Inventor’s Legal Liability upon the Invention of Artificial Intelligence in Indonesia

ABSTRACT


INTRODUCTION
Artificial Intelligence (AI) has become the most highlighted issue in terms of technology in the last few years. Human civilization has shifted from the Internet of Things (IoT) to artificial intelligence. The invention of AI in health, education, business, and industry is considered a significant step in human civilization. Indeed, it is expected to be more developed. However, along with the AI invention helping human's daily activities, criminal cases "committed" by AI are also found. In 1981, an employee of a Japanese motorcycle company died because of the robot used there. 1 Another example, in 2015, a robot named Random Darknet Shopper (RDS) purchased ecstasy. 2 In Arizona, 72 Varia Justicia Vol. 18 No. 1 (2022) 2018, a self-driving car hit a woman which caused her died. 3 AI is a system created by humans. In intellectual property rights, AI is protected through copyrights and patents. Meanwhile, from the legal perspective, a computer program containing technological inventions can be protected through a patent, although the computer program has been protected under the copyright mechanism. 4 An inventor who invents and holds the patent and/or copyright acquires an exclusive right to commercialize the creation or invention.
In 2015, a robot completed with artificial intelligence or a bot named RDS was created by a group of Swiss artists. They created a project where RDS was given a bitcoin equal to US$100 to go shopping randomly at a dark web marketplace in Agora. One of the purchases made by the RDS was a package of ecstasy. Not long after the incident, the computer known to have created the robot was confiscated by the Swiss police. Similarly, bots were mushrooming in Indonesia in 2016, spreading hoaxes containing news about a particular political figure. It has caused anxiety since the utilization of AI has not been explicitly regulated. Hence, AI has the potential to be misused in criminal cases.
To understand criminal responsibility, it is necessary to observe the concept of committing a crime. It is an action prohibited by law. 5 However, criminal responsibility also requires the actus non facit reum nisi mens sis rea principle. The fault refers to two significant concepts: psychological condition and a particular relation between physical and action. 6 Therefore, a question arises. Where can we observe and ask for non-human (AI) responsibility? The present study focused on the inventor's responsibility upon the patent/invention in the form of artificial intelligence (AI). The inventor's legal responsibility for the crime committed by artificial intelligence and whether the Indonesian laws regulated the matter.  Vol. 18 No. 1 (2022) by the European Union Committee to support the AI strategies in Europe: 10 "Artificial intelligence (AI) systems are software (and possibly also hardware) systems designed by humans(2) that, given a complex goal, act in the physical or digital dimension by perceiving their environment through data acquisition, interpreting the collected structured or unstructured data, reasoning on the knowledge, or processing the information, derived from this data and deciding the best action(s) to take to achieve the given goal. AI systems can either use symbolic rules or learn a numeric model, and they can also adapt their behavior by analyzing how the environment is affected by their previous actions."

RESEARCH METHOD
In short, AI is a system in the form of software and hardware created by humans to learn numeric models. Further, AI can decide what to do next based on the previous action.
An experiment by Alan Turing in 1950, known as the "Turing Test," is considered a milestone in the research and development of AI. 11 The Turing Test is a way to know if a machine is categorized as a smart machine from its distinctive human features in a particular condition. Interestingly, the system installed in the machine has an autonomous ability to decide without human intervention. The key to modern AI is to run without human intervention. Hence, it is necessary to distinguish between "automatic" and "autonomous" activities. 12 To compare, nowadays, vehicles are completed with "automatic" functions, such as cruise control for the accelerator. The function is controlled by the driver. "Autonomous" in the context is when the vehicle can decide for itself without the driver's intervention. Indeed, it can decide even when the driver is not around. 13 To date, a system completed with an autonomous AI can function based on their learning. Hence, it is possible that AI can create something.

AI in the Perspective of Copyrights and Patent in Indonesia
Substantively, creations can be given a copyright when such works proven to have the eligibilities as a copyright such as originality, creativity, and it is realized in the real form (fixation). 14 The notion of "originality" is defined as a human creation that comes from the fruit of one labor. Copyright protection can only be given to a work that has a tangible form, not just an idea. AI industry is currently entering the 3A era, namely Vol. 18 No. 1 (2022) Advanced, Automated, and Autonomous. 15 Traditionally, copyright is granted to copyrighted works created by the Author for his unique and personal thoughts, ideas, and imagination. Likewise, in the patent regime, the elements of novelty and inventiveness are the core criteria for obtaining a patent. With the current development of AI as referred to in the 3A era, for the first time in human history the creation or invention is made by an automated AI system without any human intervention.
In 2016, a robot with an AI wrote a novel, which attained a literary award in Japan. 16 Similarly, the interaction between AI and patents in a technological era is increasing. AI has been widely used to simplify the primary function of humans and decrease human intervention. Robot Ross 17 is one of them. Ross is the first robot utilized by a law company in Washington to handle a bankruptcy case.
United Kingdom is the first country to encourage the concept of a patent for AI as an inventor, called "DABUS." It is a system recognized by the Intellectual Property Board in South Africa and Australia as an "inventor" of fractal geometrical food containers. The system was created by Stephen Thaler. 18 It is surprising because AI in any jurisdiction globally has not been recognized as a legal subject. Indeed, a legal subject by definition is a natural person/individual or legal person/rechtpersoon. In the DABUS project, Australia's Patent law does not explicitly mention that the inventor shall be an "individual." Hence, recognizing the patent produced by the AI has encouraged them to create new terminology, "AI-Agent." There has been no terminology to categorize AI as a subject.
In the Law Number 28 of 2014 regarding Copyrights ("UUHC"), the Author (Article 1 paragraph 2) is defined as "an individual or a group of people, individually or collectively, produces a creation with a particular characteristic and private in nature." Besides, in Law Number 13 of 2016 ("Patent Law"), an Inventor is defined as "a person or a group of people who collectively implemented an idea in the form of activities that resulted in an invention." Hence, from the perspective of Intellectual Property laws in Indonesia, AI shall not be given a status as a legal subject. Instead, it is treated as a legal object. In general, AI is a software/computer program. In article 1 paragraph 9 of UUHC, an invention in the form of a computer program is defined as "a set of instructions expressed in the form of language, code, scheme, or any form aimed to let the computer works in accordance with the functions to produce a particular product." Moreover, in Article 1 paragraph 2 of the Patent Law, the invention is "an inventor's idea manifested 15 Shlomit Yanisky-Ravid and Luis Antonio Velez-Hernandez, "Copyrightability of Artworks Produced by Creative Robots and Originality: The Formality-Objective Model," Minnesota Journal of Law, Science, and Technology 19, no. 1 (2018 Vol. 18 No. 1 (2022) in a problem-solving activity specifically in the field of technology in the form of a product or process or perfection and development of a product or a process." On the one hand, AI is the product of the inventor. In this case, AI in the form of a computer program is categorized as an invention. However, it should be further noted that if AI is considered a novelty in the field of technology, it can be categorized as an invention. On the other hand, AI with "autonomous" ability can control and create something in the future. If creation is invented by an AI, who is the inventor? In another case of technological invention, despite human intervention in installing a program into the AI's algorithm, who is the inventor of the product created by AI due to its "selfdecision"?

Legal Liability of the Inventor in the Perspective of Penal Law
In Indonesia, Article 1 paragraph (3) of Patent Law number 13 of 2016 mentioned that an inventor should be a person. Therefore, in the present study, AI is categorized as an object if the inventor refers to the inventor of the AI system.
The concept of criminal liability applies not only in legal discipline. Indeed, it includes moral values held by a group of people in society. Criminal responsibility is known as a liability in the philosophy of law. Roscoe Pound stated that criminal liability is a responsibility to be paid by the actor to the person at a loss. 19 Further, the criminal liability definition is also proposed by other experts. According to Simons, the ability to take responsibility is a particular psychological condition where an application of punishment, either from the general point of view or the person, is justified. A perpetrator shall be responsible for his action if he knows or is aware that the deed is against the law and can determine his action deliberately. 20 Different from Simons, Van Hamel proposed that criminal liability is a normal psychological condition and acquisition leading to three abilities. The first is the ability to understand the meaning and consequence of his action. The second is the ability to recognize the deeds as against the community order. The third is the ability to determine his will to do an action. 21 In addition, Pompe defined it as limited from several components, such as the thinking ability of the actor that allows him to control his mind and determine his will. Besides, the actor understands the meaning and consequence of his behavior and determines his will according to his judgment (of the meaning and consequence of his action). 22 The definition of criminal liability reveals that a criminal's responsibility is imposed on a criminal based on the psychological condition and will of the person in committing a crime. A person is said to commit a crime if the action is proven to be in the category Vol. 18 No. 1 (2022) of a crime based on the applicable laws. However, a person proven to commit a crime cannot be directly sentenced. Criminal liability also considers the fault elements. 23 The criminal liability development has increased. In the development, some theories of criminal liability abandon the fault elements in a criminal case. The principle of "no crime without guilt" is not absolute. However, the extent to which the doctrine infringes the fundamental principle of penal law needs to be further observed. 24 Criminal liability contains the principle of Geen straf zonder schuld; Actus non facit rum nisi mens sir rea. It means that a person cannot be punished if there is no crime. In other words, when a person commits a crime, it needs further investigation of whether there are fault elements. If the elements are not fulfilled, the perpetrator shall not be punished.
Criminal liability is a mechanism employed to determine if a defender or suspect shall be responsible for a crime. Putting a person responsible for a crime does not mean that he can be punished. It needs a comprehensive understanding of the context of the crime. A criminal liability means that the perpetrator is not only rightfully sentenced but also rightfully accused. 25 Criminal liability is the mechanism of sentencing a criminal. Besides, it is a condition of the perpetrator when committing a crime. Criminal liability conveys the perpetrator's condition upon the crime and the sanction imposed on him. 26 In criminal law, the theory of causality is closely related to the nature of unlawful acts, mistakes, and criminal culpability. These three things can all be established as the norm in criminal behaviour at the same time. According to Simons, a criminal act is one that is punishable by law, illegal, and committed by someone who is responsible. 27 Furthermore, from both a general and a personal perspective, the ability to be responsible might be viewed as a psychological state that justifies the application of a criminal effort. A person can be held accountable if: a) he is aware that his activities are illegal; and b) he is able to establish his will based on that awareness. 28 A criminal liability is determined by the perpetrator who consciously wills. Essentially, such liability emerged as the result of a criminal act done by the perpetrator that causes injury to others. According to Van Hamel, the ability to be responsible is a state of psychological normalcy and an intelligence that includes three abilities: a) Understanding the value of one's own actions' repercussions. b) Aware that his acts, in 78 Varia Justicia Vol. 18 No. 1 (2022) the eyes of the community, are not acceptable. c) Capable of determining his own intentions for his activities. 29 In this instance, the development of "prohibited consequences" is the formulation of a physical offense. Conceptually, causality can only exist if there is an action or set of acts that result in illegal consequences. In this instance, causation pertains to actus reus.
In this scenario, criminal culpability based on causation may be connected to the following: 30 1. Creator/Developer of AI Those who develop and create AI-based machine programs are obviously capable and aware of this technology's applications. The developer of artificial intelligence should be aware that the AI that will be deployed must be able to predict potential outcomes and be prepared with countermeasures, particularly in the event of a criminal conduct.

AI Users
Users of AI-machine programs may also be held legally liable for the consequences of their actions. Users of artificial intelligence are the movers and actors who engage in the usage of the software; hence, if a mistake results in a criminal conduct, the user must also be held accountable. Errors associated with causality pertain to the perpetrator's capacity to easily and accurately foresee the results. Predictability of the consequences by the offender indicates that the perpetrator is capable of anticipating the outcomes.

The Analogy of Corporate Liability and the Inventor
The comprehension of the scope of a corporation cannot be achieved without understanding the definition of a corporate. The word "corporate" is derived from the Latin "corporation," meaning a result of an embodiment, combining in one body. Further, it is a body resulting from a human's deed against the human body in a natural way. 31 The word "corporation" was a new term in Law Number 5 of 1997 regarding Psychotropics. It was influenced by the concept used in the Criminal Code in 1993. Article 1, paragraph 13 of the laws mentioned that a "corporation is an organized group of people/wealth, both legal and non-legal." The corporate scope based on the laws is broad because it includes all kinds of business entities, both legal and non-legal. Based on the definition, a group of people is categorized as a corporate with the following requirements. 1. An organized group 2. Consisting of people/wealth 3. Legal and non-legal A corporate is a new term in criminal law because the Indonesian Penal Code does not regulate it as a subject. The recognition of a corporate as a criminal legal subject cannot be separated from the development and progress of civil law that has generated a business entity, such as Maatschap, CV, Firm, Foundation, Cooperation, and Limited Liability Company. It is different from Law Number 7/Drt/1955 regarding Economic Crimes, where a corporation is recognized as a legal subject and is subject to criminal liability. Further, Abidin Farid emphasized that when a corporation is recognized as a legal subject, its scope includes the private corporation and the municipal corporation. 33 A corporation is also known as Corporate (Dutch), Korporasi (Indonesian), Corporation (Germany), and Corporation (Latin). 34 "Similar with other words ended in "tio," "Corporation" is classified as a noun (Substantivum), rooted from a verb "Corporare," which was mostly used by the people of the Middle Ages and after." 35 The term "corporare" comes from the word "corpus," meaning "body." Hence, it can be concluded that "corporation" refers to embodying or the process of embodiment. "Corpora-tio" means the result of embodiment. 36 The word "corporation" is a common term used by experts of penal law to refer to another concept in the discipline. In particular, civil law is called "legal entity, or Rechtspersoon in Dutch. 37 In his book General Theory of Law and State, Hans Kelsen defines a corporation as a group of individuals treated by law as one unity, a person with rights and obligations different from the rights and obligations of the individuals establishing it. A corporation is viewed as a person because the regulation has established particular rights and obligations regarding the interest of the corporate members. However, the rights and obligations are not the rights and obligations of the members. The rights and obligations are understood as the rights and obligations of the corporation. 38 Corporate criminal liability is aimed to reveal a significant consequence to the leader, allowing him to manage the corporation effectively. Hence, the corporation stays on track of its establishment and operates based on its obligations. Corporate liability has similar purposes with criminal liability. 39 1. To handle and prevent future crimes; 80 Varia Justicia Vol. 18 No. 1 (2022) 2. To provide punishment representing the community's obligation to punish any person causing damage; 3. To rehabilitate the corporate criminals 4. To provide transparent, predictable, and consistent punishment based on the principles of criminal law in general; 5. To ensure efficiency, and 6. To provide justice Corporate criminal liability is necessary because it may cause injustice if the companies breaching the regulation are free from the sanction upon the damage they cause to society. The corporation responsible for the crime is the management. 40 Corporations as a legal subject may be imposed to responsibility based on the applicable laws or other provisions or the action or negligence of the directors, staff, or agents. Nevertheless, the responsibility is not directly imposed on the corporation because it needs further investigation of the violation. It is necessary to observe the persons who have committed the fault or negligence. 41 To date, there are three models of liability: 42 1. The corporate management commits the crime, and the management shall be responsible for it; 2. The corporation commits the crime, and the management shall be responsible for it; and 3. The corporation commits the crime and shall be responsible for it. While, the theories developed in criminal liability have been sufficient to accommodate the punishment against the corporation. However, the researchers focused on two theories: vicarious liability and identification.
Vicarious Liability is a doctrine underlying one of the criminal liabilities for a corporate. It explains the legal responsibility of one person for the wrongful acts of another 43 . It refers to the legal responsibility upon the acts by another person in the scope of work or position 44 . Further, vicarious liability is based on the employment principle, meaning that the employer is the main person in charge of the employees. 45 Vol. 18 No. 1 (2022) The second theory is identification, which can be observed from two perspectives: broad and narrow definition 47 . The doctrine is held by the Anglo-Saxon countries 48 . The theory assumes that all legal and illegal actions committed by the high-level manager or director shall be identified as corporate actions. 49 Identification doctrine also justifies the responsibility imposed to the corporation, although it is not an entity capable of committing a crime and it is impossible to commit mens rea. 50 Other theories can be used in corporate criminal liability. However, the researchers focused on using vicarious liability and identification theories.
The difficulty to implement vicarious liability doctrine for a crime done by AI is, no human can choose which algorithms execute by AI. 51 In principle, AI works based on algorithms and autonomously decides the output to be taken. As in the machine learningprinciple, human only giving inputs to AI for AI then "learn" by itself the inputs available. The historical precedent shows that corporations in the past given limited responsibility. However, with the advance of legal need, there must be "someone" who should accountable for crimes done by corporations. 52 Hence, the doctrine for vicarious liability emerged as to punish the party who is responsible for such crime. The analogy for finding "someone" who is liable in the case of AI could be done with the same approach. Inventor, as the one who creates code for the program-AI system-must hold the liability when his or her program cause harms to the victims. However, further assessment of this theory must be done since it is not simply can be proclaimed that Inventor as one in the chain of AI hold full responsibility for his or her AI invention.
Based on the theories, the legal responsibility of a crime or acts against the laws committed by an Artificial Intelligence can be imposed on the patent's inventor. The emergence of artificial intelligence has inevitably shifted the regulation in the future. The lawmakers need to prepare to formulate the regulations related to Artificial Intelligence in Indonesia.

CONCLUSION
In Indonesian laws, Artificial Intelligence cannot be treated as an inventor, at least in the applicable laws on the patent. In the event that an artificial intelligence commits a crime in Indonesia, the inventor is the one to take responsibility, both in criminal and civil