AI or Artificial Intelligence is artificial intelligence, this technology specializes in simulating human thoughts and knowledge acquisition processes for machines, especially computers and application software. With the remarkable development of AI in the past few years, it can be seen that AI is gradually taking over, affecting every corner of human occupations in general, especially in related fields to design. Related to this issue, a recently discussed question is whether using illustrations drawn by AI for commercial purposes is protected by copyright.
1. General concepts of AI and copyright
AI is the simulation of intelligent human processes using machines, especially computer systems. Specific applications of AI include expert systems, natural language processing, speech recognition, and machine vision. In the book “Artificial Intelligence A Modern Approach”, the authors analyzed 4 characteristic elements of AI, which are: (i) Thinking humanly; (ii) Thinking rationally; (iii) Acting humanly; Acting rationally. AI systems work by ingesting large amounts of labeled training data and, through a process of deep learning, analyzing the data to find correlations and patterns. Use these patterns to make predictions about future states. Simply put, AI is a product created by humans, intended to support and answer human questions.
Under Clause 2, Article 4 of the current Intellectual Property Law: “Copyright is the right of organizations and individuals to works they create or own.” Illustrations for commercial purposes are defined as works of applied art – one of the types protected by copyright according to Point g, Clause 1, Article 14 of the current Intellectual Property Law. According to Clause 8, Article 6 of the Intellectual Property Law: “A work of fine art applies to a work expressed by lines, colors, shapes, and layouts with useful features, which can be attached to a useful object. Useful, produced manually or industrially… Works of applied art are expressed in the form of artistic product designs that cannot be created easily by people with average knowledge in the field. respective area and does not include the external appearance of the product that is required to perform the product’s function.
2. Conditions for works to be protected by copyright
Since its recognition, the purpose of copyright has been to protect the author’s rights and interests toward his “brainchild”. In the spirit of the Bern Convention – the oldest international copyright convention, there is a list without limitation of “literary and artistic works” regardless of form and method of expression. Based on the Berne Convention, Vietnam also stipulates in Clause 7, Article 4 of the Vietnam Intellectual Property Law the concept of “work” as a “creative product in the fields of literature, art, and science expressed in by any means or form”.
First of all, the work must be expressed in a certain form. The law recognizes that copyright is only established when the work is created and expressed in a certain material form such as audio recording, video recording, rewriting, reading, etc. Therefore, if a creative result is only an idea in the author’s mind and has not been expressed externally in a material form, it cannot be considered a work protected by copyright.
Next is that the work must be the result of spiritual creative activity. To be protected by copyright, a work must be based on the process of thinking, learning, creating, and reflecting the thoughts and feelings of the creator. In other words, the work must be a creative product with the author’s content and spirit.
And finally, the work must be original. This requires that the work be independently and directly created by the author without being copied from another subject. Originality does not require the work to have high content value or unique artistic quality, but it does require creating the author’s mark through the content or form of expression of the work.
3. Related legal issues
3.1. Are illustrations drawn by AI for commercial purposes protected by copyright?
Commercial purpose is behavior intended to generate economic or other benefits. Today, AI can produce literary and artistic works that truly surprise and inspire us.
A typical example is: On October 3, famous manhwa (Korean comic) artist Kim Jung Gi – who is known for his style of drawing comics with a brush and the ability to improvise from memory without needing to sketch – passed away at the age of 47. Painters and graphic artists around the world mourned and at the same time honored him as a great source of creative inspiration in the community. Just a few days later, a French game designer used Jung Gi’s works as input for an AI model. He quickly shared his entire project via Twitter account @5you, meaning anyone can use this AI to turn their ideas into works with drawings identical to Jung Gi in just a few clicks. click.
According to the law on copyright protection conditions, a work must meet the requirements of creativity, or bear the mark of its author. First, to create a work, humans and AI both need material sources. Specifically: for humans, this source of material is the vocabulary, social culture, themes, chords in music, and human knowledge; As for AI, it is a data warehouse that technologists enter into information storage. Second, the work will need expression tools, such as language, sound, images, colors,… and is often associated with the materials that carry it, such as fabric, drawing paper, and sound discs. ; or sound waves, electromagnetic waves, etc. The difference is that humans are chosen to convey the work, while AI will be performed by computers. Third, the work will bear the personal imprint of the subject who created it. Personal impressions can be the author’s own emotions, thoughts, feelings, analysis, and opinions to make the work unique and original. With AI, based on the data warehouse, the programmer puts in parameters and algorithms and from there the AI can synthesize and produce the result as a work.
Therefore, in essence, it can be seen that works created by AI are similar to works created by humans. Therefore, works created by humans or created by AI can meet the conditions for the protection of work. If we rely on published AI products, we see that these works also bring content and artistic value to humanity.
3.2. In case an illustration drawn by AI for commercial purposes is protected by copyright, who is the copyright owner?
Currently, there are still many opinions regarding the copyright owner of illustrations drawn by AI because currently, Vietnamese law has not yet regulated this issue. Therefore, currently, there are three different views as follows:
- The first view is that AI is considered the owner for the following reasons:
According to this perspective, with just a few mouse clicks, AI can automatically synthesize information from many different sources, and then create an illustration suitable for the user, rather than relying on intelligence or knowledge of user consciousness.
Furthermore, according to Clause 1, Article 13 of the Consolidated Document of the Intellectual Property Law, it is stipulated: “Organizations and individuals whose works are protected by copyright include those who directly create the works…” Therefore, AI is considered the copyright owner of the works they create.
- The second view is that AI is not the owner for the following reasons:
First, the AI provides illustrations after the user places an order – it cannot proactively create the work.
Next, between users and these platforms, a civil transaction is established (whether the user spends money or uses it for free) whereby the user is given ownership of the resources available on the system AI data system. Users here have the right to request AI to publish any work of the user. According to Clause 2, Article 39 of the Consolidation Document of the Intellectual Property Law: “Organizations and individuals that enter into contracts with authors who create works are the owners of the rights specified in Article 20 and Clause 3, Article 19 of this Law this law”. Therefore, people who use AI to create illustrations can be recognized as copyright owners.
- The third view is that both the AI and the user are identified as co-owners of the copyright in the work created by the AI. If AI is considered the author who creates the illustration, then by being granted permission to use AI’s available functions, the user is the party that hired the AI to create the work. Here, AI will have moral rights, including the right to name the work, be the author’s name when the work is published, and protect the integrity of the work created by AI itself; and users have property rights such as the right to perform the work in public, copy the work, distribute and rent the work.
Answering the question of copyright ownership of AI-generated content is not simple and needs to be considered carefully. Does creative content produced by machines need intellectual property laws and international conventions? Because AI does not have an independent personality and does not have the status of “author” as in the standards of copyright law. Designers, developers, and users of AI tools are the copyright owners of AI-generated content. However, the legal nature of AI works is currently unclear.
Above is the article: “Is using illustrations drawn by AI for commercial purposes protected by copyright?”. Hope this article will help you.
