legal regulation


DOI: https://doi.org/10.46398/cuestpol.3968.32


Pavlo Voitovych * Kateryna Bondarenko ** Ruslan Ennan ***

Alina Havlovska ****

Vladyslav Shliienko *****


Abstract

In modern conditions of development of public relations, the creation of objects of intellectual property rights by artificial intelligence is becoming more widespread. With this in mind, it is important to analyse the international legal experience

of regulating the use of artificial intelligence as the author of intellectual property, to further borrow it for domestic laws, as well as to pay attention to problematic aspects of such regulation and make proposals to resolve inconsistencies. The study clarifies the international legal regulation of intellectual property rights created by artificial intelligence, as well as analyses the problematic issues of regulation of artificial intelligence by international law and the features of such regulation in Ukraine and presents positions on the development of artificial intelligence systems and prospects, as well as the prospects for its impact on world society.

Keywords: artificial intelligence, objects of intellectual property law,

international legal regulation, robotics, Berne Convention.


    1. Provisions of international legislation on the regulation

      of the creation and use of the objects of IP created by AI

      Thus, first of all, it is necessary to analyse the provisions of international legal regulation of the creation, use of intellectual property rights, and the use of artificial intelligence products. Thus, concerning international legal regulation, the guidelines of intellectual property law are contained in the Berne Convention (1886). The Berne Convention became the first multilateral international copyright treaty. It establishes uniform minimum rights for intellectual property. The principles of the Berne Convention form the basis of the Universal Copyright Convention (1952), reaffirmed and extended in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1995). According to the Berne Convention and Universal Copyright Convention, the term “author” can be understood as both individuals and legal entities under the national legislation of the participating countries.

      The development of robotics and artificial intelligence and related legal and ethical issues led to the adoption by the European Parliament of the Resolution of February 16, 2017 with proposals to the European Commission on civil law on robotics. The Resolution emphasizes the need to address the issue of civil liability for damage caused by robots at the European level to ensure equal efficiency, transparency, and consistency in addressing this issue in the EU member states. Besides, the resolution is based on the fact that in the long run, the capabilities of artificial intelligence may exceed human capabilities, so they will be able to enter into contractual relationships, choose contractors, discuss the terms of contracts, enter into and execute them. What is more, the Resolution also focuses on safety and liability issues related to the operation of robots. In particular, it is envisaged that drivers of autonomous vehicles should be able to take control of the car as quickly as possible when needed. Thus, at this stage of the study, it would be logical to say that works created exclusively by artificial intelligence can be objects of intellectual property rights.

      European Parliament Resolution 2015/2013 (INL) of 16 February 2017, which includes the Charter on Robotics, stipulates that robotics is subject to the current system of legal regulation of intellectual property issues, to intellectual property rights – a neutral approach from the standpoint of


      technology. In particular, legal protection of objects created by artificial intelligence systems should be provided taking into account the neutral legal personality, because behind the artificial intelligence systems, first of all, there is a person.

      In April 2019, the European Commission published a Directive on an ethical approach to the development of artificial intelligence (draft) for study by industry. The main provisions of the document are that artificial intelligence should be created to support human subjectivity, and artificial intelligence systems and the results of their activities should be “human- centred, aimed entirely at serving humanity and the common good, to help improve the conditions of human existence and freedom”.

      In May 2019, the Organization for Economic Cooperation and Development, which unites 36 economically developed countries, together with six countries (and then in June 2019, the Ministers of Economy of the G20 countries) defined the principles of dealing with artificial intelligence. It was based on two principles:

      • in order to increase trust in technology and realize its full potential, it is necessary for a person to be at the centre of the use of artificial intelligence.

      • systems must be stable, secure, and reliable throughout the period of their use, and must not carry any unacceptable risks.

      From a legal point of view, the recommendations of the Organization are not binding. However, they are designed to form a unified approach to the interpretation of the criteria for the protection of the performance of artificial intelligence in different jurisdictions.

      Also noteworthy is the 1955 decision of the United Nations International Court of Justice in Nottebohm (Liechtenstein v. Guatemala). This decision was motivated by Part 1 of Article 15 of the Universal Declaration of Human Rights of 1948, which clearly states that “everyone has the right to a nationality”. Citizenship is recognized as an element not only of the exclusive legal personality of individuals but also of artificial intelligence systems. In view of the above, the question arises about the mandatory international delictual capacity of artificial intelligence systems.

      It is also important to note the interpretation of EU Directive 2001/29/ EU on certain aspects of copyright. It is stated that a computer program must be protected if it is original in the sense that it is the author’s intellectual work. This is justified by the fact that any literary and artistic works, or any other intellectual works must be protected by copyright. This applies, in particular, to databases.

      On September 27, 2019, a discussion organized by WIPO on the impact of artificial intelligence on the intellectual property took place. The discussion


      considered various issues related to the impact of artificial intelligence on almost all processes related to the implementation of copyright. The influence of Artificial Intelligence on patent law was also discussed, but we are interested in the position on authorship. As a result of the discussion, the participants came to the conclusion that the legislative process and changes in legislation take a long time. Therefore, if necessary, the issue of recognizing artificial intelligence as the author of the work may be left to the discretion of the court. Moreover, participants agreed that with the development of information technology, it is becoming increasingly difficult to determine who created a work: human or artificial intelligence (Conversation on Intellectual Property (IP) and Artificial Intelligence (AI), 2019).

      Additionally, the attention should be paid to the program called “Bot Dylan” (2020), which has created a large number of musical works for which no authorship has yet been established. The program used generated a piece of music so that it is impossible to recognize who was the original author. Moreover, this project also does not have copyright protection.

      Thus, even at the supranational level, there are different positions on the issue of recognizing artificial intelligence as the author of a work that is protected by intellectual property rights. If we put the supranational assets, listed above, in chronological order, we can reverse the tendency to gradually expand the potential expansion of possible rights attached to artificial intelligence.

      In most cases, supranational regulations are of a recommendatory nature. That is why there is a need to address the national level of regulation of this issue in different countries. Why the next section of the article will be devoted?


    2. Regulation of the objects of intellectual property rights created by artificial intelligence in foreign countries (national

      level)

      Let’s briefly consider how the objects of intellectual property rights created with the help of artificial intelligence in foreign countries (at the national level) are regulated.

      Thus, in the United States, the Copyright Office will register an original copyrighted work if it was created by human. This position is in line with the law, which states that copyright protects only the object of intellectual work, the foundations of which are the creative abilities of the mind. This position is also supported by Australian legislators.

      Meanwhile, the US legal doctrine also has positions on the recognition

      of authorship by artificial intelligence. Hence, it is believed that artificial


      intelligence already has manifestations of cognitive processes, so it has a consciousness that is similar to humans. Comparing artificial intelligence with legal entities, some researchers believe that it is logical that artificial intelligence should also acquire legal personality (Yanisky-Ravid, 2017). In addition, artificial intelligence can create works under contract as a worker (work for hire). In this case, the author of the work will be the employer (Hristov, 2017).

      In Japan, it was decided to start developing regulations to protect copyright in creative products generated by artificial intelligence. This step is taken to support companies working to create and implement innovations.

      In the United Kingdom, the Copyright, Design and Patent Act (1988) states that in the case of a computer-generated literary, dramatic, musical, or artistic work, the author will be the person through whom the activities necessary to create the work are carried out. The same provisions are contained in the legislation of Hong Kong, South Africa, and New Zealand. The position that the originality of work (according to the legislation of most countries) is the result of the expression of the author’s personality opposes the position on the recognition of artificial intelligence as the author of the work. This criterion cannot yet be applied to artificial intelligence. Most copyright laws require the awareness of the creation. A machine does not have that conscience (Conversation on Intellectual Property (IP) and Artificial Intelligence (AI), 2019).

      In India, there is a basis for recognizing artificial intelligence as the author of a work. If we consider the case law, the position of the Indian courts is that creativity must be respected wherever it comes from, so artificial intelligence has the right to acknowledge authorship. Even taking into account the outdated norms of the law, the courts interpret these norms broadly and skilfully apply them to information technology. Indian courts note whether the creation of a work by artificial intelligence took place under human supervision, or whether artificial intelligence created it without human intervention. This is a key factor. Meanwhile, if we turn to the legal framework and adhere only to the law, then currently the author of the work can only be a person.

      Thus, the analysis of international legal regulation of the objects of intellectual property rights created by artificial intelligence shows that despite the short period of creation of this objects by works and other means of non-human origin, states (including international organizations legislate the regulation of such objects) taking into account the specifics of such objects and the legal traditions of the states themselves.


    3. Domestic (Ukrainian) regulation of intellectual property

issues

Article 41 of the Constitution of Ukraine (1996) stipulates that everyone has the right to own, use, and dispose of the results of their intellectual and creative activity.

According to Art. 420 of the Civil Code of Ukraine (2003), the objects of intellectual property rights include literary and artistic works; computer programs; data compilation (database); implementation; phonograms, videograms, broadcasts (programs) of broadcasting organizations; scientific discoveries; inventions, utility models, industrial designs; layout (topography) of integrated circuits; innovation proposals; plant varieties, animal breeds; commercial (brand) names, trademarks (signs for goods and services), geographical indications; trade secrets.

Objects of copyright in accordance with the Law of Ukraine “On Copyright and Related Rights”(1994: article 5) are works in the field of science, literature and art, namely: literary works of fiction, journalism, scientific, technical or other nature (books, brochures, articles, etc.); speeches, lectures, and other oral works; computer programs; databases; musical works with text and without; dramatic, musical-dramatic works, pantomimes, choreographic, and other works created for stage performance and their staging; audio- visual works; works of fine art; works of architecture, urban planning and landscape art; photographic works, including works made in a manner similar to photography; works of applied art, including works of decorative weaving, ceramics, carving, foundry, art glass, jewellery, etc.; illustrations, maps, plans, drawings, sketches, plastic works relating to geography, geology, topography, engineering, architecture and other areas of activity; stage adaptations of the works, and arrangements of folklore suitable for stage performance; derivative works; collections of works, collections of folklore, encyclopaedias and anthologies, collections of ordinary data, other compiled works, provided that they are the result of creative work on the selection, coordination or arrangement of content without infringing copyright on the works included in them as part; texts of translations for dubbing, sounding, subtitling in Ukrainian and other languages of foreign audio-visual works; other works.

The subjects of intellectual property rights are the creator (creators) of the object of intellectual property rights (author, performer, inventor, etc.) and other persons who own personal non-property and (or) property intellectual property rights (Civil Code of Ukraine, 2003: article 318).

That is, in Ukrainian law, the subject of intellectual property rights is the creator and other persons. It is stated that the creator is exclusively an individual. Legal entities under civil law cannot be creators, but they can become the primary subjects of intellectual property rights by law. Thus,


artificial intelligence under Ukrainian law cannot be a subject of intellectual property rights, and there is no legislative regulation on the issue of intellectual property rights created by artificial intelligence.


Conclusions

As a result of the study of international legal regulation of objects of intellectual property rights created by artificial intelligence, we came to the following conclusions:

  1. In the international community, the majority holds that rights to artificially created works can recognize by the owner of the computer program (usually large corporations), its developers, or users. That is, the main issue is not the recognition of authorship of artificial intelligence, but the legal definition of the person who will own the property rights to the object created by the program (as the financial component plays an important role in advancing further research in this area).

  2. In the case of defending the position on which artificial intelligence (robot) can be recognized as a subject of intellectual property rights, it should be borne in mind that artificial intelligence operates according to an algorithm and often generates new works as a result of processing and analysis of existing ones. In this case, to provide a work of legal protection, it is necessary to establish the criteria of originality in the newly created work.

  3. At present, there are developments in the regulation of international law of objects of intellectual property rights created by artificial intelligence. However, such developments are not applied by states due to conflicts and non-recognition by many foreign states of the legal personality of artificial intelligence, which leads to inconsistencies and lack of a unified approach to the recognition or non-recognition of artificial intelligence as a legal entity.

  4. Ukrainian legislation does not set the legal basis for the use of works created without human participation. Thus, the legislation of our state does not yet give grounds to recognize the authorship of intellectual property by artificial intelligence. However, given the discussion in the international arena of the status of robots, including the possibility of recognizing them as “electronic persons”, this situation may change in the near future.

Therefore, the research topic requires further research, namely a detailed analysis of bills and theoretical developments and doctrines on consolidating artificial intelligence at the legislative level and giving it legal personality, as well as litigation on the recognition of artificial intelligence as a subject of intellectual property rights.


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Vol.39 Nº 68


Esta revista fue editada en formato digital y publicada en enero de 2021, por el Fondo Editorial Serbiluz, Universidad del Zulia. Maracaibo-Venezuela


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