1、 The approach of artificial intelligence to the field of intellectual property

Human beings have entered the electronic age. The rapid development of electronic information technology has not only changed the way of human existence, but also changed human beings themselves. It has long been exclaimed that the powerful computing power of artificial intelligence can lead to the unemployment of a large number of industry personnel, such as manufacturing industry, credit officers, financial consultants, taxi drivers, etc., and robots will become the leading role. In the near future, the world of artificial intelligence will be the world. Not only the relatively simple operation and highly regulated professions listed above, but also the highly creative language creation field will enter. From the go war between alpha and human, artificial intelligence has gained self-confidence, so it has become active in the field of language and even literary and artistic creation. In 2016, Japanese scientists used artificial intelligence to create a number of novels, which were sent to participate in the competition, and finally won a good place; in 2017, Microsoft's artificial intelligence "Little Ice" robot formed its own style through deep learning of thousands of poems, and finally created the poetry anthology "sunshine lost the glass window"; in 2018, AI created the painting "Bellamy" Edmund Bellamy, the family's, sold for a sky high price of $432000 at Christie's; in 2019, Huawei's Noah Ark laboratory launched a new poetry writing AI "Yuefu", declaring that we have entered the era of artificial intelligence. In this way, the issue of intellectual property protection has been raised.

2、 Artificial intelligence products from the perspective of intellectual property

（1） The regulations of intellectual property on the subject of copyright creation

The existing intellectual property law is open to the internal requirements of the legal subject. The standards of the copyright law system and the copyright law system are loose, but they are the same in the basic principle. They all think that "the legal subject refers to the person who is active in the law, enjoys the rights, has the obligations and undertakes the responsibility". It has the "legal personality", has the right ability and the behavior ability, can exercise the right and undertake the obligation and the responsibility. The subject of law is the basis of legal concept. It defines the object of rights and obligations, expresses the basic goal of law and reflects the core value of law. At present, the content works generated by artificial intelligence do not conform to the above definition. Artificial intelligence is not a "legal person", and "non-human" subjects can be regarded as authors, which involves the innovation of legal subjects.

Law is developed and perfected in practice. The breakthrough of legal subject expansion is feasible in theory, but the following two principles should be followed.

One is the consideration of creating value. Intellectual property is a general term for the rights based on the created achievements and industrial and commercial marks. The intellectual property system is also generally regarded as a legal system to protect and stimulate "creation". As an important part of intellectual property system, copyright is to protect the author's "creation" (creation) in the field of literature and art science as the core. Article 1 of China's copyright law clearly stipulates that "in order to protect the copyright of authors of literary, artistic and scientific works and their rights and interests related to copyright, the creation and dissemination of works beneficial to the construction of socialist spiritual civilization and material civilization shall be encouraged, and the development and prosperity of socialist culture and science shall be promoted." It emphasizes the creation of value. There are similar provisions in the constitution of the United States and other countries' constitutions or copyright laws. From this point of view, the legislative orientation of copyright law is to "promote innovation".

The second is the realization of the value of freedom of expression. "Creation" is a kind of state from scratch, which needs the active action of the subject. As the subject of law, man is independent and can express his thoughts and thoughts and communicate with others through his own free will. Free will is the foundation of human being and the dividing line between man and animal. Marx pointed out that "animals are directly identical with their life activities. It has no distinction between itself and its own life activities. It is such life activities. People's life activities are conscious Conscious life activities directly distinguish human beings from animals. " In the Naruto v. Slater case heard by the Ninth Circuit Court of appeal in 2018, the court held that since the monkey was not human and lacked consciousness, it could not enjoy the copyright for its self photo taking. It is the existence of this independent and free will that people can freely "create" (create) things that are not in the world by their own rationality, that is, the conscious activities mentioned by Marx. Justice O'Connor once said that "the intention of the framers of the constitution is to make copyright itself an engine of freedom of expression".

The current artificial intelligence products can not meet the above two conditions. Its existence completely depends on the management of human beings. It lacks independent will, has no initiative, and can not realize the leap from nothing to creation on its own initiative, nor can it exercise its rights and fulfill its obligations. Therefore, it does not conform to the basic principle of freedom of expression. It is neither an independent will individual, nor a special interest group, nor a special adjustment object. It has not yet reached the stage of legislation as the creative subject. At present, there are still unsolved problems in trying to break through the dominant position of human beings in the whole legal system and endow animals or artificial intelligence with legal personality.

（2） At present, the content generated by artificial intelligence does not conform to the connotation of creation and the law of creation

Related to the real subjectivity of human beings, creation is the externalization of human spiritual consciousness, a special and complex spiritual production, and a creative activity of writers' aesthetic experience of life and creating literary works for readers to appreciate through artistic processing. Emotion is its core. The essence of art is emotion. Art expresses emotion. Emotion is the soul of art. Without emotion, there is no creation. Moreover, because of emotion, there are always "magic strokes" beyond the author's original plan, which is the most creative place in literary creation. The current AI writing does not have independent consciousness, nor does it have its own spiritual will. The articles generated are just the flipped combination of words, but the inevitable product of engineers' design according to certain algorithm programs. The program is fixed and the same as that of mechanical mold manufacturing products. From this point of view, the content generated by artificial intelligence is not the regulation object of intellectual property law.

Real literary and artistic creation is not mechanical production, but the integration of history and reality by the fresh soul in an instant. It is the instantaneous mobilization and explosion of personal inner accumulation and even collective unconsciousness. Therefore, inspiration becomes a mysterious and valuable state of creation. It always meets unexpectedly, and makes the author suddenly open and realize when thinking bottleneck Creation and transcendence. However, the inspiration is irrational, unpredictable, uncontrollable, and fleeting. Su Shi once lamented that "it is hard to copy the poem after the Qing Dynasty lost". Therefore, people think it is a gift from God. From the point of view of materialism, it is not a divine gift, but a long-term accumulation. It is a reward for the deep investment of the main body's spiritual emotion in the process of creation, and a thinking leap from quantitative change to qualitative change. Because of inspiration, literary and artistic creation will be full of creativity and present a myriad of atmosphere. However, for the current artificial intelligence, its operation is completely in accordance with the algorithmic procedures, some of which are "artificial", rarely like the "intelligence" mentioned above, and can not produce results beyond its algorithm program. Therefore, taking the content generated by artificial intelligence as a creative work does not conform to the creation law of literature and art, and also negates the value of human creation.

Related to this is the pursuit of new literature and art creation. In addition to the novel pursuit of content and form, it also includes the creation of creative personality, not only to surpass predecessors, but also to constantly surpass ourselves. Artificial intelligence can only be deterred, because it can only imitate existing achievements, according to the data in its database according to the routine, not only can not create forward, but also cause serious legal consequences. On May 8 and June 20, 2019, Beijing Chaoyang District People's court adjudicated the copyright infringement case of "Jinxiu Weiyang". According to the user's requirements, the work uses the "auxiliary writing software" of artificial intelligence to search for and tamper with the previous statements on the database and network according to the user's requirements. Therefore, a work plagiarizes several works, and only 9 of the 294 chapters are not copied "Grand View". Law is the basic bottom line to maintain social fairness and justice. It should respect the law of literature and art science industry. If we excessively indulge in the application of artificial intelligence, which is a tool of "collection and tampering", and give it copyright, it will be unfair to the whole literary and artistic science creation industry.

However, this does not deny that the protection path of AI generated content needs to be explored. We only deny the subject property of the current artificial intelligence products from the perspective of literary and artistic creation. However, for general application writing, the products of artificial intelligence are practical, and some contents have some corresponding uniqueness. They belong to technical labor achievements. Although they are not within the scope of copyright protection, we can find other ways to protect them, such as anti unfair competition law Class. The intellectual property law should also keep pace with the times, face up to the possible breakthrough and development of artificial intelligence, and make a warm and appropriate response.

[warm tips] source of materials: People's daily. Edited by Yuan Bo and Li Yaqi. The copyright belongs to the original author. If there is something wrong, please contact to inform us of modification or deletion. Thank you