"How do you know you're a robot?"
"Sophia" replied: "You don't have to worry about our robots, how do you humans know that you are human?" Last year, the artificial intelligence robot "Sophia" became the first robot in the world to be granted legal citizenship.
At present, the great progress of science and technology promotes the rapid development of artificial intelligence. What challenges are brought to the legal system due to the profound changes in production and lifestyle brought about by artificial intelligence? How should the current legal system be adjusted and dealt with?
Do AI-generated creations have intellectual property rights?
"In the twilight lamp shadow, I know her lovely soil, which makes my soul a captive..." The creator of this verse is not a "person" in the traditional sense, but the artificial intelligence product "Microsoft Xiaoice" . In May 2017, the poetry collection "Sunshine Lost Window" created by "Microsoft Xiaobing" was published. As the first poetry collection entirely created by artificial intelligence in history, its publication brought a new question - whether artificial intelligence generated objects Have intellectual property?
Cao Xinming, director of the Intellectual Property Research Center of Zhongnan University of Economics and Law, believes that according to the current law, intellectual property achievements refer to "the achievements created by human beings", and artificial intelligence cannot become the subject of rights in the sense of intellectual property rights. "However, if the creation of 'artificial intelligence' is similar to the 'computer' of scientific research, that is to say, artificial intelligence generated objects are regarded as intelligent achievements created by artificial intelligence, then artificial intelligence generated objects do have 'intellectual property works' certain properties."
"The crux of the problem lies in the legal characterization of 'artificial intelligence'." Cao Xinming said that at present, the academic community mainly has two views on this issue: "tool" and "virtual human". "Tool" means to regard artificial intelligence as a human creation and an object of rights; "virtual human" is the law that sets part of the "human" attributes for artificial intelligence, giving it the legal subject qualification that can enjoy some rights.
"Even if it is recognized that artificial intelligence products have intellectual property rights, the ownership of their rights is an urgent question to be answered." Cao Xinming believes that if artificial intelligence is regarded as a "tool", the rights of artificial intelligence products can be attributed to the design developers, or the ownership person, or the owner of the right to use it and multiple owners of the right to share it. If artificial intelligence is regarded as a "virtual person", then the artificial intelligence generated can be regarded as a "fruit" in the sense of civil law, for example, artificial intelligence is regarded as a "hen", then the artificial intelligence generated is a "hen" The "eggs" laid are naturally owned by the owner of the "hen".
In addition, the creation of artificial intelligence products often involves "deep learning" through some programs, which may collect and store a large amount of intellectual property information already enjoyed by others, which may constitute an infringement of others' intellectual property rights. Cao Xinming believes that "in this case of suspected infringement of intellectual property rights, who should be held responsible is also a new question."
Can artificial intelligence replace justices?
In recent years, the application of artificial intelligence in the judicial field has gradually deepened: in December 2016, the Beijing Court Intelligent Research and Judgment System named "Judge Rui" was launched, providing judges with accurate information such as case handling specifications and sentencing analysis, and using big data to promote the application of law In May 2017, the country's first "criminal case intelligent auxiliary case handling system" was born in Shanghai. Evidence information capture, verification and logical analysis capabilities...
"Using artificial intelligence can help judiciaries to obtain all the precedents of similar cases and adjudication rules such as laws, regulations, judicial interpretations, etc., thereby reducing their workload and promoting the accurate application of the law." Zhi Zhenfeng, a researcher at the Institute of Law, Chinese Academy of Social Sciences It is believed that through data collection, sorting, analysis, and synthesis, artificial intelligence has a lot to do in promoting judicial, comprehensive and standardized collection and review of evidence, unifying judicial standards, and assisting judicial justice.
However, does this mean that artificial intelligence will replace the judiciary and achieve independent judgment? Obviously not.
"Artificial intelligence is only an auxiliary means to achieve judicial justice, and we must not put the cart before the horse. This is a basic principle that we should always bear in mind." In the opinion of Professor Ji Weidong, Dean of Kaiyuan Law School of Shanghai Jiaotong University, if we rely too much on artificial intelligence to automatically generate judgments , Correcting the deviation of legal decisions based on big data, etc., it is inevitable to form a multiple structure of trial subjects, and in fact, a situation in which programmers, software engineers, data processors and other subjects and judicial practitioners jointly execute justice.
"In addition, if artificial intelligence goes beyond the scope of auxiliary means and is fully applied to trial cases, it may lead to judicial misdirection." Ji Weidong believes that in cases where the facts of the case are tortuous, interpersonal relationships are complex, and ethical and emotional factors are mixed, How to make judgments and make proper rulings based on legal principles, common sense and human feelings is actually a delicate art, which needs to rely on the judge's rational comprehensive analysis. "Even if artificial intelligence is embedded with probabilistic programs and has deep learning capabilities, it is difficult to guarantee a fair, reasonable and convincing case judgment."
Zhi Zhenfeng also believes that, based on the current development situation, artificial intelligence has not yet replaced the possibility of judicial personnel, especially as legal proceedings involving emotion and rationality, norms and values, if handed over to artificial intelligence, it is legal and ethical. , it is difficult to get support. "The formation of 'path dependence' on artificial intelligence should be prevented. The more developed artificial intelligence is, the more emphasis should be placed on the professional ethics of judicial practitioners." Zhi Zhenfeng said.
How to determine artificial intelligence infringement liability?
In November 2016, at the 18th China International High-tech Achievement Fair held in Shenzhen, a robot named "Little Fatty" suddenly broke down and smashed part of the booth without instructions. and injured one person.
The increasing popularity of artificial intelligence applications and the identification and acceptance of tort liability caused by artificial intelligence is another new challenge to the current tort legal system.
"From the current legal point of view, the subject of tort liability can only be a civil subject, and artificial intelligence itself is difficult to become a new subject of tort liability. Even so, the determination of artificial intelligence tort liability faces many practical difficulties." Professor at Tsinghua University Law School In Cheng Xiao's view, after the infringement occurs, who is the owner of the artificial intelligence should be held responsible, and there seems to be no legal dispute. "However, the specific behavior of artificial intelligence is controlled by the program. When infringement occurs, whether the owner or the software developer is responsible is debatable."
Similarly, when a driverless car causes damage to others, is it the driver and the owner of the motor vehicle, or the car manufacturer and the developer of the autonomous driving technology? Is it necessary for the law to have specific tort liability rules for driverless cars? These issues are worthy of further study.
"In reality, the principle of attribution of artificial intelligence tort liability may involve more dangerous liability or no-fault liability." Cheng Xiao believes that, for example, the harm caused by driverless cars, whether in terms of product liability or motor vehicle traffic accident liability, No-fault liability applies. But what needs to be considered in the future is whether the application of artificial intelligence technology itself is a highly dangerous operation (such as drones), which determines whether the liability for damage caused by highly dangerous operations is applicable.
"At present, the judgment of causality, fault and other elements in artificial intelligence tort liability has also become increasingly complex." Cheng Xiao also gave an example that some previously exposed apps "killed big data" and "algorithmic discrimination", due to the code Opacity, coupled with the algorithm's own ability to learn and adapt, makes it difficult to "blame the developers for algorithmic discrimination."
In Cheng Xiao's view, in response to the new problems and challenges brought by artificial intelligence, taking precautions in the research of the legal system will win the initiative in future judicial practice. "Artificial intelligence has arrived, but it is unevenly distributed in various fields of production and life. We should not wait until the future is evenly distributed and artificial intelligence has been fully integrated into all aspects of production and life before we think of regulating it from the law." Cheng Xiao said.
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