Legal Consideration of Emerging Technologies - Artificial Intelligence (AI)

Introduction

New technologies have and will continue to have an enormous impact on our society, as time continues. Emerging technology may range from educational technology, information technology, nanotechnology, biotechnology, robotics, and artificial intelligence. One of the most consequential aspects of emerging technology is not just its potential, but also its legal implications. As we move towards a future with automated systems and advancements in AI, human laws have to change. However, there are still many legal questions surrounding these developments that remain unanswered.

What is AI and what can it do??

Artificial Intelligence commonly referred to as AI is the simulation and imitation of human intelligence in machines. It is the ability of a machine to exhibit common human traits after it has been programmed to think and act as such. AI is being used today in different sectors of the economy ranging from Healthcare to Startups to Finance. AIs are endowed with the intellectual process characteristics of humans, such as the ability to reason, ability to talk, discover meanings or learn from past experiences. In simpler artificial intelligence is computer systems doing what was only possible for humans to do.?

Legal Implications of Artificial Intelligence?

As various aspects of human life are transforming, software developers are creating more AIs to assist in these aspects. However, as a rapidly developing technology, AI presents numerous legal considerations and these issues need to be tackled before AI can be fully realized. Here are some of the key legal issues around AI:

Issues in intellectual property

Intellectual property law is based on the premise that the holders of these rights can enforce their rights by monitoring the use of their works and suing those who infringe on them. However the innovative and disruptive nature of emerging technologies has made it cheaper, more quickly and a lot more private to copy, transfer, manipulate and distribute information and intellectual property.

One of the challenges here is the unlawful use of user-generated content created by emerging technologies, it must be noted that copyright is automatic upon creation and not when the work is registered for copyright. Therefore anyone who copies or distributes digital content created by these technologies may be liable for infringement of copyright law. This leads us to the next point on the issue of authorship of a copyrighted work.

Artificial intelligence (AI), machine learning and robotics can be used to develop artistic creations such as digital art, and music, communication interfaces such as chatbots, and to help in the manufacturing and distribution processes. Some of these AI-based creations may be copyright registrable if the criteria for copyright protection are met.?The question is, to what extent should AI-based creations be protected under copyright laws? The originality of the work is often not the issue, but whether computers can have authorship in works. Under existing copyright laws, going even as far back as the Berne Convention for the Protection of Literary and Artistic Works, authorship in copyrighted works is vested in humans. As technological innovation continues across the globe, computer-generated creations will likely be an ongoing trend.

A recent copyright case in China shows the need for clarity on copyright authorship in computer-generated works. A Beijing Court held that a software program was the original author of a database compilation but found that no copyright could be attributed to the program since copyright only subsists in natural persons. Currently, at the multi-lateral IP governance level, (specifically the World Intellectual Property Organization) there are ongoing discussions of how AI-generated works should be treated under copyright law.

Under the Berne Convention, an international copyright treaty applicable in more than 160 countries, copyrights for creative works are automatically in force upon their creation. Under the laws of most countries, authors automatically obtain the copyright in their user-generated content upon its creation. The authors do not need to?assert the copyright in the user-generated content (e.g., by adding the ? symbol) or?register their copyrighted content?

If a person uses the whole or a substantial part of a copyrighted work without permission, that person is liable for copyright infringement. The copyright holder may commence court proceedings in order to:?

?stop the infringement;?receive compensation for damages suffered as a result of the infringement; and?order the infringer to give up the infringing materials to the copyright holder.?

A patent can be defined as: “an exclusive right or rights provided by a government to an inventor for a certain period of time in exchange for the public disclosure of an invention” (Dimov, 2013). Since most emerging technologies are software-based, we will focus on software patents.

Software patents are a controversial topic. While some countries prohibit the grant of software patents, others allow inventors to receive patents for software. Interestingly, the proponents and the opponents of software patents use the same reasoning to justify their position, the proponents of software patents argue that the prohibition of software patents will “stiff” innovation because the inventors would not have the incentive to invest in software which cannot be protected by a patent. The opponents of software patents argue that software patents “stiff” innovation because the owners of the software patents use them against start-ups which do not have enough financial resources to defend their inventions in court.

Most countries place limits on the patenting of software. However, those limits differ amongst the countries. For example, the European Patent Office does not grant patents for computer programs or computer-implemented business methods that make no technical contribution. In the same vein, the United States Supreme Court stated in Alice Corp. v. CLS Bank International that: “merely requiring generic computer implementation fails to transform [an] abstract idea into a patent-eligible invention.”

Although most countries impose limits on patenting software, software patents have been widely granted. A large number of software patents cover emerging technologies. For instance, on February 23, 2010, Facebook was granted US Patent No. 7,669,123, which discloses a method for dynamically providing a news feed about a user of a social network.

Software patent in Nigeria: Software patent is available in Nigeria and there are 4 ways by which software can be protected which include; Copyright, Patents, Trademark and Trade secrets. The software can be protected under the patent law in Nigeria if it satisfies the basic requirement of patentability of?

Novelty. It must be a new invention or an improvement upon an already patented invention

It must be a result of inventive activity, and

It must be industrially applicable.

Software patents in the United States: The United States patent law does not explicitly mention software patents. Hence, the patentability of software invention has been addressed by courts. The history of the United States patent law started with the adoption of the U.S. Constitution. Article I, Section 8 of the U.S. Constitution states: “The Congress shall have Power (…) to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Since software patents appeared in the 20th century, the U.S. patent law had to be expanded to address such patents. The expansion was done by the U.S. courts in a large number of court decisions. The cases of Bilski and Alice are two of the most important U.S. cases related to software patents.

Bilski case: Prior to the Bilski case, an invention was patentable only if: (1) an invention is implemented by a particular machine or (2) an invention transforms an article from one state to another. In the Bilski case, the U.S. Supreme Court stated that an invention can be patentable even if it is not implemented by the particular machine or transforms an article. Thus, the U.S. Supreme Court opened the door to software patents, including software patents related to emerging technologies. The case of Bilski resulted in a flood of patent applications for various types of software. Further, the case put the U.S. Patent and Trademark Office (USPTO) in a difficult situation because the USPTO was left without guidelines on the patentability of inventions failing to comply with the “machine-or-transformation” test.

Alice case: In the Alice case, which follows the Bilski case, the U.S. Supreme Court stated that the implementation of abstract ideas on a computer was not enough to transform the ideas into the patentable subject matter. Therefore, the Alice case resulted in a significant drop in the number of U.S. software patents. Federal Circuit Judge William Curtis Bryson explained the post-Alice drop in the number of U.S. software patents as follows: “In short, such patents, although frequently dressed up in the argot of invention, simply describe a problem, announce purely functional steps that purport to solve the problem, and recite standard computer operations to perform some of those steps. The principal flaw in these patents is that they do not contain an “inventive concept” that solves practical problems and ensures that the patent is directed to something “significantly more than” the ineligible abstract idea itself. “

There has been an increase in the number of countries which seriously limit the patentability of software. For example, in the United States, such a limit was set by the Alice case in 2014. In New Zealand, computer programs were excluded from patentability in 2013. Similarly, in Germany, the German Parliament adopted in 2013 a motion “against the growing trend of patent offices to grant patents on software programs.

Issues of Privacy and cybersecurity threats

According to Gartner, by 2023 about?$175.5 billion would be spent on information security and risk management. AI normally absorbs millions of data and these data are mostly gotten from users. If a hacker can interfere with this technology and obtain any sensitive data it may be used for both the good and bad. Recently, the Italian Data Protection Watchdog temporarily placed a ban on ChatGPT pending the completion of its investigation on Artificial Intelligence based on allegations of violation of European privacy regulations, lack of age restrictions on ChatGPT and factual inaccuracy of the responses generated from the AI.

Issue of Automation

Due to the high level of development and sophistication of AI?technologies, they are programmed into automation to receive and process information to give rapid responses. The use of AI technologies can double output within a limited space of time. This will lead to a loss of jobs as many business owners will want to increase productivity while reducing the cost of labour to accumulate more profit. It has also been a fear that these technologies may soon replace men even while the work requires innovation and creativity. For example, ChatGPT was reported to have written convincing copies within a very short time, a work which could have taken 100 copywriters days to come up with.?

Issue of Liability

Artificial Intelligence has brought the world to a level of advantage and productivity which no dispensation of humans has ever enjoyed. Artificial intelligence has been adopted in various aspects of human lives but a question arises as to who takes liability for the frailty of Artificial Intelligence. In both criminal and civil actions, the defendant is readily ascertained. However, who becomes responsible for the action of AI systems? Is it the developer? Or the User? Or the AI system itself? In a situation where a self-driving car causes an accident that leads to the death of a person, who would be held responsible for the loss of life? Would it be the car manufacturer, the software developer or the owner of the vehicle? To what degree can physicians assign the responsibility of diagnosing medical conditions to intelligent scanning systems without subjecting themselves to legal risk for malpractice if the system makes an error?

Another example: if a 3D house crashes down, who bears liability? The supplier of the 3D house design, the manufacturer who 3D printed the house parts or the manufacturer of the 3D printer? An illustrative example is the cyber attack on the Decentralized Autonomous Organization (DAO), a decentralized investment fund running on Ethereum a blockchain platform, in 2016 a hacker took advantage of a flaw in the DAO’s code and stole USD 50 million of virtual currency. Due to the decentralized nature of the system, liability cannot be assigned to anyone or anything.

There’s no finite line as to who takes responsibility for the excesses of emerging technologies and AI in most parts of the legal system around the world.?

However, companies using them should mitigate risk rather than simply assuming liability if something goes wrong. Additionally, laws around information privacy must take into account any data collected by AI products/services in order to protect users’ personal info against unauthorized use or sale.

Issue of Legislation

Artificial Intelligence seems to have taken the world by surprise. First World countries are experiencing some clogs in the wheel of legislation regulating the use of Artificial Intelligence. These technologies have also been introduced into Third World countries where there is no legislation regulating the use of Artificial Intelligence and there might not be until much later. Yet many more businesses invest in AI technological evolution progresses without legal restrictions and regulations. Legislators for AI have to dig deep. The scope of the legislation should address programming errors, whether the statistical chances of glitches raise safety issues, whether testing protocols are sufficient and much more.

Conclusion?

The increasingly fast advancement of technology has outpaced the law (legislation, regulations and judicial review) and the legal structure that governs the system. (legislations, regulations and judicial review). The challenge is that legal institutions are slow in their capacity to adjust and respond to emerging technologies. For instance; the legislative process is slow and issues are often treated not based on their importance but on political urgency and expediency. The regulatory processes are also slow to catch up because regulators can only act in accordance with their existing laws and to ensure that they survive judicial review.?

The system of judicial review is even slow due to its adherence to precedent and the principle of stare decisis. The process of litigation is lengthy and a case can take years from the day of filing to a final appellate decision, meanwhile, there is the likelihood that the judicial opinion may already be outdated. This outpacing of the law by technology leads to:

Failure to impose appropriate legal restrictions and precautions to control the risks of emerging technologies

Uncertainties in the application of the existing legal frameworks to emerging technologies

Potential for technology to make existing laws and rules obsolete.

Potential for existing rules to either under or over-regulate emerging technologies

Hence it has been recommended to help the Law keep lace with emerging technology and mitigate the legal implications of these emerging technologies:

Specialized courts such as technology and cyber courts be created to provide speedier and more sophisticated legal decisions involving emerging technologies

Mandatory periodic review to ascertain the current status of the problem or challenge raised by emerging technologies being regulated.

Independent institutions that are not burdened by politics and bureaucracy, and can make efficient and speedy adjustments in policies as technology emerges and evolves

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Written by the research and content team of Techminded Lawyers Club