Thinking about the Originality of Artificial Intelligence Works in the Perspective of Legal Philosophy

Disputes Over the Determination of the Originality of AI-generated Objects

There is a lot of controversy in the academic circles as to whether artificial intelligence-generated objects have works in the sense of copyright law. In my country, the subject of copyright must be a human being, because artificial intelligence is not a human being and cannot be called the subject of copyright, so the resulting object cannot be called a work regardless of whether it has the existing attributes of a work or not. In this way, the relevant discussion has to end here. . But the reality is that the AI industry is developing rapidly, and whether AI products should be protected has become a key issue affecting the development of the industry. In order to avoid logical loops and allow problem solving to proceed normally, most scholars discuss this issue, did not include the main factor, but directly focused on the product itself, and only used objective criteria to judge whether the process and result of the production had the characteristics of originality and reproducibility that the work should have.

Many scholars believe that the embodiment of “originality” lies in the fact that the work originates from the author’s independent and individual creation, bears the unique brand of his ingenuity, and is the product of the author’s spirit and consciousness. The “learning” ability of artificial intelligence only means that programs with artificial intelligence can find out more specific and detailed laws in things by analyzing a large amount of data, and find unique or extremely limited ones from countless possibilities. Correct path.1 Legal Science (Journal of Northwest University of Political Science and Law), 2017, 35(05): 148-155.]] Although the artificial intelligence created only in terms of form, these works can already reach the degree of originality required by the copyright law, but these works are not essentially the expression of thoughts or emotions, and are not the product of intellectual labor. They only constitute a kind of analysis and selection through algorithms. The completed mechanical output is still a kind of machinery.2 Some scholars have the exact opposite view, arguing that despite the limited expressive skills of robotic manuscripts, they can still be regarded as works within the meaning of copyright law. As long as the content generated by artificial intelligence is independently completed by a robot, it constitutes a work protected by copyright, regardless of its use, value and social evaluation.3 Some scholars pointed out that the reference object of copyright law The transition from the author’s right law system to the copyright law system means the transition from author-centrism to work-centrism. Whether an artificial intelligence creation constitutes a work mainly depends on whether the creation result meets the requirements of originality, rather than whether the creation embodies a relatively abstract human will or personality. This can weaken the requirement that the originality of the creation must come from the human author, thereby alleviating the conceptual barrier formed by the personality theory for the copyrightability of the creation.4

1 Wang Q. On the qualitative nature of the content generated by artificial intelligence in copyright law.

2 Cao Y (2016) The rationality of copyright protection for artificial intelligence creations. Science and Technology and Law 3: 488-508.

3 Wu H (2017) Institutional Arrangement and Legal Regulation in the Age of Artificial Intelligence [J]. Legal Science Journal of Northwest University of Political Science and Law 35(5): 128-136.

4 Liu Q (2019) The theoretical challenge and response of artificial intelligence to the intellectual property system. Law Forum 34(06): 95-106.

Expansion of the Subject Scope of “Original”

Today, we are in the information revolution period with the rapid development of computer science and technology. With the support of big data and artificial intelligence technology, computer systems can analyze the characteristics and laws of existing works according to their established programs and algorithms, and generate works that are almost the same as human works, in the broad sense of “work”. my country’s Copyright Law stipulates that the subject of copyright refers to a natural person, legal person or other organization that enjoys copyright in literary, artistic and scientific works according to law. Under this definition, the subject of copyright is limited to the category of human beings. However, at a practical level, computer artificial intelligence has undeniably become the direct creator of works, the subject of copyright rights has become a vacuum, and the scope of legal protection also naturally excludes works generated by artificial intelligence, resulting in artificial intelligence works being infringed. It has happened: For example, Tencent has developed computer software called Dreamwriter, which can automatically generate articles through the four links of data service, trigger writing, intelligent verification and intelligent distribution. On August 20, 2018, Tencent Securities website published it for the first time. He published a financial report article titled “Afternoon Review: The Shanghai Stock Exchange Index Slightly Up 0.11% to 2671.93 Points, with Communication Operations, Oil Exploration and Other Sectors Leading the Gains”, and noted at the end that “This article was automatically written by Tencent Robot Dreamwriter”. On the same day, a website called “Internet Loan Home” also published a financial report article with the exact same title and content as the article, which was brought to court by Tencent on the grounds of infringement.

“Prohibition of abuse of rights” is a basic civil norm, and it is the basic principle of civil and commercial activities not to infringe on the rights of others. However, rights violations have occurred in cases like the above. Obviously, this is contrary to the basic principles of civil law, and artificial intelligence works are also therefore, a legal response is required, and it cannot become a place outside the law. However, the infringed “other” is not a natural or legal person as stipulated in my country’s civil law, but a computer software or an artificial intelligence program. Can artificial intelligence become the subject of the work?

Chinese “Civil Code”, which came into effect on January 1, 2021, does not recognize natural persons, legal persons and other civil subjects other than unincorporated organizations. Based on the current law-making principles, it is difficult for computers or artificial intelligence programs to become new subjects of civil rights. . Referring to the legal person system for non-natural life forms in the Civil Code of our country, it stipulates the capacity for civil rights and capacity for civil conduct of a legal person, which arises from the establishment of a legal person and disappears when the legal person terminates. So at the specific computer application level, it is difficult to prove when the computer is “established” and “terminated” and whether the computer has civil capacity. In addition, my country’s Civil Code also stipulates that a legal person shall independently bear civil liability with all its property, while computer artificial intelligence has no other property other than its own to bear responsibility. In other words, the significance of determining the civil subject is that the subject can bear certain legal responsibility for its own infringement and violations, and can punish the infringer itself under the assumption of a rational person, while artificial intelligence is just a large number of unconscious programs and codes, not Under rational assumptions, it cannot bear punishment, and its punishment does not have any real pain and effect at all. Therefore, the current subject investigation of the originality of works should still focus on traditional civil subjects, and only discuss the originality protection of works without considering artificial intelligence as a civil subject for the time being.

Expansion of the Definition Standard of “Original”

The so-called originality refers to the attribute of the work independently conceived. my country’s Copyright Law stipulates that as long as the work is independently created by the author, in other words, as long as it is not plagiarism, plagiarism or tampering with other people’s works, or simply copying and pasting numbers, words, etc., even if the creativity and novelty of the work are low, its originality is still. should be acknowledged. Generally speaking, the protection of originality in civil law countries is usually higher than that in common law countries. my country, which attaches great importance to private rights, has relatively adequate protection of copyright, but it seems that there is still a lack of courage in the protection of artificial intelligence generated objects. The world’s leading theoretical courage and practical ability.

The essence of copyright is the subjective expression of the copyright owner himself to the objective world. It is undeniable that due to the limitations of time, industry, experience, ideas, etc., each person’s understanding of things will be different, which is accompanied by the way the works are presented. They are not the same, but it is these personalized expressions that make the world more colorful and create a more diverse and inclusive creative environment. Creation is the result of the combined effect of logical thinking and intuitive thinking, and AI creation is no exception. As far as the current technical level is concerned, most of the works generated by artificial intelligence are generated by computer programmers who input, analyze, and imitate the works created by humans according to specific needs and purposes. Each has its own characteristics, which can be understood to a certain extent as a computer program maker expressing a subjective understanding of the world by leading the running process of the computer program. That is to say, the computer itself does not generate any content, and the content behind the generated content must be grasped and manipulated by humans, which not only requires human intellectual labor in programming and algorithm operation, but also reflects human thought and consciousness. . For example, for a case with a clear and simple legal relationship and no other disputes, a judge can input the main facts of the case and the application of the law, and a computer program can generate a judgment; a reporter can input the time, place, relationship between the main characters and events, and the artificial intelligence can quickly Generate a news release network; poets can formulate keywords and styles, and artificial intelligence creates poetry collections; composers only determine the main theme of the music, and artificial intelligence creates music works with different rhythms, different styles, and even different instruments. Therefore, as an extension of human thought and labor, all artificial intelligence works that can expand human knowledge and transform the world should also be protected. Of course, it is necessary to exclude the works generated by computers according to the unconscious and mechanized arrangement and combination of the required elements. In this way, on the one hand, it saves human time and energy and improves the efficiency of work or creation; on the other hand, it further proves that the works generated by artificial intelligence contain the subjective consciousness of human beings, and their works have certain originality.

Thinking of Humanistic Theory

Man in the modern sense, as a social animal evolved from natural man, is the result of development and evolution under the survival of the fittest and collective cooperation in nature. Xunzi believed that, as a natural person, “hungry desires food, cold desires warmth, labor desires rest, loves profit and hates harm—this is what people are born and have, and what happens without waiting, is what Yu Jie lived in. the same.” As a social person, Xunzi believes that “the reason why people are people is not because they have two feet and no hair, but because they have arguments.”5 Therefore, in Xunzi’s view, the ability to think is a direct manifestation of human beings. Kant in the Western context also believes that “rationality is the most essential difference between human beings and objects. Things without reason only have a relative value and a means, and rational people are the goal.”6 As far as creation is concerned, creation is conscious Activity, creation is intentional activity. Rabbinical proverbs have a very delicate exposition on the act of creation - Mind is like a volatile essence, flitting hither thither, an active, versatile agent, untiring in the principle of energy It flies around; it is active and versatile; it does not tire under the energy principle). Edmund Burke once said, “Wisdom cannot create materials, materials are gifts of nature or chance, and the pride of wisdom is to use them.”7 Therefore As an intellectual achievement, human works are the objectification of individual spiritual activities, the embodiment of the creator’s free will in the field of literature, art and technology, and condense the creator’s wisdom, thought, spirit and emotion.

Law belongs to the superstructure produced by the development of human society to a certain stage, it is the direct expression of human free will and active consciousness, and it is the basic principle to protect human and its surrounding related interests. As the smallest unit of a social organization, as the executor and promoter of social operations, human beings are the basis for legal protection, and intellectual property law is also the protection of creator’s personal dignity, ideas and economic interests. Looking back at the use of modern computer technology and unconscious artificial intelligence, of course, it is not a natural person, without natural desire, and without the possibility of self- recognition. To protect it as the subject of legal protection is fundamentally contrary to the existence of human society.

5 Xun K (2018) “Xunzi·Neixiang Pian”. Beijing, Zhonghua Book Company, 2018 edition, 83.

6 Li Y, Li Xi (2018) Discussion on the Copyright of Artificial Intelligence Generated Objects from the Perspective of Kant’s Philosophy. Law Journal 39(09): 43-54.

7 Hayek (2009)”Harvard Family Teaching: Ⅰ Life-changing Wisdom”. Shaanxi Normal University Press Compilation Group, Xi’an, Shaanxi Normal University Press, 132.

The premise is that there are huge obstacles. As for the issue of how to protect artificial intelligence generated objects, if the same protection method as human works is adopted, it will inevitably fall into a logical misunderstanding that is difficult to self-consistent. Therefore, in the face of artificial intelligence as a new thing, human beings should hold a strict and prudent attitude, respect the basic principles of human society, maintain the relative stability of the legal system infrastructure, and cannot regard artificial intelligence as a legal subject with the same status as human beings . Otherwise, there would be what Hayek once said: “While we do our best to consciously create our future according to some lofty ideals, we are actually unknowingly creating something that is the exact opposite of what we have been striving for. Can people imagine a greater tragedy than this?”8

The Religion’s Reflection of Humanistic Philosophy

In the Old Testament of the Bible, regarding the nature of wisdom, it is considered that wisdom is “the practical knowledge of the laws of life and the world based on experience”, or “a series of thoughts or an attitude of life”, or “innate intelligence”, etc. Regarding the origin of wisdom, it is believed that wisdom comes from “seeking understanding of the self in terms of relationships”, or from “trying to discover the order of human life”.9 According to the Christian classic “Bible”, “all knowledge and wisdom belong to God”. So if you want to gain wisdom, you must first fear God. “Having wisdom has naturally become a process of communicating with God, asking for God, and God bestowing on human beings.” Under piety, God will give wisdom to his followers and believers in the form of “spirit”.10 The pursuit of knowledge is equally actively valued in Christianity. Throughout the Bible, whether in the Old Testament or the New Testament, the role and value of knowledge is affirmed. Regarding the role of knowledge, for individuals, knowledge makes manpower stronger, knowledge saves people from suffering and death; for countries and societies, knowledge makes a country prosperous and its fortune lasts for a long time.

To sum up, from the perspective of Western Christianity, all knowledge and wisdom come from God. As the carrier of wisdom, human beings can only explore as much as possible the wisdom that God has given or not given, but it

8 Hayek (1997) “The Road to Serfdom”. 2nd (Edn.), Wang Mingyi and Feng Xingyuan (Trans.), Beijing, China Social Sciences Press, 177.

9 Walton, Matthews, Chavaras (2013) “Annotation on the Background of the Old Testament”. Li Yongming, Xu Chengde, Huang Fenghao, Beijing, Central Compilation and Translation Publishing House, pp: 35.

10 Feng X (2010) The Bible (New Chinese Version) The New Testament (Annotated Version). Chinese Taipei, International Chinese Bible Publishing House, pp: 373-375.

is impossible to exhaust them. As the Jewish saying goes: “When man thinks, God laughs”. Regarding the attitude of knowledge and wisdom, the attitude that human beings uphold is and should be the spirit of “Nous”, to promote the subjectivity of people11, we cannot and should not allow machines to have the same status as humans, and avoid breaking through the bottom line of morality to materialize and degrade human beings.

It is the Nature of People and Society to Seek Advantages and Avoid Disadvantages

The world is hilarious, all come for profit. Society operates under the mechanism of “energy as the gravitational force and human desire as the driving force”. As a member of society, human beings have social attributes and must conform to the evolutionary theory and economics principle of “seeking benefits and avoiding disadvantages”. And justifiably pursue profit. Benefit, originally refers to interest, “benefit” in a broad interpretation includes economic and social interests, and intellectual products represented by works also naturally contain potential economic and social values. The essence of the intellectual property legal system can be regarded as encouraging creators to continue to create on the basis of protecting the economic and social benefits of creators.

The world has developed to contemporary civilization, and the progress of production tools has brought about a great revolution in the form of human labor. Labor is no longer agricultural production of gathering and hunting in the narrow sense. From tangible industrial production to today’s big data and virtual technology, the contribution of computers is increasing. come bigger. As one of the industries with the most development potential, artificial intelligence cannot be ignored. In the “China Artificial Intelligence Industry Research Report (2020)” released by the iResearch Institute, it is mentioned that the economic growth of the artificial intelligence industry in 2020 The scale has exceeded 150 billion yuan, and artificial intelligence has widely appeared in all aspects that determine the economic benefits of enterprises, promoting the efficiency change and kinetic energy conversion of traditional industries. Although economic interests are not necessarily all motivations for people to carry out creative activities and innovative behaviors, economic interests can indeed play a certain role in promoting and stimulating. To solve the dilemma faced by artificial intelligence in intellectual property law, and to protect artificial intelligence products to an appropriate degree, in the understanding of

11 Long W (2018) Legal Philosophy Thinking on the Status of Artificial Intelligence Legal Subject. Law Science (Journal of Northwest University of Political Science and Law), 36(05): 24-31.

human nature, it is like “adding the oil of interest to the fire of genius”, which makes the relationship between relevant rights subjects. The distribution of interests tends to be clear and reasonable, which can not only stimulate the progress of artificial intelligence technology, but also encourage people to devote themselves to the large industrial chain of artificial intelligence, thereby providing legal support for improving the comprehensive strength of artificial intelligence in my country.