Artificial intelligence – introductory thoughts on the legal issues

Whenever there is a wave of innovation, in the absence of statute, the Courts necessarily apply old world legal principles to the new technology.  This was certainly the case when social media and online business became mainstream.  Similarly the law in Australia that applies to bitcoin and the blockchain has left the promoters of initial coin offerings (ICO’s) struggling to understand their legal position – see our article titled:  “What is an initial coin offering”.  The advent of artificial intelligence (Artificial Intelligence or AI) however creates somewhat more challenging legal issues to be considered by technology lawyers whose client’s seek to develop applications with embedded AI.

What is artificial intelligence?

According to Wikipedia:

“artificial intelligence or Aim is intelligence demonstrated by machines, in contrast to the natural intelligence (NI) displayed by humans and other animals.  In computer science AI research is defined as the study of “intelligent agents”: any device that perceives its environment and takes actions that maximize its chance of successfully achieving its goals.[1] Colloquially, the term “artificial intelligence” is applied when a machine mimics “cognitive” functions that humans associate with other human minds, such as “learning” and “problem solving”.[i]

It was said by Wikipedia that the scope of AI is often disputed when a task becomes routine, such as optical character recognition (OCR).  As at 2017, the tasks which were recognised as AI include:

“successfully understanding human speech, competing at the highest level in strategic game systems (such as chess and Go), autonomous cars, intelligent routing in content delivery network and military simulations”.[1]

An alternative definition of Artificial Intelligence is proposed by the Oxford Dictionary as “the theory and development of computer systems able to perform tasks that normally require human intelligence and judgment, such as visual perception, speech recognition, decision-making, and translation between languages”.[2]

The legal threshold issue – ownership

In considering the legal issues perhaps the first issue which frames many of the others is ownership.  Who owns the software which the AI operates on?   There are open source platforms which contain “AI engines” that allow for a particular users responses to be ‘learned’ resulting in a form of AI as it relates to a particular users circumstances.  Other AI software is proprietary and as a result is owned by a particular software developer.

The legal issues raised by Artificial Intelligence

Each use of AI for different applications raises different legal issues, so a precise taxonomy is somewhat difficult to proffer.  That said, for the purpose of this article we propose the following broad classification system;

  • Liability;
  • Competition and consumer issues
  • Intellectual property;
  • Data – ownership, security and information privacy;
  • Jurisdiction of law

A lot of discussion in the AI community raise the issue of morality and ethics as needing consideration, however this is not something we consider as a legal issue per se.

Competition and consumer law issues

The existing Australian framework for regulation of issues by the Competition and Consumer Act 2010 (Cth)(CCA) may be stretched by the advent of AI and Robots.  That said, it may also be a fertile place upon which to consider amendments to this legislation to deal with the advent of AI.  Consider the following problems which we may face in the future:

  • could the Robots services not be fit for purpose?
  • could Robots be involved in collusion?
  • could third line forcing be an issue for the Robot that transacts on behalf of the user?
  • could a robot engage in misleading and deceptive conduct or will this depend on who owns the Robot?

The implications are many and varied.

Intellectual property

The advent of AI may pose new challenges for the traditional notions of copyright and patent law for example   Consider a Robot that assists with the production of an academic paper or assists to write a patent.  Could this Robot (assuming it has developed personality) become a joint or sole owner of the copyright and an inventor in the case of a patent?   Will the Robot then have an obligation to initiate proceedings in case of infringement?  Of course various issues including how the software and the data is owned by the Robot will impact of whether this issue arises at all.

Data ownership, security and information privacy

Assuming of course that the AI collects personal information as defined in the Privacy Act 1988(Cth), what guarantees does the user have that this information will be adequately protected?

Will owners of Robots and AI systems (or the Robots themselves) need “Data Breach Response Plans” in future?  Perhaps comically would the Robot be able to assess whether a data breach was an eligible data breach because it would likely result in serious harm to any of the affected individuals?  See our article here “what is a data breach response plan and why would I want one”.

The approach of the European Union

In January of 2017 the EU Legal Affairs Committee called for the EU Commission to create a legislative framework for robotics related issues.[3]   The press release stressed the need for AI to guarantee a level of safety and security.  Subsequently the Report with recommendations to the Commission on Civil Law Rules on Robotics’ was tabled in January 2017, with a motion for a resolution was adopted on 16 February 2017 that raised the following issues to be considered:

  • liability;
  • general principles of development of robotics;
  • research and innovation;
  • ethics;
  • centralised agencies;
  • intellectual property rights and data flows;
  • standardisation, safety and security;
  • autonomous means of transport (including vehicles and drones);
  • care and medical robots;
  • repair and replacement of the human body (‘intelligent implants’);
  • education and employment;
  • environmental impact; and
  • international aspects.

This resolution does not propose a framework for the regulation of AI however would on its face appear to address several of the more significant legal issues that AI presents.

Jurisdiction and choice of law

One of the more interesting legal issues in AI as its use crosses borders will be to consider the choice of law and in what jurisdiction can an aggrieved person sue.  The issue is perhaps not a perplexing, however it becomes administratively challenging for the aggrieved.

The only thing that is certain with the development of AI is that the legal issues are uncertain and like an ICO there are shades of grey which will come to light in the fullness of time.

Related articles by Dundas Lawyers

What is a data breach response plan and how do I get one?

What is an initial coin offering?

Who owns the code?

Further information

If you’re looking for a lawyer to advice you on the legal issues associated with Artificial Intelligence then please telephone me for an obligation free and confidential discussion.

Brisbane Lawyers
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 | Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Wikipedia, accessed at https://en.wikipedia.org/wiki/Artificial_intelligence accessed on 7 April 2018.

[2]  Oxford Dictionary, https://en.oxforddictionaries.com/definition/artificial_intelligence accessed on 7 April 2018.

[3]  http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+IM-PRESS+20170110IPR57613+0+DOC+PDF+V0//EN&language=EN

[i] Wikipedia accessed on 7 April 2018 at https://en.wikipedia.org/wiki/Artificial_intelligence.

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Tel: 07 3221 0013

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