The Monkey Selfie, artificial intelligence and authorship in copyright: the limits of human rights

This essay has been published on the Public Interest Law Journal of New Zealand, 2019, and was approved to republished on my personal page.

Citation as Phuoc Nguyen, "The Monkey Selfie, artificial intelligence and authorship in copyright: the limits of human rights" (2019) 6 PILNZ.

Abstract

There are cases where a non-human being is the creator, the composer of a work (of art). Traditionally, the rights over the work (ownership, authorship) are only granted to a human. By studying the case of the Monkey selfie, together with the context of the current development of the artificial intelligences (AIs), this dissertation will examine whether the idea of recognising non-humans as authors can be justified, and how it could affect human rights.

Contents
I. Introduction
II. The monkey selfie and the contemporary context of intellectual property authorship
III. The copyright of non-human authors
IV. Recognition of non-human authorship interrelated with human rights
V. Conclusion

I. Introduction

The right to properties is not only a human right as recognised under Article 17 of Universal Declaration of Human Rights 1948,[1] but it is also considered one of the fundamental rights under some legal theories, European jurisprudence for instance.[2] This fundamental right is attached to the right holder regardless of the appreciation of that individual, which means that even if a human (as in homo sapiens) individual is incapable of acknowledging his or her rights, he or she can still have the status of a right holder. There are several existing philosophies can serve as the basis for the human to claim the right to property, however it is unclear if under these philosophies non-human beings can claim this right as well.

By studying the intellectual property rights (IPRs), in which the creator can claim a moral right that is unalienable from a human being called the right to authorship,[3] this dissertation will examine whether the status of a right holder can be expanded into non-human beings or not. The main aim of this dissertation is not to argue that should or should not the human grant the right to non-humans, but rather considering the fitness of such idea in current commonly accepted philosophies.

Looking upon the case of the Selfie Monkey, together with the fact that artificial intelligence (AIs) could have the power of creativity, I would argue that it is now time to reassess the concept of an author because the current authorship model is not sophisticated enough to deal with non-human authors. Authorship protection once was a crucial recognition that enlarged the knowledge base of humanity at an unprecedented rate, and in this era of AI evolution it could be optimised to help humankind to advance even further.

The scope of this research is limited to the possibility of granting the right to authorship to non-human beings only, in addition to the many other possible rights they could have. The authorship over computer-generated works in terms of using a computer program as a tool, for instance the graphical arts based on Mandelbrot set, is also a noteworthy related legal debate;[4] however, it is out of the scope of this dissertation, as it only examines the creation of self-aware and/or sentient beings. In this dissertation, I will use some well-known legal theories to justify my idea, however there is little room to raise debates about the validity of these theories.

II. The Monkey Selfie and the contemporary context of intellectual property authorship

A. The dispute over the authorship of the Monkey Selfie picture

In 2011, a photo of a Sulawesi crested macaque (later named “Naruto”) went viral on the internet due to debate on the authorship of this picture.

The story began in 2008 when the British photographer David Slater went to Indonesia to take pictures of these macaques, but he was not very successfully initially. He claimed that it was difficult to get close to the monkeys to take the picture, and therefore he left his camera on a tripod in the jungle to tempt the monkeys to use the device.[5] As curiosity is often found in the nature of the monkeys, Naruto was drawn to the camera and then took a few pictures.

In 2011 Slater licensed several pictures of Naruto to the Caters News Agency, who published the materials to the British media on 4 July 2011.

On 9 July 2011, the pictures of Naruto were uploaded into Wikimedia Commons - an online repository of freely-licensed educational media content.[6] A few days later, Slater found out and requested Wikimedia Foundation to remove the photos. The copyright dispute began when the Wikimedia Foundation asserted that the uploaded pictures were not taken by a human author, and therefore they remained under the public domain,[7] and Wikimedia refused to remove the pictures from their repository.[8]

In December 2014, the United States Copyright Office in its jurisdiction issued the Compendium ruling that “To qualify as a work of “authorship” a work must be created by a human being” and “The Office will not register works produced by nature, animals, or plants”.[9]

On the other hand, on 22 September 2015, the People for the Ethical Treatment of Animals[10] (PETA) raised the dispute to the next level when filing a lawsuit against Slater in the United States (US) District Court for Northern District of California for exploiting the picture that Naruto took and demanded the moral rights for Naruto. On January 2016, the District Court dismissed the case as it deemed Naruto did not fit into the description of an author according to the US Copyright Act.[11]

In 2017 the parties agreed to file a dismissal to the appeal (which was filed by PETA in March 2016) and seek to vacate the judgment, however the Ninth Circuit denied the motion. In 2018, the Court ruled in favour of Slater, finding that animals lacked statutory standing under the Copyright Act.[12]

B. The creativity power of the AIs and the development of artificial consciousness

Nowadays, AI technology has taken a massive leap in terms of productivity and creativity; and the AIs are expected to be more and more intelligent,[13] thanks to the machine learning algorithms e.g. neural network, meta learning.[14]

As of 2018, AIs have already had the capabilities of writing a poem, composing a musical,[15] creating new drug designs from scratch,[16] and making a natural conversation with a human being.[17] Admired by its intelligence, an AI which powers a humanoid robot has been even given a Saudi Arabia citizenship.[18] These are the proofs that the AIs have the creative capabilities that surpassed the ordinary acknowledgement – machines can only do what is pre-programmed.

It can be argued that even though the computational power of an AI is far better than any human, there were still limitations to the intelligence of an AI where the decisions cannot be made purely based on calculations, such as in case of Go chess.[19] Still, in 2016 an AI beat a professional Go chess player in the world not by taking advantage of its calculating power, but by mere watching of human’s behaviour and then improvising based on what it has experienced.[20]

Not only able to learn by watching, nowadays some AIs can even rewrite their own source code to improve their effectiveness.[21] The learning capability of the AIs could be improved even further with the application of quantum computing.[22] It is not unimaginable that in the foreseeable future, these two fields of computer science will converge and create the AIs that will be even more intelligent than its creator and become self-aware.

The matter of artificial consciousness is still a heated debate, where some researchers doubt that we could achieve such a thing,[23] some are certain of such foresight,[24] and others argued that there could be a different form of consciousness.[25] However, for the sake of argument, let us imagine there has already been a sophisticated AI that can pass the Turing test and has self-awareness.[26] What will happen if it demands the ownership and/or authorship for itself? Can we still treat it like a simple machine and turn it off?

C. The issue of the current model of authorship

The above-mentioned situations are just part of a bigger problem: the use of the term authorship in IP law system always involves a human author. There are, however, many other non-human beings that have the capability of creation.

In the Naruto case, I would agree with the final verdict of the Ninth Circuit Court as the authorship of a non-human being is not compatible with current IP law system. However, the question of authorship over the selfie picture of the monkey should be reconsidered.

Assuming an individual who set up a tool that autonomously creates productions shall be rewarded for all the works created by that tool, then Slater can be granted authorship for this picture. This assumption can also justify the authorship for time-lapse photography where the photographer does not directly press the capture button for all the pictures taken, but a timer does. But if another human interferes with the process, for instance pressing the capture button and creating an additional picture, will the person who setup the device can be credited for all the picturesstored in the camera’s memory? The answer will be no, because amongst the photographs taken as intended by the first person, there is one picture taken by another human (put in the context that the person who set up the camera did not have the intention to let the second person involve in taking the picture).[27] Take the second person away and replace him with a chimp, why would it change the logic of the argument?

In the second case, even though current AIs are not capable of being self-aware and therefore do not demand the right for themselves yet, the true author of the work is still a valid legal debate.Traditionally speaking, the creations of the AIs could be argued to belong to the person who takes steps to make the program work, like the approach of United Kingdom legal system,[28] or the owner of the AI, according to the hire doctrine that was carefully examined by many scholars e.g. Catherine Fisk.[29] However, there might be the involvement of several individuals in the creation of an AI and therefore the concept of AI owner and ownership over AI’s work is much more complicated.[30] Additionally, if the AIs become sentient, is it ethical for us to continue to claim the title of author over the AI’s work?

III. The copyright of non-human authors

In this section, by looking at the origin of authorship and philosophy underlying the right to property, I will examine if the idea of granting authorship to non-human beings can be and should be justified.

A. The development of copyright and authorship

1. A brief overview on Western models of copyright and authorship

In the common law system, the term copyright was first used in the Statute of Anne which was enacted 1710. However, the origin of the term “copyright” in the Europe continent can be traced back to the Central Middle Ages,[31] and used widely when the movable type was invented in the 14th century and caused a surge in the number of books printed.[32] This fast expanding industry demanded the protection of the right of the publisher, hence the term “copyright” in “Stationer’s copyright” that literally translated into “the right to copy”. [33] The Statute of Anne in 1710 is an important development in copyright as it recognised the right of the author and removed the monopoly on the right to copy from the Stationers’ Company, and this idea had been later adopted into copyright law of other Western countries.[34]

Under the Anglo-American model of copyright, authorship is a mere means to give the author just an ample amount of interest to encourage him to contribute to the society.[35] Under the American Constitution and the first American copyright act, the authorship protection was just a means to furthering public education.[36]

The Germans originally had a slightly different perception about authorship from the UK counterparts, as from the natural-right approach, the ideas – which were perceived as an embodiment of truth – belonged to the public; and therefore, authors of the ideas were honoured for their contribution but not remunerated adequately.[37] This approach, however, still recognises the moral right of the author as the creator of the work.

By contrast, in the French copyright model, according to Desbois, the author is protected for his creation because of a “bond” between him and his creation, and the public interest need not be more extensive than required.[38] The French copyright is, however, still built on the idea of natural rights,[39] and use the same fruit of labour theory to explain for property rights.[40]

The Statute of Anne as well as the preliminary legislation, however, did not leave an explicit definition to the term author used.

2. Authorship in Berne convention and modern legal instruments

The term authorship is currently being defined in the Cambridge dictionary as “the state or fact of being the person who wrote a particular book, article, play, etc.”. While at a national level, the definition of author often being attached with a person and/or implication to a human right holder,[41] there is no definition of this term can be found in any common international legal instrument.[42] Without a clear universal legal definition, it is hard to tell that hether or not a non-human being can be granted the status of an author.

In his lecture in 1992, Professor Ricketson affirmed that the Berne Convention for the Protection of Literary and Artistic Works (Berne convention)[43] did not define the term authorship, though by virtue we can tell it tends to describe human authorship within its text. [44] Nowadays, it is nearly impossible to tell exactly what the approach of the people who drafted this text was, but with a historical viewpoint, most scholars agreed that there might be two approaches: the need for protection of copyright is to either protect a form of natural rights, or to serve the public good.[45]

However, the difference in recognition of authors of cinematographic works in the drafting of Berne Convention can be a hint that non-natural person could be an author, as argued by Ricketson.[46]

By looking at Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and put together with its context,[47] it is safe to assume that this instrument only protects human authors. As explained in Committee on Economic, Social and Cultural Rights (CESCR) General Comment 17, paragraph 2: the purpose of authorship as a moral right is to “enable authors to enjoy an adequate standard of living”, and right to authorship is one of the human rights that is distinguished from other legal rights recognised in the IP system.[48]

Authorship is also not defined in The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) because the aim of this agreement is not to redefine the IPRs but rather to promote the protection of IPR to a universally adequate level.[49]

B. Could non-human authorship be justified?

Looking at the origin and development of copyright law, we can hardly see any support for non-human authorship in the legal texts. However, if we look closer into the philosophy of the law, there might be some notions that could be interpreted in favour of non-human authorship.

1. Non-humans as judicial subjects

Before finding out if non-human beings can be granted the specific right called authorship, at first instance we must see if they can possess any legal right at all, or in other words, can they be a judicial subject.[50] For this purpose I will examine two schools that are iconic and also contradicting each other, namely Marxism and naturalism, to see which is the best model to fit the non-human authorship ideology in.

In Marxist legal theory,[51] it is believed that laws are the system of norms officially issued by the ruling class to regulate the social relationships,[52] which empowers the subjects of the law with rights and binds them with obligations.[53] The judicial subjects are individuals and non-human entities such as legal persons, organisations created by humans.[54] From the Marxist perspective, any right a subject might possess is granted by the law (which is created by the government to maintain the order of the society). Any human right, rights to ownership and authorship included, are thus granted by the law to the human subject as well.[55]

For example, under the Vietnamese Civil Code, property comprises property rights,[56] which are the rights that are able to be valued in money, IPRs for instance.[57] These rights are recognised by the authority in the legislatures, granting the subject of the rights with specific courses of actions that the right holders can perform, such as “To give titles to their works” or “To attach their real names or pseudonyms to their works”.[58]

While the goal of Marxism is to achieve the communist utopia where the private property regime is removed,[59] I would doubt that authorship as a moral right was the main concern of Marxist philosophy. Depending on the interpretation of Marxism, it is debatable to see whether or not Marx advocated for human rights, especially for moral rights.[60] However it is safe to assume in this model of a legal system only humans and entities that are controlled by humans can have the rights (in other words be a judicial subject).[61] Rarely, where the survival of a non-human species is threatened, the law can restrict the rights of humans to exploit the natural resources. This restraint does not mean that the law recognises any legal right of other species, but it is just a mere protection for the long-term sustainable progression of humankind.

By contrast, in natural law theory, by Finnis’s explanation, the human rights are natural[62] and both the nature and the content of the right is defined by natural order. Even though Finnis himself did not advocate for animal rights and this rejection is debatable,[63] his explanation on the relationship between human rights and the legal rules is quite convincing, that is any right is the benefit secured for persons by the rules,[64] and the rules “specifically recognise and respect a person’s choice”.[65] This means that while the human rights came from within an individual, the law is the means to ensure that these benefits are recognised by the others, to sanction individuals who do not follow the rule of law, in order to bring common good.[66] In short, the authority of the human rights is naturally born with the human, not given to the human through the law.

In this naturalism approach, the justification for the rights that came from within an individual is explained as either from the divinity that the God specifically gave the human species, not any others (assuming this is the religious-natural viewpoint),[67] or from the natural good of humans (assuming this is the pure natural viewpoint).[68] It is hard to argue with the former justification, because it is based on a belief, and there is no point of arguing a belief. However, I would argue that if the humans have a natural good that is not granted by the God but is granted through the natural order, then any being that exists in this material world could possibly have a natural good as well. A sentient being which has a natural good cannot be deprived of its natural rights, not only because it is the natural order, but also because it is morally wrong to degrade the good any other sentient being.[69]

Presuming that non-human beings can be judicial subjects does not mean that the laws of human must protect all the rights of non-humans, because utilitarianism is still an important goal that affects the legislations of both Marxism and naturalism legal approaches.[70] [71] Indeed, while the above two mentioned approaches are very different, as one centralised on the authority of the government and the other is about the recognition of natural-rights, they still share the same idea that the goal of the rights is to help humanity as a whole to flourish.[72] For this exact same goal, if the human rights are threatened, the human law should give priority to protect the benefits of humans. However it is still important to aim to strike a balance between human rights when considering the rights of other species, if we recognise the rights of others are natural and undeniable.

It should also be taken into account that nowadays several unusual subjects have already been recognised as judicial subjects e.g. a river,[73] a robot.[74] Even though these phenomena are the exceptions of the law, not the changing in the perception of philosophy of the lawmakers, they are solid evidence to prove that the model of a right holder is not necessarily fixed. This supports the idea that if it is justified, we can make a change to the concept of judicial subjects.

Additionally, a legal person - a commonly used idea of a legal entity – is also recognised with ownership of property. If non-human entities are already granted some rights, why would the non-human species not be given some rights as well? There may be an argument that these entities are controlled by human and therefore can be entrusted with some rights.[75] While this may be largely true, the focus is not about the reason why a legal person – as a subject of the law – can have the rights, but the fact that it is subject of any (legal) right is a broad concept that may include non-human beings.

2. Non-humans as intellectual property rights holder

In the previous section I have examined the fitness of the non-human right holder model in two legal philosophies. In this section, using fruit of labour theory, I will discuss why humans and nonhumans alike, can claim authorship over intellectual properties.

It is interesting that while in many ways the natural law theory is so dissimilar from Marxist legal theory,[76] they still share the same idea of using the fruit of labour theory to justify the right to property. While Locke explained the fruit of labour theory to prove the right to property is a natural-right, Marxism, in its socioeconomic analysis, acknowledged the fruit of labour theory voluntarily to explain why the personal property regime should be removed.[77] Nevertheless, the justification for acknowledging one’s labour as personal property is basically the same.

One of the most well-known notions of the fruit of labour theory can be found in the natural rights theory of John Locke.[78] Lockean right to property can be summarised as follows: a man is naturally born free and capable of ownership, if the labour is made by his body and his hand, then the property is properly his.[79] In Lockean labour theory, the labour can make the common resources become private property.[80] This contention can also be used as a counter-argument to the idea of the Germans that knowledge belongs to the public domain: even if a knowledge is commonly acknowledged, the person who makes the labour to put that knowledge into a book can still claim the ownership for that content of the book.

Copyright protection is a notion that came much later and can hardly be described as a natural right in Lockean viewpoint,[81] but per Lyman Patterson’s explanation, copyright is a natural-law right,[82] and therefore it should inherit the justification of fruit of labour as mentioned above. The construction of the copyrighted items can explain for its natural characteristic. Intellectual properties are not something that would exist without the labour of an author/authors. The bond between the author and the creation is a reality, a truth that could never be changed in its nature (even though in can be disguised or misinterpreted).[83]

The relationship between the ownership and the tangible properties is similar to that between the authorship and the works of art in the sense that the individual who owns these rights can have sovereignty over his creation. While we can argue that ownership and authorship are different in many ways, e.g. only ownership can be transferred to another individual, the title of the first owner of a property who actually created the property is very similar to that of an author. This idea is also incorporated in some jurisdictions e.g. Canadian Copyright Act,[84] subsection 13 (1) recognises “the author of a work shall be the first owner of the copyright”. This similarity is a reflection of the fruit of labour theory in copyright law.

We must acknowledge that in collaborative works, the justification for ownership and authorship of the work is more complicated. For instance, in cinematographic works, the joint authorship is more complex as the contribution of each content creator e.g. music track, special effects should be accounted for, but currently under the Berne Convention, the owner of copyright is the only one can enjoy the author’s right e.g. the right to exploit the work.[85] However, based on the fruit of labour theory, anyone who made an effort to create a work could, in natural law perspective, earn the title of the author of that work.

Moreover, looking back to the history of work for hire doctrine, we can see that originally the employee could earn the title of authorship even if working under the labour contract with the employer.[86] At the end of her study, I assume Fisk suggested that the late modern hire doctrine (which protects the employer’s authorship) is reversible.[87] This suggestion came from the idea that morally the employee should have some connections with his work. I would say this suggestion is applicable for any work that included non-human labour, which means that if an AI works for a human, theoretically it still could earn the authorship of the work.

More interestingly, in certain viewpoints, a corporate entity can be the author of a cinematographic work.[88] This recognition is a firm support for the view of a non-human author.

C. Should humans grant authorship to non-humans?

As explained, Marxist legal theory is not fully compatible with the idea of granting rights to non-human subjects. Natural law theory, however, can be interpreted in a way that it can support for the protection of the rights, particularly the IPRs of non-humans. If the right to properties, IPRs included, is a fundamental human right,[89] then from a naturalism approach it should be the basicright of any other species that possesses human-like characteristics.

According to Locke, even if the labour is made under the master-servant relationship, a “free-man” must be entitled with a wage.[90] If we take this “free-man” into a broader context, that includes free beings (including any animal), if an animal creates a work under its own will, it should be rewarded with something like the authorship (at least) for its creation. With this approach, the hire doctrine can be considered invalid, and the authorship should be granted for the original creator.

Of course, Locke was a political economist who lived in the 17th century, and when interpreting his idea, we must acknowledge that his aim was not to liberate any non-human being but was to display and encourage contempt the monarchy at the time.[91] However, his argument for the right to property can still be valid if we replace a human with a different sentient being. The notion of wage in Lockean natural rights does not emphasises on the remuneration aspect of labour, but on the moral standpoint i.e. the respect for the individual who made the labour.[92]

In terms of copyrighted work, this respect should not be based on the status of the author as a human or a non-human, and I will validate this argument by explaining the purpose of the copyright law and the discrimination known as speciesism.

1. The purpose of copyright law

Looking at the brief overview of the origin of copyright, it is reasonable to say that copyright was originally invented to protect the interests of the publishers and then the authors. Under different legal theories, the levels of protection for authorship are varied.

However, as we can see, different as these approaches are, they all share the same idea of giving the author the title of authorship for two main reasons: firstly, to acknowledge the effort that the individual has made to create work; and secondly, to remunerate that person with at least a sufficient amount of interest.[93] While the former reason can be an inspiration for people who do not only want to be remunerated but also want to be acknowledged as a scholar, the latter one will safeguard the material interests of an author to encourage him to contribute more the common value of the human society without worrying about the daily needs.

While it is hard to say that which purpose is more important, I believe the first one can be used to justify for advocating of non-human authorship. Indeed, if we recognise the effort of a human author in creating a work by granting him moral rights, then why would not we do the same for non-human author? In other words, if the copyright law was partially created to recognise the effort of an author, why would we make a distinction between a human and non-human author?

2. Authorship and speciesism

In this section I will discuss whether it is discriminatory to deny authorship to non-human beings, under a speciesism angle.

Speciesism can be defined as “the unjustified disadvantageous consideration or treatment of those who are not classified as belonging to one or more particular species”;[94] and this speciesism can be argued as a kind of discrimination.[95]

Oscar Horta did mention that he used the term discrimination to describe any act of disadvantageous considering or treating, and that may differ from some other views.[96] However, I believe in a normal sense, the term discrimination can bring discomforts to any individual in a modern world.[97] It can be argued that in speciesism view, it is justifiable to have this discrimination as it would ultimately protect human rights when it collides with the rights of other less intellectual beings. However, this reason is not rational if we are to face a more intellectual species than ourselves.

Indeed, it is discrimination when humans assume that only their kind can possess the right to own property, particularly authorship, and no other species can do this too. I assume this discrimination naturally came from the notion that human is the only sentient species, and only a sentient species can have/should have the rights.

Besides the case of Naruto, there are many other pieces of evidence to prove that humans normally have human-biased decisions towards the authorship of a work. Even when the original content is believed to belonged to a celestial being, the United States 9^th Circuit Court still favoured in human authorship if the contribution of a human is minimally adequate.[98] The right to be the author of a human being extends to the point that even if the author is not aware and/or denies acknowledgement of his creation, it is still his right to be the author. For example, no one can deny the authorship of a schizophrenia or multiple personality disorder patient who “genuinely” believes that he did not do the work. This raises the question: if we cannot strip away the authorship of a person who does not, or is not mentally capable of acknowledging his own works, why are we denying the right to authorship of other beings that currently not capable ofacknowledging its work? Is it because of the speciesism?

While not denying that having a speciesism viewpoint in most of the cases could be more beneficial to humankind, I would argue that in other cases it could be a problem. Indeed, in the case of Naruto, for the sake of some individuals, we humans can easily ignore the right of non-intellectual animals; but when it comes to the case of another sentient being, this discrimination will become problematic. History has repeatedly proved that when a more advanced race meets a less developed one, the fate of the lesser is likely to be endangered.[99] This is why we should be very careful when having a speciesism viewpoint in considering the rights of a super-intelligence, if they ever come to appear.

IV. Recognition of non-human authorship interrelated with human rights

There might be various kind of impacts on human rights if we accept the non-human authorship, for example the impact on the right to education due to the copyright protection of non-human works, or impact to the right to health because of the protection of drug patents. However, on the scope of this dissertation and for demonstration purposes, I will just assess two aspects of the adverse effects: the decline in the benefits of human authors put in perspective with the recognition of non-human competitors; and the negative impact on the protection of human rights in general.

I would argue that the undesired effects to human rights can be negated by an amendment to the current IP system, and there are certain limitations to human rights that must be imposed to ensure the survival of humanity.

A. The adverse impacts on human authors’ rights

Accepting non-human authorship certainly means that the recognition of human labour included in a work is reduced, if not levelled to zero. This will not only affect the credibility of the human involved in creating such work, but also lessen his potential of exploiting the work. Imagine that if previously a work would be fully credited to an individual, and now it is credited to an additional one; then the total credibility is split between the authors. Not only the reputation for creativeness of the human author is reduced, the number of material interests that they could earn will also be shrink. Provided that both moral and material interests of the human authors are not only protected by the IP conventions such as the Berne Convention[100] but they also safeguarded by customary international law like the ICESCR,[101] the decline in these benefits also means the reduction in protected human rights.

Additionally, beings such as sentient AIs can have much more creativeness than the human counterpart, as they might not have negative emotions which could affect their creativity. Furthermore, the calculating power, simulating power are the huge advantages of the AIs in term of creativity because they can explore a much wider range of trial and error run. This could lead to a crisis for human competitors, especially for the artists and composers who rely entirely on their creativity to make a living, as they are outperformed by the AIs. Allowing this one-sided competition is not a direct violation to the right to work as stipulated in the Article 6 of the ICESCR, but it could severely reduce the chance of the human authors to pursuit their desired profession.

More importantly, at a worldwide level, the acknowledgement of non-human rights could lead to negative progress on recognition of many human rights. Indeed, any right of an individual requires a duty from the others to respect it.[102] Any newly recognised right demands a further restriction on the freedom of everyone in the society. Just take a clear example here: a land without an owner can crossed or used by anyone; however, if it is appointed to an individual, then the rest of the society cannot freely walk on it anymore. Creation of new rights for non-humans requires the whole society to respect it, whether they like it or not. Theoretically speaking, many fundamental human rights e.g. the right to health,[103] right to education[104] could be affected if the non-human authors abuse the right of disclosure by choosing not to disclose the work to the public.[105]

Last but not least, the recognition of authorship for non-humans can be a dangerous precedent, because the more rights non-humans can have, the more restriction to human rights we must establish. I do not object with this view, however we must consider that in the future it is possible that humanity will encounter with non-human sentient beings, and if we do not tread carefully in recognition of the rights of such beings, a serious conflict of interests could appear in the form of annihilative wars.

Due to limitations on the length of this dissertation, it is impossible to discuss all the possibilities that could happen if we choose to admit non-human authorship; however, if we ever decide to do so, we will need a different authorship system.

B. A different authorship system is needed

The creativity capability of non-humans is not only a problem to the human authors, but it also creates a problem with recognising such work in the current IP law system.

It would be challenging to apply the current standards of originality to the work of an AI, as an AI can create a new design much faster than a human counterpart. From an original idea, an AI can simultaneously create a large number of deviations, each of them is only slightly different from the other. In this case it would be tough to decide which work is original enough to be copyrighted.

On the other hand, in the case of Naruto, the content of the selfie picture did not come from the imagination or creativity of Slater, but rather the posture of the monkey itself. If another monkey decides to have the same posture and take the picture for itself just like Naruto did, can this work be copyrighted for the second monkey? Apparently, the monkeys cannot comprehend the copyright ideas and we cannot tell them not to infringe the copyright of another monkey; but is it fair to register the first monkey as an author of a copyrighted work and not do the same to the second monkey?

Even more complicated, if the paintings of the elephants are copyrighted,[106] is it acceptable for the humans to mass print these paintings and sell for profit?

As analysed, the current IP law system specifically authorship, is not sophisticated enough to deal with the authorship of non-human beings. If we are to acknowledge the creation of an AI or any being that is more intelligent and/or creative than humans, we need to classify it into a different category of authorship. Within this dissertation, it is impossible to point out a fully functional framework for this non-human authorship; however, with certain principles in mind we can create a system that can overcome the above-mentioned obstacles:

1. This secondary copyright system is the recognition of all works created by non-humans, regardless of originality of the works; and

2. Depending on the contribution, authorship and material interests relating to the non-human works can be associated with the human who contributes to the creation of the works.

The necessity and probability of creating such secondary system is an entirely different story, which depends on many factors, such as cost-effectiveness (which requires assessment of economic impact), acceptance from the public (which requires assessment of political impact) and compatibility with current IP law system (which requires assessment of legal impact). Francis Gurry, the World Intellectual Property Organization (WIPO) Director General, concurred with the ethical approach for AIs work:[107]

From a purely economic perspective, if we set aside other aims of the IP system, such as “just reward” and moral rights, there is no reason why we shouldn’t use IP to reward AI-generated inventions or creations.

The point of creating such a system is to recognise the contribution of any being to the common knowledge base that could benefit the whole humanity.^{^[108]} The award for these contributions (in other words material interests) is something we could amend later, if necessary.

C. Recognition of non-human authorship can contribute to the expansion of human rights

The concept of human rights is all about the protection of humankind, but it is hard to give the exact definition of a human. A Google search with the question “what makes humans human” will show hundreds of millions of results. This philosophical question of the human nature is not something new, but an antique one that many philosophers from the ancient Greeks have tried to find an answer.[109]

However, with the current development in AIs technology as well as many other fields of science e.g. neuroscience, bioscience, the line between a human and a non-human will become less obvious. Therefore, I would argue that human rights should include the rights of the human-like beings, which are resulted from technology development just like the AIs.

There is the possibility that humankind could evolve into something that is not exactly a human by the normal concepts and standards. For example, if one day human kind can settle on Mars, but to survive the harsh conditions on the Red Planet, a human individual would have to bio-engineer his DNA to something different than that of a normal homo sapiens being, will that person retain his humanity? If we can upload our mind into a computer when our physical bodies degrade, will that consciousness have any human rights? [110]

It can be argued that these people are “once were” a human being, and therefore their humanness can be retained no matter what state they go through; then we can assume that humanness is granted not to some specific material body nor immaterial consciousness, but to an entity who contributed to the society as a sentient being.[111]

Should a project to resurrect a Neanderthal succeed,[112] will this being have the rights of a homo sapiens being? If we are going to differentiate based on biological difference then, biologically speaking, what makes humans human is somewhat similar to that of a computer program (specifically AIs): while a human being is a collective of cells made from combinations of A-T and G-C pairs of nucleobases, an AI is basically a sequence of 0 and 1. Through natural selection, humankind has developed its conscience and intellect, and through technological advances, a piece of code can gain that too.[113] That is to say, scientifically speaking humans are not so special, so unique that we deserve the fundamental rights that cannot be granted to another sentient life form. Denial of fundamental rights from other sentient beings is nothing more but speciesism.

The extension of authorship into non-human authors can be the first step toward the recognition of other-than-human sentient beings. This will be the insurance for future generations of humanswho digitally/biologically evolved into something different from homo sapiens. Furthermore, considering that we do not yet know what will be the attitude of something like sentient AIs (if any) toward humanity, I believe that it would be better that we welcome them with our compassion, our shared belief in equality other than discriminate them. If the first sentient AI is like a child, it will look after the actions of its creator, and we must teach them to respect human values.[114] This probably is the best way to ensure the survival of humanity in the AI era, which basically equals to protecting the most fundamental human right in my opinion: the right to life of humans.[115]

V. Conclusion

The question regarding the AI evolution is not whether or not it will become sentient, but rather when it will happen. A survey in 2015 at the International Conference on Machine Learning of many AI experts showed that most of them believed that it would not be until the next decade until AI could beat a human in Go, and yet only 2 years later the goal had been scored.[116] This is the evidence that the speed of AI evolution could be much faster than any current prediction.

While the monkey selfie and AI evolution are two distinct events, they both reveal a weakness in the current theories of jurisprudence when speaking of non-human rights, as particularly shown in this dissertation is the right to authorship. From a legal perspective, we must anticipate what are the consequences of this AI evolution and then incorporate them into our legal instruments. This process could take as long as eight years as the TRIPS did or be even lengthier,[117] and there is a probability that by the time the negotiations between the humankind are completed, the AIs will have already evolved into something superintelligent.[118]

While neither current legal framework nor legal theory could effectively cover the right to authorship of nonhumans, there are traces of ideas could support for this implementation as explained in section III(B). Admittedly many factors might affect the granting the rights for the AIs and other sentient beings, such as ethics and the acceptance of utilitarianism. However, I firmly believe that from the natural-right point of view, there is basis for the admittance of the rights of non-human beings.

Such radical change in jurisprudence could be comparable to that when human aborted the slavery regime and possession over another human being. I would doubt that anybody in this modern world will question about the rationale of that liberalism movement, and this could be the same when future people looking back to the non-human right movement. The law and legal theories are not something predetermined, and therefore as long as it is justifiable, I believe there are many other ways to interpret the law in advocating for non-human rights.

In doing this, undoubtedly there could be many adverse outcomes to human rights, particularly the rights of human authors. However, with proper assessment and planning, we could integrate the rights of other sentient beings into our legal framework without severely hampering the freedom of humankind. With an optimistic view, the integration of AIs into human society is inevitable and it could “bring out the best in human civilisation”.[119] That is why we should prepare for the coming of the next generation AIs.

VI. Bibliography

A. Cases

Naruto v Slater, 15-CV-04324-WHO 2016 WL 362231 (ND Cal 2016).

Naruto v. Slater, 888 F.3d 418 (9th Cir 2018).

Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir 1997).

B. Legislations

1 New Zealand

2 Canada

3 United Kingdom

4 Vietnam

Civil Code 2015

Law on Intellectual Property 2005.

C. Treaties

Berne Convention for the Protection of Literary and Artistic Works (opened for signature 9 September 1886).

Charter of Fundamental Rights of the European Union (signed 12 December 2007, entered into force 1 December 2009).

International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976).

Universal Declaration of Human Rights GA Res 217A (1948).

D. Books and Chapters in Books

Kathy Bowrey “Law, aesthetics and copyright historiography: A critical reading of the genealogies of Martha Woodmansee and Mark Rose” in Research Handbook on the History of Copyright Law (Edward Elgar Publishing, Incorporated, 2016) 27.

Hugh Collins The Marxist Approach to Law (Oxford University Press, 1984).

Pashukanis Evgeny “Chapter IV: Commodity and the Subject” in Selected Writings on Marxism and Law (1st ed, 1980).

John Finnis Natural Law and Natural Rights (Oxford University Press, 1980).

Matthijs Geuze “Some memories of the unique TRIPS negotiations” in The Making of the TRIPS Agreement: Personal insights from the Uruguay Round negotiations (WTO, 2015).

Alan Hunt “Marxist Theory of Law” in Dennis Patterson (ed) A Companion to Philosophy of Law and Legal Theory (Wiley-Blackwell, Oxford, UK, 2010) 350.

M Glen Johnson and Janusz Symonides The Universal Declaration of Human Rights (Unesco Pub, Paris, 1998).

Oliver Kramer Machine learning for evolution strategies (Springer, Switzerland, 2016).

John Locke and Lee Ward Two Treatises of Government (Hackett Publishing Company, US, 2016).

Lyman Ray Patterson Copyright in Historical Perspective (Vanderbilt University Press, 1968).

V Bettig Ronald Copyright Culture: The Political Economy of Intellectual Property (Westview Press, 1996).

The Compendium of U.S. Copyright Office Practices (U.S Copyright Office, 2014).

E. Journal articles

Yoshua Bengio “Machines Who Learn” (2016) 314 Scientific American 46.

David Braybrooke “The Relation of Utilitarianism to Natural Law Theory” (2003) 12 The Good Society 43.

Gary Chartier “Natural Law and Animal Rights” (2010) 23 Can J L & Jurisprudence 33.

Vedran Dunjko, Jacob M Taylor and Hans J Briegel “Quantum-Enhanced Machine Learning” (2016) 117 Phys Rev Lett 130501.

Catherine L Fisk “Authors at Work: The origins of the Work-for-Hire Doctrine” (2003) 15 Yale Journal of Law & Humanities.

Steven Forde “Natural Law, Theology, and Morality in Locke” (2001) 45 American Journal of Political Science 396.

Jane C Ginsburg “A Tale of Two Copyrights: Literary Property in Revolutionary France and America” (1990) 64 Tulane Law Review 991.

Jane C Ginsburg “People Not Machines: Authorship and What It Means in the Berne Convention” (2018) 49 IIC 131.

Aparna Gollapudi “Personhood, Property Rights, and the Child in John Locke’s Two Treatises of Government and Daniel Defoe’s Fiction” (2015) 28 Eighteenth-Century Fiction 25.

Marshall Grossman “The Fruits of One’s Labor in Miltonic Practice and Marxian Theory” (1992) 59 ELH 77.

Henry Hansmann and Marina Santilli “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis” (1997) 26 The Journal of Legal Studies 95.

John F Henry “John Locke, Property Rights, and Economic Theory” (1999) 33 Journal of Economic Issues 609.

Oscar Horta “What is Speciesism?” (2010) 23 Journal of Agricultural & Environmental Ethics 243.

Jinchang Wang “Unachievable Consciousnesses on Electronic Robots” in Proceedings for the Northeast Region Decision Sciences Institute (NEDSI) (paper presented to Northeast Decision Sciences Institute 2018 Annual Conference, Rhode Island, USA, January 2018) 839.

Justine Lacroix and Jean-Yves Pranchère “Was Karl Marx truly against human rights? Individual emancipation and human rights theory” (2012) 62 Revue française de science politique 433.

Amir h Khoury “Intellectual Property Rights for ‘Hubots’: On the Legal Implications of Human-Like Robots as Innovators and Creators” (2017) 35 Cardozo Arts & Entertainment Law Journal

Subhash Chandra Pandey “Can artificially intelligent agents really be conscious?” (2018) 43 Sādhanā 110.

Sam Ricketson “The 1992 Horace S. Manges Lecture - People or Machines: The Berne Convention and the Changing Concept of Authorship” (1991–1992) 16 Colum-VLA JL & Arts 1.

David Shaw “The ICMJE’s definition of authorship is illogical and unethical | The BMJ” [2011] The British Medical Journal.

Jaime A Teixeira da Silva “The ethics of collaborative authorship” (2011) 12 EMBO Rep 889.

F. Internet materials

Eleanor Aigne Roy “New Zealand river granted same legal rights as human being” (16 March 2017) The Guardian .

Galeon Dom and Houser Kristin “New AI Can Write and Rewrite Its Own Code to Increase Its Intelligence” (16 February 2017) Futurism .

Andrew Griffin “Saudi Arabia becomes first country to make a robot into a citizen” (26 October 2017) The Independent .

Andres Guadamuz “Artificial intelligence and copyright” (October 2017) WIPO Magazine

Catherine Jewell “Bringing AI to life” (September 2018) WIPO Magazine .

Christof Koch “How the Computer Beat the Go Master” (19 March 2016) Scientific American .

Fiona MacDonald “Scientists Put a Worm Brain in a Lego Robot Body - And It Worked” (11 December 2017) ScienceAlert .

Desmond Morris “Can jumbo elephants really paint? Intrigued by stories, naturalist Desmond Morris set out to find the truth” (22 February 2009) Daily Mail .

Antonio Regalado “Computers Could Be Conscious” (2 October 2014) MIT Technology Review .

Abu Sadat Md Sayem and Ali Pathan “Can Artificial Intelligence claim IP-ownership?” (29 May 2018) The Daily Star .

David J Slater “Sulawesi Monkey - photographs by David J Slater” .

Kevin Reilly Stuart Matthew “Google’s new AI can impersonate a human to schedule appointments and make reservations” (9 May 2018) Business Insider Australia .

Nell Watson “Questions and Comments on Machine Intelligence” Nell Watson Blog .

“Experts predict when machines will be better than you at your job” (2017) MIT Technology Review .

“Artificial intelligence and intellectual property: An interview with Francis Gurry” (2018) WIPO Magazine .

“Artificial intelligence system created at UNC-Chapel Hill designs drugs from scratch” (31 July 2018) The University of North Carolina at Chapel Hill .

“Wikimedia Commons” Wikipedia .

“Monkey selfie copyright dispute” Wikipedia .

[1] Universal Declaration of Human Rights GA Res 217A (1948).

[2] Charter of Fundamental Rights of the European Union, (opened for signature 7 December 2000, entered into force 1 December 2009), art 17.

[3] Unless the context requires a different understanding, for most parts of this dissertation I will use the term “right to authorship” (and in some cases in contracted form “authorship”) equivalent to “the right to be an author”.

[4] Mandelbrot set animation is the visualisation of a mathematical algorithm that results in stunning graphical arts without human interaction. See generally Darin (2001) “Copyrights in Computer-Generated Works: Whom, if Anyone, Do We Reward?”

[5] David J Slater “Sulawesi Monkey - photographs by David J Slater” .

[6] “Wikimedia Commons” Wikipedia .

[7] “Monkey selfie copyright dispute” Wikipedia .

[8] John F Henry “John Locke, Property Rights, and Economic Theory” (1999) 33 Journal of Economic Issues 609 at 44.

[9]

The Compendium of US Copyright Office Practices (US Copyright Office, 2014) at 68.

[10] The People for the Ethical Treatment of Animals (commonly known as PETA) is an American non-profit organization advocates for animal rights.

[11] Naruto v Slater, 15-CV-04324-WHO 2016 WL 362231 (N.D. Cal. 2016) at 6.

[12] Naruto v Slater, 888 F3d 418 (9th Cir 2018) at 3.

[13] The term intelligent here is used to refer to the ability of learning, reasoning, deciding like a human.

[14] Artificial neural network is a computer system that simulates the activity of a biological neural network of a biological brain, reflecting the process of thinking and deciding happens inside the brain. Neural network design can make a computer understand abstract ideas e.g. human languages, images. Neural network is a sub branch of Machine Learning, a field of computer science that gives the computer the ability of learn new things outside of its pre-defined knowledge/capability. See generally, Yoshua Bengio “Machines Who Learn” (2016) 314 Scientific American 46. Evolutionary algorithms (or meta learning) could replicate the biological evolution by generating mutation and selection to produce a better computer algorithm. See Oliver Kramer Machine learning for evolution strategies (Springer, Switzerland, 2016).

[15] Andres Guadamuz “Artificial intelligence and copyright” [2017] WIPO Magazine.

[16] “Artificial intelligence system created at UNC-Chapel Hill designs drugs from scratch” (31 July 2018) The University of North Carolina at Chapel Hill .

[17] Kevin Reilly Stuart Matthew “Google’s new AI can impersonate a human to schedule appointments and make reservations” (9 May 2018) Business Insider Australia .

[18] Andrew Griffin “Saudi Arabia becomes first country to make a robot into a citizen” (26 October 2017) The Independent .

[19] Go chess is a board game invented in China, which has approximately 10^170 possible board configurations (for comparison, it is more than the number of atoms in the observable universe). Go chess was used as a test the intelligent of an AI because in the case where it is impractical to calculate all possible moves, the AI has to continuously improvise according to the move of its competitor. Christof Koch “How the Computer Beat the Go Master” (19 March 2016) Scientific American .

[20] Koch, above n 19.

[21] Kramer, above n 14, 11.2; Galeon Dom and Houser Kristin “New AI Can Write and Rewrite Its Own Code to Increase Its Intelligence” (16 February 2017) Futurism .

[22] See Vedran Dunjko, Jacob M Taylor and Hans J Briegel “Quantum-Enhanced Machine Learning” (2016) 117 Phys Rev Lett 130501.

[23] See Jinchang Wang “Unachievable Consciousnesses on Electronic Robots” [2018] Proceedings for the Northeast Region Decision Sciences Institute (NEDSI) 839 at 850.

[24] Antonio Regalado “Computers Could Be Conscious” (2 October 2014) MIT Technology Review .

[25] Subhash Chandra Pandey “Can artificially intelligent agents really be conscious?” (2018) 43 Sādhanā 110 at 14.

[26] The Turing test is named after Alan Turing, an English mathematician and computer scientist, to test if a machine can perform intelligent behaviour to the degree that indistinguishable from that of a human.

[27] If the setup person intentionally creates a scheme where he/she wants other people involve in the act of taking picture, then the first individual shall be credited, as in Celebrity Pictures Ltd v B Hannah Ltd, [2012] EWPCC 32, [2012] All ER (D) 208 (Jul)

[28] Copyright, Designs and Patents Act 1988 (UK) ch 48 s 9(3)

[29] Catherine L Fisk “Authors at Work: The origins of the Work-for-Hire Doctrine” (2003) 15 Yale Journal of Law & Humanities.

[30] Abu Sadat Md Sayem and Ali Pathan “Can Artificial Intelligence claim IP-ownership?” (29 May 2018) The Daily Star .

[31] V Bettig Ronald Copyright Culture: The Political Economy of Intellectual Property (Westview Press, 1996) at 15.

[32] At 17.

[33] Lyman Ray Patterson Copyright in Historical Perspective (Vanderbilt University Press, 1968) at 4–5.

[34] Sam Ricketson “The 1992 Horace S Manges Lecture - People or Machines: The Berne Convention and the Changing Concept of Authorship” (1991–1992) 16 Colum-VLA JL & Arts 1 at 4–5.

[35] Jane C Ginsburg “A Tale of Two Copyrights: Literary Property in Revolutionary France and America” (1990) 64 Tulane Law Review 991 at 993.

[36] At 1001.

[37] Kathy Bowrey “Law, aesthetics and copyright historiography: A critical reading of the genealogies of Martha Woodmansee and Mark Rose” in Research Handbook on the History of Copyright Law (Edward Elgar Publishing, Incorporated, 2016) 27 at 30.

[38] Desbois M Henri “Le droit d'auteur en France” (3rd ed. 1978) as cited in Ginsburg, above n 35, at n 7.

[39] At 1014.

[40] At 1019.

[41] Copyright Act 1994 (New Zealand) § 5; Copyright, Designs and Patents Act 1988 (UK) § 9; Law on Intellectual Property 2005 (Viet Nam) art 13 (1).

[42] Excluding the definition of author used by International Committee of Medical Journal Editors that received a lot of critiques relating to recognition of co-authorship in medical research. For instance, it is deemed unethical and illogical (See, David Shaw “The ICMJE’s definition of authorship is illogical and unethical” [2011] The British Medical Journal); or it set unrealistic standards to recognise collaborative authorship (See, Jaime A Teixeira da Silva “The ethics of collaborative authorship” (2011) 12 EMBO Rep 889).

[43] Berne Convention for the Protection of Literary and Artistic Works (opened for signature 1886).

[44] Ricketson, above n 34, at 3; Jane C Ginsburg “People Not Machines: Authorship and What It Means in the Berne Convention” (2018) 49 IIC 131 at 131.

[45] Ricketson, above n 34, at 4.

[46] At 14–17.

[47] International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 19 December 1966, entered into force 3 January 1976), art 7.

[48] CESCR, 27th session (2001), “Human Rights and Intellectual Property”, Statement by the CESCR, 29 November 2001, E/C.12/2001/15, at para. 6.

[49] The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Preamble

[50] Since judicial subject is not a common term used in all legal theories, I will borrow this term from Marxist legal theory as to refer to any subject that has legal rights and/or obligations as stipulated by the law.

[51] While Marxism itself is not a jurisprudential philosophy, within this dissertation I use the term Marxist legal system to refer to the legal systems that built on Marxist perspective of socioeconomic, including the modern variant like the socialist-oriented market economy viewpoint that is being used in Vietnam.

[52] Hugh Collins The Marxist Approach to Law (Oxford University Press, 1984) at 13.

[53] At 11.

[54] See generally, Pashukanis Evgeny Obshchaia teoriia prava i marksizm: Opyt kritiki osnovnykh iuridicheskikh poniatii (Moscow, 1924) (translated ed: Peter B. Maggs (translator) Pashukanis Evgeny The General Theory of Law and Marxism (London & New York, 1980))

[55] See also, Pashukanis above n 42, at chapter IV.

[56] Civil Code 2015 (Vietnam), art 105 (1)

[57] At art. 115

[58] Law on Intellectual Property 2005 (Viet Nam) art 19.

[59] Alan Hunt “Marxist Theory of Law” in Dennis Patterson (ed) A Companion to Philosophy of Law and Legal Theory (Wiley-Blackwell, Oxford, UK, 2010) 350 at 356.

[60] Justine Lacroix, Jean-Yves Pranchère Karl Marx Fut-il vraiment un opposant aux droits de l'homme? Émancipation individuelle et théorie des droits (2012) Vol 62 Revue française de science politique 433 (translated ed: Sarah-Louise Raillard (translator) Justine Lacroix, Jean-Yves Pranchère Was Karl Marx truly against human rights? Individual emancipation and human rights theory (2012))

[61] Hunt, above n 59, at 357.

[62] John Finnis Natural Law and Natural Rights (Oxford University Press, 1980) at 198.

[63] Gary Chartier “Natural Law and Animal Rights” (2010) 23 Can J L & Jurisprudence 33.

[64] Finnis, above n 62, at 203.

[65] At 204.

[66] At 276.

[67] John Locke and Lee Ward Two Treatises of Government (Hackett Publishing Company, Inc, US, 2016) at para 26 p.135.

[68] The term “good” as in “human good” used by Finnis is very complex, as explain in Finnis, above n 49, at chapter IV. For the purpose of this dissertation, I use this term good as equivalent to inner value.

[69] Finnis, above n 62, at 83–84.

[70] David Braybrooke “The Relation of Utilitarianism to Natural Law Theory” (2003) 12 The Good Society 43.

[71] To be precise, Marxist legal theory does not directly favour in utilitarianism, however it recognises the dynamic between the law and the economy, where the law should improve the economy and vice versa. See, Hunt, above n 52, at 63.

[72] Finnis, above n 62, at 205.

[73] Eleanor Aigne Roy “New Zealand river granted same legal rights as human being” (2017) The Guardian .

[74] At n 18.

[75] This is not to say that the rights of a legal entity are attached with an individual, as the idea of legal person is to separate the obligations of the organisation from that of the founder(s).

[76] That in fact it created a conflict in recognition of universal human rights in The Universal Declaration of Human Rights. See M Glen Johnson and Janusz Symonides The Universal Declaration of Human Rights (Unesco Pub, Paris, 1998) at 43.

[77] See, Marshall Grossman “The Fruits of One’s Labor in Miltonic Practice and Marxian Theory” (1992) 59 ELH 77.

[78] John Locke (1632 - 1704) was a famous English philosopher for the ideas that set the foundation for modern liberalism.

It is noteworthy that the Lockean natural law is not entirely based on the classic viewpoint of natural law theory such as Acquinas’s. See Steven Forde “Natural Law, Theology, and Morality in Locke” (2001) 45 American Journal of Political Science 396 at 397–398.

[79] Locke and Ward, above n 67, at 135.

[80] Aparna Gollapudi “Personhood, Property Rights, and the Child in John Locke’s Two Treatises of Government and Daniel Defoe’s Fiction” (2015) 28 Eighteenth-Century Fiction 25 at 32.

[81] Ronald, above n 31, at 19–20.

[82] Patterson, above n 33, at 70.

[83] At 70–71.

[85] Berne Convention for the Protection of Literary and Artistic Works art 14bis.

[86] Fisk, above n 29.

[87] At 68.

[88] Ricketson, above n 34, at 16.

[89] The Universal Declaration of Human Rights art 17.

[90] Henry, above n 8, at 617.

[91] At 613.

[92] Amir h Khoury “Intellectual Property Rights for ‘Hubots’: On the Legal Implications of Human-Like Robots as Innovators and Creators” (2017) 35 Cardozo Arts & Entertainment Law Journal 635 at 652.

[93] Ginsburg, above n 35, at 1023.

[94] Oscar Horta “What is Speciesism?” (2010) 23 Journal of Agricultural & Environmental Ethics 243 at 247.

[95] At 247–248.

[96] For instance, according to Horta (2010) at 248, Iris Marion Young in “Justice and the Politics of Difference” (1990) did not use the term discrimination to describe act of racism or sexism.

[97] See Dion, Michel (2000) in “The Moral Status of Non-human Beings and Their Ecosystems” Ethics, Place and Environment, Vol. 3, No. 2, 221-229 at 221.

[98] Urantia Foundation v Maaherra, 114 F3d 955 (9th Cir 1997) at 17.

[99] I am referring to the fact that the encounters between the explorers from the Western countries and the native people in the American continents which led to many atrocities in the 16th century and later on, e.g. the extinction of the Incas after the landing of the Spanish, or the Indian massacre after the colonisation of the European on American soil.

[100] Berne Convention for the Protection of Literary and Artistic Works art 6bis; arts 8-15.

[101] International Covenant on Economic, Social and Cultural Rights art 15(1)(c).

[102] See also, Finnis, above n 62, ch VIII.3.

[103] The Universal Declaration of Human Rights art 25(1).

[104] The Universal Declaration of Human Rights art 26.

[105] Under the right to disclose the work, the author can determine if and when to display the work to the public. Henry Hansmann and Marina Santilli “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis” (1997) 26 The Journal of Legal Studies 95 at 136.

[106] Desmond Morris “Can jumbo elephants really paint? Intrigued by stories, naturalist Desmond Morris set out to find the truth” (2009) Daily Mail .

[107] “Artificial intelligence and intellectual property: An interview with Francis Gurry” (2018) WIPO Magazine .

[108] Catherine Jewell “Bringing AI to life” (2018) WIPO Magazine .

[109] Aristotle Metaphysics Perseus Digital Library at 13.1078a.

[110] Research showed that it could theoretically be possible to scan and upload the neural signals in a brain into a computer, thus creating a consciousness within a computer without programming. See Fiona MacDonald “Scientists Put a Worm Brain in a Lego Robot Body - And It Worked” (2017) ScienceAlert .

[111] From a religious and philosophical perspective, Marcelo Sánchez Sorondo in “The Status of the Human Being in the Age of Science” (2008, Vatican) at 10 seemed to agree with this idea.

[112] There is no such ongoing project, but it is theoretically possible to do so. See Virginia Hughes “Return of the Neanderthals” (6 March 2013) National Geographic News .

[113] See also Kramer, above n 14, 2.2.

[114] Nell Watson “Questions and Comments on Machine Intelligence” Nell Watson Blog .

[115] The Universal Declaration of Human Rights art 3.

[116] “Experts predict when machines will be better than you at your job” (2017) MIT Technology Review .

[117] While the draft of the TRIPS agreement itself was mostly finished by 1992, the Uruguay round where it was negotiated took place from 1986 to 1994; and it was adopted into the Marrakesh Agreement as the foundation of World Trade Organisation in 1994. Matthijs Geuze “Some memories of the unique TRIPS negotiations” in The Making of the TRIPS Agreement: Personal insights from the Uruguay Round negotiations (WTO, 2015) at 124.

[118] A superintelligent AI is the AI that can outperform human counterpart in understanding the world, creating and solving problems. See Jewell, above n 106.

[119] Jewell, above n 106.

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