VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW GRADUATION THESIS COPYRIGHT PROTECTION FOR AI-GENERATED WORKS Le Hong Linh - K63CLC - 18062015 Supervisor: Dr. Nguyen Bich Thao CIVIL LAW DEPARTMENT HANOI, 2022 ACKNOWLEDGEMENT During four years in Vietnam National University, School of Law, I am lucky enough to be exposed to many opportunities to enhance myself. I would like to express my gratitude to the School of Law for providing me with a professional academic environment. My appreciation toward all the professors who are very passionate and willing to share their knowledge.
You help shape me into who I am today. Finally, my heartfelt thank you to Doctor Nguyen Bich Thao for being a very supportive and devoted supervisor. I have received so much encouragement and instruction from you which is a compass to guide me. PLEDGE I declare that this thesis is my own research work, and I have not plagiarized, fabricated, used a false identity or committed any other offense against research ethics when writing.
Le Hong Linh TABLE OF CONTENTS INTRODUCTION. Significance of the Research. Objective of the Research. Structure of the Thesis.
6 CHAPTER 1: OVERVIEW OF COPYRIGHT LAW. The history of Copyright law. The purpose of Copyright law. The conditions for copyright protection.
Type of works. Scope of protection. Term of protection. Exceptions and limitations.
19 CHAPTER 2: AI-GENERATED WORKS AND ITS CHALLENGES TO CURRENT COPYRIGHT LAW. Definition of Artificial Intelligence. The development history of AI. Concept of AI-generated works.
AI works as a tool. AI as co-creator. AI-generated works with little or no human interference. The concept of AI-generated work.
Challenges of AI-generated works to current copyright law. 32 CHAPTER 3: JUSTIFICATION FOR COPYRIGHT PROTECTION OF AI-GENERATED WORKS. Different approaches to protection over AI-generated works. No copyright protection.
Alternate protection regime. Advantages of providing copyright protection for AI-generated works. Encourage the technology development. Copyright law enhancement.
40 CHAPTER 4: RECOMMENDATIONS TO REVISE COPYRIGHT LAW IN ORDER TO ACCOMODATE AI-GENERATED WORKS. Revise the concept of originality. Revise the scope of rights to be granted to AI-generated works. Revise the concept of ownership.
The term of protection. Examples of Applicability of the recommendations in practice -. 53 ABBREVIATIONS AI Artificial Intelligence CDPA The Copyright, Designs and Patents Act 1988 CJEU The Court of Justice of the European Union EU European Union WIPO World Intellectual Property Organization INTRODUCTION 1. Significance of the Research Humanity always finds themselves eager to make everyday life become more convenient and efficient.
This motive encourages the technology to constantly advance. Another milestone in humanity history is marked with the introduction of Artificial Intelligence. AI has started to appear in various sectors, fulfilling multiple roles, and proving its indefinite potential. Novels and films like “I, Robot”, “Wall E” become a prophecy.
The one used to be some fictional creation now walks into life. From medical, healthcare, hospitality, now, this technology is even involved in the creativity sector, something that once a human only capacity is now turned into a process that can be carried out by a machine. The development of AI, however, comes with critical challenges for the law. Copyright law is an area that for so long has been reserved for humans as only humans are able to produce artworks.
Then, Artificial Intelligence came into the playground with various achievements with painting, music, poem and novel. This reality leads to a debate on the possibility for the works from machines to be protected under Intellectual Property law. At the moment, the question of whether the AI-generated work should be protected and if yes then what legal instrument is sufficient is still in need for more discussion and research, no legislation can claim to have provided any protection at all. Even the United Kingdoms, one of a few countries that have a regime to protect computer-generated works, is still facing a similar conundrum.
Because unlike computer’s works to which the protection can be granted to “the person by whom the arrangements necessary for the creation of the work are undertaken”,1 AI went further as there is nothing in the output work that can be contributed to the human at all. 1 The Copyright, Designs and Patents Act 1988 (CDPA). section 9(3) 1 As aforementioned, copyright was designated for human’s creation, this resulted in a number of uncertainties and difficulties in granting protection for AI’s creation, especially in terms of authorship and the concept of originality. This thesis focuses on examining the concept of Artificial Intelligence and Copyright law to understand the obstacles in the current legal regime.
It is then arguing in favor of granting copyright protection for AI-generated works as I believe such protection will raise investments and achieve technical and cultural progress in terms of promoting creativity and supporting innovation. International research The topic regarding protection for AI-generated works receives a great attention. However, the opinion in this matter remains divided and no approach has been considered to be the optimal one. Many scholars opined that AI, as well as any non-human creature, should not now or ever be considered for copyright protection as this is a concept that was established for humans and should be reserved for humans only.
Since 1970, Stephen Breyer has suggested to exempt works by computer from copyright protection2 and he restated himself later in 2011.3 He is against the argument that because the cost to produce work is higher than to copy it valid enough to grant protection. Patrick Zurth (2020) argued that copyright or any kind of protection will increase the number of new monopolies, which will not act in favor of fostering creativity. Moreover, another argument for this concern is the suppression of human creation as well as the inability of AI to be considered creative. 4 Others suggest for a different type of law to be introduced in order to 2 Breyer, S.
The uneasy case for copyright: a study of copyright in books, photocopies, and computer programs. A Look Back across Four Decades. Artificial Creativity? A Case against Copyright Protection for AI-Generated Works. UCLA JL & Tech.
2 protect AI’s works so it will not be necessary to accommodate the present copyright regime. Earlier, copyright law had faced the similar question with computer- generated works to which the suggestion can still be relevant in the current context like Samuelson (1985) advocated that users be given ownership of computer- generated works.5 Ramalho (2017) proposed a method that was compatible with both the public domain and "copyright" models.6 Another option presented by Bridy (2012) to use the concept of work-made-for-hire, reasoning that it will avoid the problem of “treating the programmer as the author-in-fact of works that are actually made by code”,7 and Pearlman (2018) has also taken into account the model of employment that can be applied to AI systems.8 Another option is to grant copyright protection for AI-generated work. Davies (2011) has taken into account that AI has a greater ability than a mere tool and it is also continuing to develop further.9 China shook the world and seems to be backing this notion with a recent decision that conferred copyright protection on an AI-written text.10 Nevertheless, the debate is still going on and no matter which option is prefered, it can always be altered as the AI technology is advancing rapidly. Vietnamese Research This topic is relatively new in Vietnam as it is not an immediate problem for the legal framework at the moment but it has gradually received attention from the scholars.
Bui Thi Hang Nga, Nguyen Thao Linh (2021) stated their opinion on granting legal personality for Artificial Intelligence as this will set the base to 5 Samuelson, P. Allocating ownership rights in computer-generated works. Will Robots Rule the (Artistic) World? A Proposed Model for the Legal Status of Creations by Artificial Intelligence Systems. Forthcoming in the Journal of Internet Law, 1-20.
Coding creativity: copyright and the artificially intelligent author. RECOGNIZING ARTIFICIAL INTELLIGENCE (AI) AS AUTHORS AND INVENTORS UNDER U. INTELLECTUAL PROPERTY LAW. Intellectual Property Law, 24(2), 1-7 9 Davies, C.
An evolutionary step in intellectual property rights–Artificial intelligence and intellectual property. Computer Law & Security Review, 27(6), 601- 619. 601, 617 10 Shenzhen Tencent Computer. Shanghai Yingxun Tech.
of Nanshan (Dist. Of Shenzhen) Dec. 24, 2019) (China), translated in 51 INT’L REV. 3 resolve legal relation that concern with AI, which includes intellectual property law relationship.11 Nguyen Thi Que Anh in a publication in 2022 pointed out the lack of regulations to govern AI in different aspects of private law: human interaction with artificial intelligence, issues of legal status of artificial intelligence, ethics and security, personal data, intellectual property rights, liability and inviolability to personal life.12 She also opined that there is a need to grant copyright protection for AI-generated works and suggested removing the requirement for human’s influence in the test for originality.13 Nguyen Luong Sy since 2018 has voiced his opinion on granting protection for AI-generated works.
He further made suggestions for Vietnamese legislation to make adaptation to accommodate computer’s creation with a preference over using employment relationships to allocate ownership to either the owner, the user or the developer.14 Vu Thi Hai Yen (2020) in her publication advocates for copyright protection over AI-generated works, reasoning that the protection will help affirm the potential of investing in AI for both investors and technology companies. Another reason is the inability to identify AI’s creation out of human’s work. She supports the idea introduced by CDPA of appointing “the person by whom the arrangements necessary for the creation of the work are undertaken” to be the author.15 This thesis will add on the table justifications to support protecting AI- generated work under copyright law and provide suggestions for copyright law to adapt. 11 Bui Thi Hang Nga, Nguyen Thao Linh (2021).
Xác lập tư cách pháp lý cho trí tuệ nhân tạo. Available at <http://lapphap.vn/Pages/tintuc/tinchitiet.aspx?tintucid=210863> 12 Nguyen Thi Que Anh (2022). Một số khía cạnh pháp lý trong lĩnh vực luật tư khi ứng dụng trí tuệ nhân tạo. Tạp chí Nghiên cứu Lập pháp số 22 (446), tháng 11/2021.
Available at <http://www.vn/Pages/tintuc/tinchitiet.aspx?tintucid=210966> 13 Vietnam National University, Law School, “Hội Thảo Khoa Học: Hoàn thiện dự thảo luật sửa đổi, bổ sung một số điều của Luật Sở hữu trí tuệ” (Vietnam National University, Law School, May 12, 2022) 14 Nguyen Luong Sy. Quyền tác giả đối với tác phẩm hình thành bởi trí tuệ nhân tạo. Tạp chí Pháp luật và Thực tiễn số 01/2018. 15 Vu Thi Hai Yen.
Bảo hộ quyền tác giả đối với tác phẩm được tạo ra bởi trí tuệ nhân tạo. Tạp chí Nhà nước và Pháp luật số tháng 03/2020. Objective of the Research Since protection for AI-generated works is currently a hot topic, and is in necessity for a conversation about the appropriateness of present solutions, as well as what copyright legislation needs to effectively regulate AI- generated works, the thesis attempts to contribute to the discussion from a theoretical viewpoint. The thesis will examine current copyright law as well as the condition of copyright protection to identify the current restraints that prevent works of AI to be protected.
It will then provide arguments for the need and the benefit of copyright protection and will suggest revision of copyright law to overcome the aforesaid challenges. Research questions In order to argue in favor of providing copyright protection for AI- generated works, I will attempt to answer three questions: - Do AI-generated works meet the conditions for copyright protection? - Why should AI-generated works be protected under copyright law? - How should copyright law protect AI-generated works? 5. Research Methods The thesis will mainly rely on traditional legal research (doctrinal research), using analysis, synthesis and comparative methods.