关键词: 人工智能, 专利法, 著作权法, 挑战, 对策

Abstract:    The rapid development of artificial intelligence (AI), while is bringing convenience to human life and improving productivity, also gradually affecting the various existing social and economic conditions. Based on the advance of the technology of machine learning, the creativity of AI has gradually made it possible for AI to create and invent. Originated from the Industrial Revolution, the IP regime is designed to stimulate innovation and protect the intellectual achievements, and shall always keep up with times in order to follow the process of technology.
    This article explores the degree of adaptability of the important aspects of the patent and copyright systems such as the objects of protection, qualification of the right holder, ownership of patent or copyright, judgment of infringement, and subjects of liability, in a new AI era when AI algorithms independently make inventions and create literary and artistic works based on their deep learning ability. Based on the exploration above, several conclusions are drawn, including (a) the present IP regime shall be designed to show an optimistic and encouraging attitude towards the inventions and creations by AI, excluding inappropriate subject matters, while the examination or authorization standard of the inventions and creations by AI shall differ from those by human, which means a special criteria including novelty standard, inventiveness standard as well as practical applicability for AI created inventions in the field of patent, and when AI plays the role of author in the creative process as well as the final work fulfils the requirement of originality and replicability in the field of copyright; (b) at present the rightsholder of AI inventions or creations shall be relevant natural person or legal entity, e.g. programmer or the owner of AI, rather than AI itself, and when the "Strong AI era" comes, we cannot deny the possibility for AI to have the legal status of inventor or author; (c) due to the complex implementing process of patent, indirect patent infringement as well as "induced infringement" shall also be defined as a kind of infringement and bear relative liability in the field of AI inventions; and (d) a specialized Registration-Authorization system for AI works shall be taken into consideration, as well as taking the AI artwork as a kind of derivative work in order to make an adjudgment of copyright infringement.
    More increasingly, this article explores the role of the patent and the copyright law system as to the extent that they accord with the principle of fairness, both for the current "Weak AI era" and the future "Strong AI era". Based on case studies, this article analyses a series of challenges brought by the development of AI technology to the current patent law and copyright law, try to suggest some possible solutions, including (a) the solution of "public property", which means AI created inventions or works should belong to the public and could be used by everyone free of charge in "Strong AI era"; (b) "the right of data processor" as a novel neighboring right, which means "the right of data processor" should be enjoyed by the owner of the right to use the program or equipment that generates the data, which functions as the key element in the application of AI technologies; (c) Sui Generis rights for AI created inventions or works as a transitional plan when the "Strong AI era" just comes and the legal status of AI are not fully accepted by the society then; and (d) changing the regulations on primary rights in patent and copyright law, e.g. protection period, etc.
    From the practical point of view, the research in this paper provides systematic suggestions on IP regime for present "weak AI era", as well as in the future "strong AI era".

Key words: artificial intelligence, patent law, copyright law, challenges, countermeasures