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Artificial Intelligence - Legal Implications On Vietnam's Intellectual Property
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International Conference on
Business and Finance 2021
CONFERENCE PROCEEDINGS
International Conference on
Business and Finance 2021
ICBF 2021
University of Economics Ho Chi Minh City, Vietnam
Artificial Intelligence - Legal Implications On Vietnam's Intellectual Property Rights
a
Le Huu Nghiaa, Pham Thi Ha Mya,
School of Law of University of Economics Ho Chi Minh City
Abstract
Advanced technical technologies are applied in the fourth industrial revolution has had a significant impact
on social and legal relationships, including artificial intelligence technology. Therefore, Vietnam's intellectual
property law needs to be identifed and determined the entities involved in the creation, operation and training of
AI technology in order to determine the relevant intellectual property rights for each subject as well as clearly
identify who is responsible for the infringement when the product is created from the patented AI technology
but infringes on other intellectual property rights from the cases and proposals are shown in this research.
Key words: artificial intelligence, intellectual property rights, infringement
JEL codes: O34, O57, K11, O31
Introduction
The Fourth Industrial Revolution is taking place on a global scale along with the remarkable and continuous
development of science and technology, which is applied in every aspect of life, economy and politics. Advanced
technical technologies are created and they have made significant impacts on social and legal relationships.
Artificial intelligence is also one of them. Due to the innovativeness and unpredictability of artificial intelligence
technology, the use of this technology in reality has raised many legal issues for the legal system in general and
the intellectual property law of each country. Especially, Vietnam is still a developing country which needs to
expand trade and acquire technology transfer from developed countries.
There has been many studies on the legal issues posed for intellectual property law with the subject is artificial
intelligence such as Eran Kahana (2012), Jason Lohr (2016), Ravid & Liu (2017)... However, the research on
this subject is still uncommon due to the limited application of scientific and technical technologies of the fourth
industrial revolution (including artificial intelligence technology) in economy and society in Vietnam. Therefore,
"Artificial intelligence (AI) - legal implications on Vietnam's intellectual property rights" is a radical content of
reseach in order to support changes and improvements on the intellectual property laws of Vietnam.
Theoretical Foundation And Research Methodology
Artificial intelligence, technological characteristics, applications and impacts of artificial intelligence on legal
relationships
Definition, characteristic and application of AI technology
• Definition
Artificial Intelligence (AI) technology is one of the innovative technologies which is widely applied in the
4.0 industrial revolution. However, the term definition varies depending on the field of application. According
to Nils J Nilsson (2010), “a cross-disciplinary approach to understanding, modelling, and replicating
intelligence and cognitive processes by invoking various computational, mathematical, logical, mechanical, and
even biological principles and devices".
While Pham Tho Hoan and Pham Thi Anh Le (2011) defined that “Artificial intelligence refers to the ability
of machines to perform tasks that are normally handled by human" .
To generalize and approach this concept in the simplest way, Xuan Hoan & Quynh Nga (2020) defined that
"Artificial intelligence refers to a machine system that operates based on programmed algorithms, has the ability
to perceive, speculate, and simulate experiences at a high level, and can replace human is solving complex tasks"
• Characteristics
According to Klaus Schwab (2016), from the existed situations which is considered the input data, AI can
learn and make decisions automatically, including predicting the future. The application of AI technology can
assist humans or easily perform automated decision-making process based on data and past experiences.
Therefore, AI has the following outstanding features (Pham Tho Hoan and Pham Thi Anh Le, 2011): (i) Ability
to have a surpassing cognition; (ii) Ability to develop and perfect itself; (iii) Ability to self-adapt, accumulate
and reproduce, simulate experience (including human experience); (iv) Make rational, data-driven and unbiased
decision (Klaus Schwab, 2016).
• Application of AI technology
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Artificial intelligence technology is widely applied in almost all fields such as daily life (autonomous driving
without driver), economy (credit risk management in banks), healthcare (nursing robots, medical examination
and treatment)… However, within the scope of this thesis, the author wants to approach some outstanding
applications of AI in the field of law under different practical perspectives.
According to Nguyen Van Quan (2019), AI is applied in providing legal services such as calculating the
probability related to court judgments and decisions; a platform to connect with legal professionals; resolving
non-procedural cases online; supporting electronic signature; validating documents (using blockchain
technology); visualizing complex data derived from Big Data; programming for smart contracts (Smart
Contracts)… In addition, Nguyen Van Quan (2019) also believes that AI can replace or support lawyer in
decision-making process (saving time during researching, screening documents as well as in-depth analysis of
documents, evidence, etc. related to the case) and the judge (partly and wholly automate the deliberative process
under the judge's control to protect human rights).
From the perspective of government administration, Xuan Hoan & Quynh Nga (2020) believe that AI are
intended to serve tasks such as: calculating and forecasting the probability and execution costs related to policies,
management decisions; archiving, systematizing and codifying legal documents…
The impact of AI on legal relationships
According to the research by Nguyen Van Quan (2019), Nguyen Viet Lam (2021), the application of AI will
affect legal relationships such as: (i) relationships among civil law, administrative law and procedural law; (ii)
legal relations in international relations such as foreign politics; security – military; economy - development.
Within the correlation of the above legal relationships, this research will focus on analyzing a number of legal
issues arising related to AI in intellectual property rights on the world and in Vietnam, revolving around the
following points:
(i)
For intellectual products created from AI, who can claim the moral rights, the economic rights, also
when a product is created from AI violates other intellectual property rights, which entity must be
responsible for that infringement?
(ii)
How does foreign laws solve the above problems and what are the lessons for Vietnam's Law on
intellectual property?
The theories of moral rights, the theories of immaterial property rights (monism)
Theories Of Moral Rights
According to Nguyen Van Nam (2016), author’s permissions have been around since the Renaissance
alongside printing and reproduction rights. This is also the basis for forming the theory of authors' intellectual
property rights, marked by the event that the UK was the first country to pass on the author's exclusive right to
reproduce their works in 1709. This recognition was marked by John Locke's "Labor theory of property" in
1690, in which he argued that human had an obvious right to claim the property over all their creations and this
is called a natural right. France officially claimed this natural right as natural property rights in literature and art
in 1791 and 1793.
Nguyen Van Nam (2016) commented on the theory of intellectual property rights that "This theory has not
properly honored the author's intellect, has not clearly distinguished between spiritual assets that are meaningful
to society and those that are meaningful to the individual author". From here as a basis, Nguyen Van Nam (2016)
formed the doctrine of moral rights that comes from the criticism of the illegal book printing by philosopher
Immanuel Kant in 1785. The content of the critique mentions the distinction between material rights (the book)
and the right to "the author's voice to the people" (content of the book) which was later called by Johann Caspar
Bluntschli "Copyright” (Autorreccht) in 1853. Accordingly, Johann Caspar Bluntschli proposed two basic rights:
(i) moral rights and (ii) economic rights.
The content of the theories of moral rights is essentially the protection of the author's personal rights. It does
not disappear until the author's own personal spiritual values no longer belong to that author's heirs. At this time,
moral rights belong to the nation and humanity.
The theories of immaterial property rights
The theories of immaterial property rights were founded based on the arguments of philosophers and jurists
including Fitchte, Hegel and Schopenhauer. Fitchte made his statement in 1973 regarding immaterial property
rights, he argued that for a book, the buyer was the owner of that book's surface but the content and ideas of that
255
book belonged to the author who created it. As for Hegel, his book "Philosophy of Law" was published in 1821,
he portrayed a similar opinion with Fitchte about copyright for their intellectual properties. Schopenhauer further
distinguishes between material property and intellectual property.
Thus, the theories of immaterial property rights is the copyright includes two inseparable rights: moral rights
and economic rights.
Research methodology
Research questions
Questions 1: What are the artificial intelligence technology and its application in the modern day, and how does
it affect legal relationships?
Question 2: For intellectual products created by AI, who has the moral rights and economic rights of those.
Furthermore, if an AI product violates other intellectual property rights, who must be responsible for the
infringement?
Question 3: How does foreign laws solve the above problems and what are the lessons for Vietnam's Law on
intellectual property?
Research methodology
By using analytical and compiling methods, collecting and combining data points from reliable sources of
such as scientific articles on Google scholar, online research journals, books, newspapers, relevant public and
transparent documents, this research determines the basic characteristics, applications of AI as well as the impact
of this technology on legal relationships. These methods are used to solve the problems of question number 1.
Analytical methods include inductive analysis and deductive analysis to clarify unresolved issues related to
AI such as: moral rights, economic rights, infringements of intellectual property rights. The one is used to solve
the problems of question number 2.
Using the comparation method, which compares and contrasts the Vietnam's Law on intellectual propertywith
foreign legal regulations in order to adjust and enforce it. These are the lessons for the promulgation and
application of laws which are AI-related. The one is used to solve the problems of question number 3.
Results And Discussion
Determining Moral Rights And Economic Rights For Intellectual Products Created From Ai
According to the Law on Intellectual Property of Vietnam, intellectual property rights means “rights of an
organization or individual to intellectual assets comprising copyright and copyright related rights, industrial
property rights and rights to plant varieties69”. In which,
(i)
Copyright means rights of an organization or individual to works which such organization or individual
created or owns70.
(ii)
Copyright related rights (hereinafter referred to as related rights) means rights of an organization or
individual to performances, audio and visual fixation, and broadcasts and satellite signals carrying
coded programmes71.
Thus, when an intellectual product is created from AI technology such as: a poem, painting, technical solution,
etc., if the conditions for intellectual property rights protection are satisfied, there is the matter raising whether
or not those objects are protected by intellectual property rights. If possible, which entity is recognized as having
moral and economic rights at that case? This is the issue that Bich Thao (2018) raised in related research.
In addition, Bich Thao (2018) raised another research question which is relevant and necessary to be clarified in
order to solve problems that the intellectual property law has not predicted yet related to AI technology: "The
protection of intellectual property rights for AI technology is questioning whether to contribute to achieving the
goal of encouraging creativity of intellectual property law if the creative objects is created by independent
artificial intelligence”.
To answer these questions, some matters will be analyzed base on the following aspects:
Firstly, Can AI technology be completely independent or combine with humans to create intellectual and creative
objects? The answer is “Yes”. According to Ravid & Liu (2017), the creation characteristics of AI technology
69
Clause 1, Article 4, Law on Intellectual Property of Vietnam 2005 and amendments and supplements.
Clause 2, Article 4, Law on Intellectual Property of Vietnam 2005 and amendments and supplements.
71
Clause 3, Article 4, Law on Intellectual Property of Vietnam 2005 and amendments and supplements.
70
256
are creative ability, unpredictable feature, independent and autonomous feature, rationality, capability of data
collection and communication, efficiency, accuracy and alternation.
So an intellectual product is created from AI technology, if it satisfies the conditions for intellectual property
rights protection, those objects can still be protected.
Figure 1: Statistics of a number of countries around the world that filed patent applications for AI-related
inventions to the World Intellectual Property Organization (WIPO) in 2019
Source: WIPO Technology Trends 2019 Artificial Intelligence
Secondly, there are some clear differences between copyright and industrial property rights. Among those
ones, the right of invention should be clarified (Bich Thao, 2018). The reason for the distinction between these
two rights is to draw conclusions about reasonable cases when moral rights and economic rights are recognized
for intellectual products created from AI technology. As follows:
Table 1: Analysis of industrial property rights arising from intellectual products created by AI technology
Copyright
Industrial property rights
Copyright includes: (i) moral rights
Industrial property rights means
and (ii) economic rights72.
rights of an organization or individual
In which, moral rights include the
to inventions, industrial designs,
following rights: give titles to their
designs of semi-conducting closed
works; attach their real names or
circuits, trade secrets, marks, trade
Feature
pseudonyms to their works, have their names and geographical indications
real names or pseudonyms
which such organization or individual
acknowledged when their works are
created or owns, and the right to
published or used; publish their works prevent unfair competition.74
or to authorize other persons to publish In which, inventions are protected
their works; protect the integrity of
exclusively75.
72
Article 18, Law on Intellectual Property 2005 and amendments and supplements.
Clause 4, Article 4, Law on Intellectual Property 2005 and amendments and supplements.
75
Article 58, Law on Intellectual Property 2005 and amendments and supplements.
74
257
Copyright
Industrial property rights
their works; and to forbid other
Thus, industrial property rights are
persons to modify, edit or distort their
emphasized about the monopoly of
works in whatever form, causing harm the owner of ones by the legislator.
to the honour and reputation of the
This demonstrates both the
author.73
encouragement of personal creators'
Thus, from the above characteristics,
creativity and the promotion of
we may recognize that the personal
inventions that are quickly revealed to
creative imprint of human is especially make benefit for society after giving
emphasized and valued by the
the invention ‘s owner a certain
legislator.
exclusive period.
Therefore, the product is not created
It is necessary to determine the
by humans but created by AI
product created from AI technology
technology, the protection of moral
in terms of invention rights,
Conclusion
rights is unnecessary because AI
ownership rights or economic rights.
operates automatically, without
encouragement.
However, there is another issue relating to intellectual products which are created (i) completely from AI
technology (self-learning and self-improvement, self-development) and ( ii) partially by human participation and
AI technology. For this case, what intellectual property rights should be protected?
According to Bich Thao (2018), there are currently no countries in the world that has anticipated this issue in
intellectual property law. However, Bich Thao (2018) has suggested a way to solve this problem based on the
principle that "in order to be considered an inventor or co-inventor, a person must make a significant intellectual
contribution to invention process”.
But this suggestion from Bích Thảo (2018) is only possible when clarifying the "significant" nature by both
qualitative and quantitative methods.
Determining who is responsible for the infringement when the product is created from AI technology and
protected but infringes other intellectual property rights
For this problem, there are currently no specific regulations for the legal systems of countries around the world
to determine who is responsible. However, in some reseaches by Bich Thao (2018), Eran Kahana (2012), Quynh
Hoa (2020) gave some following suggestions:
Base on Bich Thao (2018), the entities that have the closest relationship with direct and significant role in the
infringement of intellectual property rights are considered the infringer and then they must take the main
responsibility on their shoulders. Bich Thao (2018) cites the example of Jason Lohr (2016) to illustrate this
problem as follows: “Assume an artificial intelligence system created by company A, owned and operated by
company B, based on resources from company C, the artificial intelligence system is trained from data which
are provided by company D”.
Thus, in this case, company B is the most likely entity that is considered an infringer and company B may
take the main responsibility on its shoulders because it is the owner and operator of the artificial intelligence
system. However, Bich Thao (2018) also gave another result based on the intellectual property law related to
inventions in the United States of America. The identification of the infringing entity and responsibility based
on "the infringement can be direct or instigated actions and/or the actions which contribute to the
implementation of the infringement". Therefore, according to this principle, both companies A, C and D are
considered to be infringers and responsible. And so the direction of handling under the intellectual property law
related to inventions in the United States of America is more reasonable because there is a cause-and-effect
relationship.
According to Eran Kahana (2012), the proposal is made for further consideration related to the level of
development of AI. In particular, if the level of development, self-learning and improvement of AI technology
are automated completely without the participation of human in the working process, the responsibility can not
73
Article 19, Law on Intellectual Property 2005 and amendments and supplements.
258
be attributed to a specific person. That means A, B, C, D must not take the main responsibility on their shoulders
at this time.
However, this proposal is not reasonable. The entities involved in the formation and application ‘s processing
of AI technology in order to create intellectual products, they can take advantage of this "disclaimer" to evade
objective and subjective consequences caused in all cases for unforeseen reasons.
According to Quynh Hoa (2020), while there is no official legal framework to regulate the infringement of
AI technology, temporarily apply "principle of traditional liability of product, which means that manufacturers
will be held accountable” This proposal is not as reasonable as Bich Thao (2018) but better than Eran Kahana
(2012) and should be considered a temporary reasonable solution.
Conclusion
Thus, according to the above analysis, the countries around the world (Figure 1) have recognized the
protection of intellectual property rights for intellectual products from AI technology. Therefore, Vietnam's
intellectual property law should promptly amend and supplement the subjects and related rights arising from the
application of this technology.
Besides, Vietnam's intellectual property law needs to be identifed and determined the entities involved in the
creation, operation and training of AI technology in order to determine the relevant intellectual property rights
for each subject as well as clearly identify who is responsible for the infringement when the product is created
from the patented AI technology but infringes on other intellectual property rights from the cases and proposals
are shown in this research.
References
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Việt Nam”, Cách mạng công nghiệp lần thứ tư và những vấn đề đặt ra đối với cải cách Pháp luật Việt Nam, NXB
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Eran Kahana. (2012). “Intellectual Property Infringement by Artificial Intelligence Applications”. Available
online
at:
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