Artificial intelligence as an electronic person

Kuznetsov Mihail Sergeevich Student; Faculty of Economics and Law; St. Petersburg University of the State Fire Service of the Ministry of Emergency Situations of Russia named after Hero of the Russian Federation Army General E.N. Zinichev 194356, Russia, Saint Petersburg, 52 Lunacharsky Ave., 1, sq. 196 mike_seckret@mail.ru Other publications by this author

In modern society, issues related to the use of artificial intelligence (hereinafter referred to as Artificial Intelligence) are becoming more and more relevant. Thinking about new ways to use Artificial Intelligence, most citizens do not notice how its legal status is changing, gradually moving from a simple information code to something more. Increasingly, questions have begun to arise related to the possibility of recognizing units (basic units) of Artificial Intelligence as a separate independent subject of legal relations. The greatest difficulty of this approach, in our opinion, is the ambiguity of the way to specify Artificial Intelligence and the objects of its activity. The present study is aimed at clarifying the question posed.

Scientists note that the growing importance of intellectual property is directly related to the progress of mankind towards the post-industrial era ^{[1; 2, pp. 48-52]}. A method is becoming increasingly popular, thanks to which a person minimizes his interference by entrusting calculations and calculations to systems related to Artificial Intelligence. The consequence of this fact is that intellectual property is becoming an instrument for ensuring reliable economic growth. In addition, the global transition to Industry 4.0 (the fourth industrial revolution) was the beginning of the improvement of regulatory regulation in the field of Artificial intelligence. This technology, as G.P. Ivliev and M.A. Egorova believe, is evolving more and more extensively, is used to solve social, technological, technical and other scientific problems, but the status of Artificial Intelligence has not yet been determined; the emergence of this problem is explained, inter alia, from the standpoint of ethical and legal permissibility, as well as legal regulation creation and protection of intellectual property objects. Therefore, these authors consider it reasonable to take into account ethical and legal problems, including the issue of recognition of an "electronic person" and the distribution of legal responsibility ^[3]. It should be noted that many authors address the topic of Artificial Intelligence, considering this phenomenon from various points of view ^[4-7], which indicates the need to study it.

The Russian Federation is no exception. The basis for the legal regulation of issues related to Artificial intelligence is the norm fixed in article 44 of the Constitution of the Russian Federation on the right of everyone to freedom of literature, art, science, technology and other types of creativity. Currently, the legislation of the Russian Federation, namely Article 1225 of the Civil Code of the Russian Federation, defines copyright as intellectual property rights to works of science, literature and art. In turn, intellectual property rights, in accordance with Article 1226 of the said Code, "include an exclusive right that is a property right," and in established cases also "personal non-property rights and other rights (the right to follow, the right of access, and others)." As for the subject of copyright, only authors, copyright holders and publishers can act as such.

In accordance with article 1257 of the Civil Code of the Russian Federation, the author is recognized as a citizen who created the corresponding work with his creative work. The establishment of authorship is carried out by indicating the author on the original of the work or on a copy of the work, unless otherwise proven, which meets the requirements set out in article 15 of the Berne Convention for the Protection of Literary and Artistic Works, adopted in 1886. At the same time, according to paragraph 4 of Article III of the Universal Copyright Convention, revised in Paris in 1971, "in each Contracting State, legal means of protection of unpublished works of citizens of other Contracting States are established without formalities" (the Russian Federation joined both conventions in 1994).

On the one hand, in order for Artificial Intelligence to have copyright and creative rights, it must be endowed with rights and obligations in its legal content. Based on the philosophical content of the concept of "artificial intelligence", it cannot be equated with human intelligence in its objective nature and content.

On the other hand, each Artificial Intelligence, which is essentially a computer program, contains the source code, which is also a creative work protected by the copyright of one or more persons.

At the same time, neither in international norms nor in Russian legislation, this new, if I may say so, "author", who can be considered, including as a subject of copyright, has not received any definition or legal concept, that is, is not recognized as a full-fledged author of creations of the material or virtual world. Therefore, taking into account the development of technology in this direction, the issue of "copyright of artificial intelligence" began to arise quite regularly, which is considered in the literature both in terms of the possibility of its application in real life and in terms of its further legal justification and development. We should agree with P.M. Morkhat, who rightly believes that the issues of determining the rights to works created by Artificial Intelligence units or with their actual and legally significant participation are "as relevant at the moment as they are little explored" ^{[8, p. 35]}.

The essential problem of this issue is the legal personality of Artificial Intelligence, which, according to a number of scientists, is compared with the legal personality of: a) an individual; and b) a legal entity.

In addition, the phenomenon of digitization is emerging as a special way to create creative results with artificial intelligence devices in the field of copyright and patent law. According to G.P. Ivliev and M.A. Egorova, there is a large number of disputes regarding the creation of innovations by artificial intelligence, especially if we assume that in the near future a more advanced generation of artificial intelligences will acquire (or will acquire) legal personality ^{[3, p. 34]}.

In our opinion, if we consider all advanced technologies from an ontological point of view, then they are objects, not subjects, therefore there is no reason to grant them rights or impose legal responsibility on them. However, then we can conclude that under no circumstances will Artificial Intelligence be able to become the subject of relations, because it will always be the object of technology. If we take as a basis the idea of the constant development and improvement of Artificial Intelligence, then we can assume that in theory it will be able to evolve, having received some features of independence. This is what will define him as a separate entity. The proof of the viability of this theory is the speed of development of Artificial Intelligence units. If earlier he was only able to create near-human images, now he contributes to the development of many spheres of public life.

An example is the ability of Artificial Intelligence to analyze the information provided and create a completely new solution, completely simulating the work of the human brain. So, in his article, Matthew Sparks suggested that Artificial Intelligence is able to help law enforcement agencies by calculating the offender using a number of available disparate data ^[9]. This method is identical to the deductive method used by humans, because it includes a way of reasoning from general statements to particular conclusions.

Russia has approved a National Strategy for the Development of Artificial Intelligence for the period up to 2030, which defines artificial intelligence as "a set of technological solutions that allow simulating human cognitive functions (including searching for solutions without a predetermined algorithm) and obtaining results comparable to or superior to the results of human intellectual activity when performing specific tasks," and also establishes that "the complex of technological solutions includes information and communication infrastructure, software (including those using machine learning methods), processes and services for data processing and solution search (subparagraph "a" of paragraph 5).

The concept for the development of regulation of relations in the field of artificial intelligence and robotics technologies until 2024, approved by Decree of the Government of the Russian Federation No. 2129-r dated August 19, 2020, takes into account the provisions of the above-mentioned National Strategy for Regulating Artificial Intelligence; the National Program "Digital Economy of the Russian Federation" and the Strategy for the Development of Information Society in the Russian Federation for 2017-2030. Among the goals of this Concept are: "creation of the foundations of legal regulation of new public relations formed in connection with the use of artificial intelligence systems ...", as well as "identification of legal barriers that impede the development and application of artificial intelligence systems ..." (paragraph 2).

There is no single approach to the legal interpretation of Artificial Intelligence in civil law research. In this study, we proceed from a broad understanding of Artificial Intelligence as computer technologies and systems capable of solving complex problems and taking "self-initiated" (self-initiated) actions through machine learning in real conditions.

There is also no agreed opinion on the mechanisms and methods of legal regulation of artificial intelligence, and the positions of scientists range from universal general and predictive norms to the regulation of specific artificial intelligence systems. At the same time, the legal regulation of artificial intelligence is primarily aimed at reducing risks.

The development of artificial intelligence technologies has called into question the need to take the first legislative measures in this area. As it was noted, each country solves this issue individually, taking into account the peculiarities of its legal system. By 2025, each State will have accumulated its own experience of relevant legal regulation arising in connection with the development of Artificial Intelligence, starting from national strategies in the field of Artificial intelligence and ending with the principles of its application in specific industries.

Regulating Artificial Intelligence is a complex and dual task, excessive regulation of which can negatively affect innovation, while insufficient regulation of Artificial Intelligence, according to A.V. Neznamov, can lead to serious damage to citizens' rights, as well as to the loss of the opportunity to shape a future civilized society ^{[10, p. 92]}. Regulation should be technological, but it should not be neutral. This is due to the fact that regulation is aimed at managing the social changes caused by technologies with their features. Technological neutrality implies the possibility of applying special rules to any technological situation, but in the case of Artificial Intelligence technologies this is problematic and leads to ineffective legal regulation.

As noted by G.P. Ivliev and M.A. Egorova, there are two main approaches to the regulation of artificial intelligence systems in the literature. The first is a formal approach: the established legal system and its institutions that allow artificial intelligence to be regulated to a certain extent, i.e. they include the institution of legal responsibility, information security standards, confidentiality, personal data protection, and industry law norms. The second is a technological approach: regulation of individual artificial Intelligence systems, units. The first approach prevails in Russian and foreign science. However, from the perspective of innovative, scientific and technological development of the field of Artificial intelligence in the future, the emphasis will probably shift towards a technological approach and the development of special legislation at the first stage, basic or framework, to regulate artificial intelligence in general, at the second - individual artificial intelligence systems, artificial intelligence units ^{[3, p. 36]}.

In order to resolve issues related to the legal status of artificial intelligence systems, it is necessary to understand whether Artificial Intelligence is the result of intelligent activity and whether it can create anything that falls under protection.

The analysis of international experience has shown that there is no separate regulation of intellectual property protection issues in the context of Artificial Intelligence. At the same time, in some foreign countries, this position is supported by legislation or judicial practice. For example, in the United States Code, in the section "Patents", the term "inventor" refers specifically to an individual, that is, only a person can be the author of an invention (inventor) (Section 35, § 100).

Confirming what has been said, V. Vitko believes that "there is no creativity in the activity of artificial intelligence to create results similar to objects of copyright," therefore, the results created by it cannot be qualified as objects of copyright, and therefore are not subject to protection by intellectual property law ^{[11, p. 6; p. 19]}.

Exploring the true meaning of the word "creativity", we can understand that as a concept it means the creation of new cultural or material values. Based on the words of the mentioned author, we conclude that each new manifestation of human creativity is a completely new product, different from all previous ones in its design and execution. An example of the fallacy of this theory can be the Baroque architectural style, which became a direct continuation of the Renaissance and learned a lot from it. The Baroque style was used by many artists and architects around the world, complementing and developing, while exposing the result as a product of their creativity. In the opinion of A.S. Matusarova, who described in detail in her scientific work the structure of landscape architecture in the Baroque style, combining both the grandeur of the French regular style and the sophistication of the English landscape, concluded that the Baroque is not quite an independent new trend in architecture, but in many ways a repetition of past styles ^[12].

Thus, it can be assumed that new products of human creativity are based, as a rule, on its past results and cannot be new in the full understanding of novelty, which does not deprive them of the possibility of vocation and protection as products of creativity.

The results of the "creative activity" of Artificial Intelligence acquire legal capacity when it is recognized as a subject of copyright. The legal consolidation of Artificial Intelligence as a subject of law will not only remove the problem of determining copyright for certain results of creative activity, but also practically determine and establish the possible actual limits of legal liability of Artificial Intelligence in the Russian Federation.

In our opinion, in order to solve the considered problem, it is proposed to endow Artificial Intelligence with the status of an individual, which can be called an "electronic person". An electronic person (along with an individual and a legal entity) can be granted copyright to the works created by him, undoubtedly taking into account the characteristics of this person. In addition, in this case, it will be possible to determine the type of responsibility of the electronic person or, possibly, the one who put erroneous or deliberately incorrect source data into it, which caused harm to both the individual and society as a whole.