In the year-end summary, Vietnam Television (VTV) pointed out that 2023 was the “year of fake-authentic, authentic-fake” with the development of artificial intelligence (AI). Merriam-Webster, the most trusted dictionary in the United States, chose the word “Authentic” as the keyword for 2023. This phrase accurately reflected the global social situation in 2023 with significant technological advancements, especially in creating completed works with minimal effort through the assistance of AI.
Launched in late 2022, Chat GPT became the most widely covered application globally in 2023, as the majority of users worldwide had free access to this tool. In addition to Chat GPT, global technology developers continuously competed to provide AI-supported software for creating works.
Not limited to text, AI tools can now assist users in creating vibrant, colorful images, notably through the MidJourney application. At the end of 2023, Chat GPT also introduced a paid version that allowed users to create images with graphics almost indistinguishable from real photos.
2023 marked the year of AI technology, laying the foundation for rapid development in the new era from 2024 onwards. However, along with the benefits come new challenges, including clarifying the copyright protection for works created with AI support.
Scope of works created by artificial intelligence
Although not specifically defined in Vietnam and internationally, a work created by artificial intelligence is a product of algorithms capable of automatically generating literary, visual, or auditory works upon user request.
These applications are designed with the ability to analyze large amounts of data on the network or data input into the system over many years of development. They analyze the structure, content patterns, and produce works with the same structure and patterns but with completely independent content.
Once there is content for comparison and “learning,” these applications can create diverse and appealing works based on user requests. For example, Chat GPT provides users with a text content creation tool that is fast, entirely unique, and includes many features to make tasks more convenient.
However, being in the experimental stage, Chat GPT and other AI-supported tools still have many imperfections, with allegations of plagiarism, creation of non-authentic works, collection or production of falsified documents, etc.
International copyright ownership disputes
In February 2023, the United States Copyright Office made a groundbreaking announcement by rejecting the copyright registration for the graphic novel created by AI MidJourney, synthesized by the author Kris Kashtanova under the name “Zarya of the Dawn.”
Specifically, the US Copyright Office rejected the registration on the grounds that the work could not demonstrate the author’s creativity since it was entirely created by MidJourney without the author’s contribution.
The ruling of the US Copyright Office created a significant wave for the international community of modern authors pioneering the use of AI software. This decision became a major obstacle to the development and application of AI technologies in daily life.
To sustain the goal of utilizing AI in life and allow AI tools room for development, the leadership of MidJourney also stated its commitment to supporting Kris in registering the copyright for her work and providing similar support to other authors using their software.
However, while Kris’s struggle has not seen new developments, the US Copyright Office has issued a similar announcement for the second time, rejecting the copyright registration of author Jason M. Allen’s synthesized paintings using the AI Midjourney system.
Allen submitted the copyright registration for the work “Theater D’opera Spatial” in September 2022. In the registration description, Allen mentioned that he had to “make at least 624 edits and command inputs to get the first version of the image” using MidJourney and then edited it to create the final work through Adobe Photoshop.
With such effort and dedication, Allen successfully argued for his right to be granted copyright registration for his work.
In this rejection announcement, authors and creators of works created by AI received more detailed information about the reasons for the rejection from the US Copyright Office. Specifically, the US Copyright Office rejected the images in Allen’s registration based on the reason that these images had “more AI-generated components than components created or modified by humans.”
“Theater D’opera Spatial” at the United States Copyright Office.
This can be interpreted as, to obtain copyright registration in the United States, a work created with the support of artificial intelligence (AI) needs to surpass a certain percentage threshold of AI-generated components. For instance, if the acceptance threshold set by the US Copyright Office is 50/50, the human effort and contribution in the work must constitute at least 51% to qualify for registration.
However, proving that human effort exceeds this threshold will be another challenging task, requiring the registrant to actively document detailed evidence of the creative process, ideation, project execution, as well as necessary modifications to create the final work.
Regulations regarding copyright ownership for works created with the support of AI in Vietnam
In Vietnam, despite the technology AI becoming one of the invested and developed fields with notable achievements, applicable laws in Vietnam lack detailed legal provisions outlining policies and methods to address intellectual property protection issues for works created with AI support.
The latest amendment of the Intellectual Property Law of Vietnam in 2022, Law No. 07/2022/QH15 (“Intellectual Property Law 2022“), does not include provisions for protecting works created by AI as this trend gained significant momentum only in 2023.
The Intellectual Property Law 2022 only stipulates in Article 13, paragraphs 1 and 2 that only organizations, individuals, or humans are eligible to hold copyright, thereby excluding the possibility of recognizing AI tools as copyright owners.
The absence of specific regulations on artificial intelligence in an era where AI plays a dominant role poses many legal risks. Vietnam would lack a basis to resolve disputes related to AI, such as accusations of copyright infringement when a work created by AI is claimed to violate the copyright of another, or when a work created with AI support is accused of plagiarism, or when AI itself is the infringing party.
To build a legal system keeping pace with the development of artificial intelligence, in recent years, many countries have researched regulations to incorporate into their legal systems. They have also discussed issues and legal challenges related to copyright protection for works created using AI. These efforts aim to maximize the advantages AI brings to economic development, rather than being constrained by the growth rate of AI.
In Vietnam, according to the provisions of the Intellectual Property Law 2022, reviewing copyright protection for works created with the support of AI in Vietnam is currently limited to ownership of works created with AI support.
Specifically, Article 39, paragraph 2 of the Intellectual Property Law 2022 states: “Organizations, individuals entering into contracts with authors who create works are the owners of the rights specified in Article 20 and paragraph 3 of Article 19 of this Law, except as otherwise agreed.”
Accordingly, if there is no other agreement, civil transactions between users and AI applications are recognized as legal written transactions through electronic means under the definition in Article 1 of the Civil Code 2015, Law No. 91/2015/QH13. Users will have the right to “disclose the work or allow others to disclose the work” (Article 3, paragraph 19 of the Intellectual Property Law 2022) and all property rights specified in Article 20 of the Intellectual Property Law 2022.
From this perspective, users will have all property rights to do business and profit from the work created by AI applications like Chat GPT, as well as a part of moral rights, which is the right to disclose the work. Naming rights, authorship, and integrity protection of the work in moral rights will belong to the AI application or the organization developing that application.
Article 36 of the Intellectual Property Law 2022 stipulates that the copyright owner is an organization or individual holding one, some, or all of the property rights specified in Article 20 of this Law without the requirement to hold all moral rights. Therefore, in Vietnam, when holding property rights, users of AI applications to create final works have become copyright owners of those works, regardless of the degree of contribution between the registrant and the AI application.
This can be considered a significant difference in the method of examining copyright registration for works created with AI support in the United States. However, to affirm that Vietnamese authors can register copyright for these types of works or whether the registration takes into account the level of contribution between the registrant and the AI application, official decisions from the Vietnamese Copyright Office are still needed.
Contribution to Copyright Protection Trends for AI-Related Works in Vietnam
On the issue of Vietnam copyright registration for works created with the assistance of artificial intelligence (AI) in Vietnam, it can be identified that Vietnam needs to consider clarifying the limitations of works created with AI support in the next amendment of the Intellectual Property Law.
Firstly, it is essential to supplement limitations regarding the subject of intellectual property ownership.
Currently, Article 6 of the 2022 Intellectual Property Law states, “The subject of Intellectual Property Rights is the owner of Intellectual Property Rights or the organization, individual to whom the owner has transferred Intellectual Property Rights.”
This provision affirms the argument that artificial intelligence cannot be recognized as the subject of intellectual property rights because it is a product created by humans and not naturally born. However, the current regulation does not address the issue of AI being the creative entity behind protected works or registered products such as patents, utility designs, industrial designs, etc.
Currently, there is a notable case globally where individuals seek to register AI as the author/inventor (Dr. Thaler wants intellectual property offices of many countries to recognize DABUS – the AI he created – as the inventor for various inventions). While many countries support Dr. Thaler, some, including South Korea, New Zealand, Australia, and the European Union, have rejected his claims.
Notably, Dr. Thaler uses the service of many IP firms in each country to gain the knowledge and expertise of the IP lawyers who have had years of experience in IP in their respective countries. If Dr. Thaler and his team wants to seek protection in Vietnam, he would have asked for some Vietnam Intellectual property service providers.
Secondly, clarify the possibility of copyright registration for works created with AI assistance for the registrant.
Currently, many countries worldwide only consider the ‘object’ that creates the work and disregard any aspect related to the nature of the AI’s involvement. In Europe, the Copyright Law of the European Union explicitly states that any work protected by copyright must be closely associated with humans. AI is not recognized as a subject of protection in this region. This perspective was clarified by the European Patent Office’s decision in 2021 to reject recognizing DABUS as the inventor.
Vietnam currently shares a similar perspective with most countries globally, acknowledging that copyright can only be protected for works created by humans, not artificial intelligence. However, considering the rapid development of AI and its creative and self-developing abilities in the era of 4.0 Industry Revolution, Vietnam may need to reconsider its stance, introduce suitable adjustments, and expand or specify the current scope of protection to keep pace with or lead global trends.
Regarding protection and copyright registration for works created with AI assistance, Vietnam also needs to consider establishing an appropriate evaluation mechanism. As this is a new concept without precedence globally, it is an issue that Vietnam needs to study and enact regulations suitable for its social context.
However, to ensure that works with artistic trends created by modern science with AI support can continue to thrive—which is a natural trend—we should approach this issue by supporting the community of authors in this new era of modern art.
Thirdly, establish specific limits for copyright registration of works created with AI assistance.
If the trend of protecting copyright for works created with AI assistance is established and enforced, the next consideration should be setting specific limits on the contribution between the registrant and the AI software as a condition for registration.
For an AI application to create a work, the input data plays a crucial role. If the input data is user-generated, the copyright should be attributed to the application user, as the AI’s effort in completing the product may be insignificant.
If the input data is collected and synthesized by programmers over many years, as in the case of current AI applications like Chat GPT, a detailed assessment of a reasonable ratio between the effort of the user and the application needs to be considered.
For example, a ratio of 70/30 between the effort of the author and the AI software could be considered. However, as seen in cases in the United States, proving sufficient effort to meet this ratio could be a complex issue, potentially diminishing the motivation for protecting authors in this new era of scientific and artistic advancement.