Amid the stormy development of Artificial Intelligence (AI) in this modern material world, the intellectual property laws in countries around the world in general and Vietnam in particular are facing regulatory gaps. These gaps pose a multitude of challenges for lawmakers in protecting intellectual property rights. Unlike rights in rem (the owner’s rights over their tangible property) or rights in personam (the creditor’s rights over the debtor), intellectual property rights concern intangible assets — specifically, the author rights over inventions and innovations. The value of intangible assets lies in what is derived from human creative activity. Can a work generated by AI be protected by law in terms of its author rights? If so, who would be the rightful holder of such rights?

Vietnam is developing a National Strategy for Development and Application of Artificial Intelligence with vision to 2030, as outlined in Decision No. 2259/QĐ-BTTTT dated December 7, 2022 by the Ministry of Information and Communications. This strategy aims to develop AI for use in various sectors, including healthcare, education, finance, agriculture and etc. Therefore, establishing a legal framework to govern AI-generated works is now one of the most urgent issues.

Current laws

Vietnam’s Intellectual Property Law (IP Law) of 2005 has undergone three amendments (in 2009, 2019, and 2022). However, it still does not contain any provisions addressing AI or AI-generated works.  Under the current IP Law, a protectable work must be created by a human author in a direct manner, and its author rights come into existence at the moment the work is created and comes to exist in a determined material form. Regarding the holder of author rights, the law stipulates that only the author (a person), co-authors (several persons), or the organization (be it a legal person or non-legal person) that gives assignments to or enters into contracts with an author may be recognized as the holder of author rights. Even international treaties such as the Berne Convention only protect works created by human authors. Similarly, the TRIPS Agreement contains no provisions related to AI-generated works. In the United Kingdom, the law does provide protection for computer-generated works. However, the author behind such works must be a human, i.e. the person who writes the program. That being said, authors of computer-generated works are not entitled to certain author rights, such as the right to be identified as the author when the work is copied or disseminated, or the right to protect the integrity of the work. Computer-generated works are protected for only 50 years from the date of creation, rather than the lifetime of the author plus 70 years from his/her death as is the case with traditional artistic works. Thus, the UK law partially recognizes works generated by machines under humans’ command, but such works do not give rise to the full spectrum of author rights afforded to the works created directly by human authors.  The U.S. law only protects the works created by humans; works independently generated by AI are not eligible for legal protection. Specifically, the Court of the District of Columbia has ruled in the case of Thaler v. Perlmutter that a work created by AI without human creativity does not give rise to any author right. This decision aligns with the guidance issued by the U.S. Copyright Office regarding author right registration, which states that a work must be the result of direct human authorship in order to be protected. Accordingly, both Vietnamese laws and the prevailing international practice continue to affirm that creativity must involve a human element.

Identifying legal issues

The first question is: Can AI be considered as an author? Under the current IP Law, it can be definitively stated that AI is not a human being and therefore cannot be recognized as the author of a creative work, nor can it be the holder of author rights. The second issue concerning AI-generated works is the need to clearly define the roles of the individuals involved — such as the programmer, the system administrator, and the prompt engineer. Among these individuals, who should be considered as the author? The third issue concerns originality. AI-generated works are typically derived from pre-existing datasets. Therefore, can such works be regarded as creative works by themselves? Can they be considered as original works? Finally, with respect to legal liability, if an AI-generated work contains offending contents or AI unlawfully uses copyrighted data, who will be held liable?

Currently, in the United States, there is a “high-profile” lawsuit between The New York Times and Open AI & Microsoft. Accordingly, The New York Times alleges that Open AI & Microsoft used millions of copyrighted articles from The New York Times to train GPT without permission nor paying, and that there are contents coming out almost verbatim from the original articles, even cases of patchwork resulting in falsified information. In a rebuttal to The New York Times, Open AI & Microsoft pretends that the data used by Open AI & Microsoft are publicly available, meaning that the data are neither intercepted, nor require logging in or paying. The contents in question are not copied but have been transformed, meaning that the data has been synthetized into a new work, not reprinted or copied. In addition, Open AI & Microsoft also claims that they are entitled to the fair-use exception under US copyright law. Similar to US law, Article 25 of the Vietnamese IP Law stipulates exceptions that are not considered as copyright infringements, such as fair use of a work for scientific research, teaching, commenting, writing, illustration in one’s own work, etc. However, fair use must not negatively affect the original work.

Reverting to the above lawsuit, although the verdict is yet to be pronounced, it can be considered as a typical AI lawsuit whose verdict will be valuable experience in shaping the legal framework on copyright for works created by AI.

Amending the IP Law to keep up with the development of AI

In the AI ​​era, the law needs to clarify the concepts of “author” and “rights holder”. Should AI be recognized as a creative subject? If not, who will be recognized as the author of the work created by AI? the programmer? the administrator or the prompt engineer? Or is it necessary to establish a “co-authorship” mechanism for AI works? If, in case of the author right, the law provides for the interaction and sharing of benefits between the author right and related rights (performers; record producers; broadcasting organizations) for audio and video recordings, then for AI-created works, should the law also stipulate a regime of sharing rights between subjects participating in the process of creating AI works such as data providers, programmers, managers, especially in consideration of the The New York Times versus Open AL & Microsoft lawsuit. The law needs to clearly set up a mechanism for protecting input data used to train AI models such as: in which cases using copyrighted data for training is an offense and which cases would be considered as reasonable exceptions (fair use). In addition, the law needs to establish a mechanism for tracing the origin of content, specifically the obligation of the organization providing the AI ​​platform to keep track of input data and generated contents; provide information to competent authorities when there is a dispute. Develop a separate registration mechanism for artificial intelligence works such as allowing registration to establish rights to AI-created works on the basis of honest and public disclosure of human contributions. And last but not the least, a legal liability mechanism should be created for a clear definition of the responsibilities of the owner, the programmer and the exploiter and operator of the AL system.

In short, Vietnam still does not have clear legal provisions related to intellectual property rights for AI. Legal issues related to AI-created works must be based on the current protection framework (author right, patent, trademark). However, in the context of AI being a core technology, building a legal framework on IP for AI is extremely urgent in the coming time. It is time to (i) Have a legal definition of “AI-created works”; (ii) Expand the mechanism on author right holders; (iii) Establish a legal liability mechanism between parties involved in the process of programming – operating management – exploiting AI systems.

This article by Mr. Le Quang Vy titled “Law on protection of author rights in works generated by Artificial Intelligence (AI)” published in The Saigon Times, No.37-2025 (1.813) on September 11, 2025.