适应人工智能快速发展的知识产权制度研究

基于深度学习算法的进步，人工智能逐渐有能力独立进行发明创造和文艺作品创作。本文主要探讨现行专利及著作权制度中规定的保护对象、权利人资格、专利及著作权的权属、侵权判定、侵权责任主体等对人工智能技术快速发展的适应及协调程度，研究指出：现有的专利和版权制度应当对人工智能的发明和作品持鼓励的态度，在排除不适宜作为专利或著作权保护对象的同时，人工智能的发明或作品的权利授予标准应当与人类的有所区分；相关权利人仍须对应自然人或法人，而非人工智能本身；相关专利侵权行为应包括间接侵权，同时应对人工智能作品安排“登记-授权”的著作权制度、参考临摹作品为人工智能绘画作品提供相应的授权使用制度等。本文还探讨了当前的专利法及著作权法在人工智能时代符合公平原则的程度，并提出解决方案：在“强人工智能时代”将人工智能的发明创造或作品作为公共财产，授予相应的开发者“数据处理权”作为一种新的邻接权，赋予人工智能创造物新的特别权利（Sui Generis），修改专利法与著作权法中关于主要权利的相关规定等。

A study of the intellectual property regime adapted to the rapid development of artificial intelligence

   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".