MEPs approved proposals from the Legal Affairs Committee to address opportunities and legal challenges posed by AI. Our Lexing France correspondent tells you what you need to know about these proposals.

Making Artificial Intelligence ethical, safe and innovative

A further step was taken by the European Parliament on 20 October 2020 with the adoption of three resolutions defining respectively:

The purpose of these resolutions and the associated proposed regulations is to:

  • -make Artificial Intelligence ethical, safe and innovative and
  • -address the legal challenges posed by AI, robotics and related technologies.
1. An ethical framework allowing for human oversight

The European Parliament sets out a new legal framework outlining the ethical principles to be used when developing, deploying and using artificial intelligence, robotics and related technologies in the EU, “including software, algorithms and data”.

It sets out the guiding principles taken into account in the proposed Regulation annexed to the Resolution, such as:

  • -a human-centric, human-made and human-controlled AI;
  • -an “impartial, regulated and external ex-ante” risk assessment “based on concrete and defined criteria”;
  • -features to ensure safety, transparency and accountability
  • -safeguards against bias and discrimination “including through inherent biases in the underlying datasets”;
  • -the right to “challeng[e] the introduction or ongoing use of a AI system” and to “seek remedies for a violation of rights”;
  • -social (such as safeguarding and promoting democracy, the rule of law, economic prosperity) and environmental responsibility;
  • -respect for fundamental rights (most notably privacy).

AI with machine-learning (self-improving) capacities should be designed to allow for the “good governance of these technologies” (human oversight). For example, decisions made or informed by these technologies “should remain subject to meaningful human review, judgment, intervention and control” in order to avoid any breach of ethical principles.

Above all, they should be designed in a manner that makes it possible to disable them and to revert to a previous state restoring “safe functionalities” in cases of malfunction or threat to people.

2.  A civil liability system aiming to protect citizens and businesses

The European Parliament believes that “there is no need for a complete revision of (…) liability regimes” but only for “specific and coordinated adjustments (…) to avoid a situation in which persons who suffer harm (…) end up without compensation”.

Members of the European Parliament (MEPs) suggest the responsibility in principle of the AI system operator (both the frontend operator and the backend operator). For “high-risk autonomous AI-systems”, they believe it is “reasonable to set up a common strict liability regime” (no-fault liability). All high-risk AI-systems should be exhaustively listed in the proposed Regulation annexed to the Resolution.

This would encourage innovation by providing businesses with legal certainty (as it should determine the amount and extent of compensation) and protect citizens better and enhance their trust in these technologies.

MEPs focused on civil liability claims against operators of AI-systems. The liability would coverviolations of the important legally protected rights” to:

  • -life,
  • -health,
  • -physical integrity, and
  • -property.

It should also set out the amounts and extent of compensation, as well as the limitation period.

3. An effective intellectual property system which is fit for the digital age

To remove unnecessary legal barriers, MEPS calls for:

  • -“an impact assessment” to be conducted with regards to the key issue of protecting intellectual property rights (IPRs)
  • -“in the context of the development of AI technologies”.

Accordingly, they suggest that this assessment focus on the impact and implications of AIunder the current system” of:

  • -patent law,
  • -trademark and design protection,
  • -copyright and related rights, including the applicability of the legal protection of databases and computer programs, and
  • -the protection of undisclosed know-how and business information (‘trade secrets’) against their unlawful acquisition, use and disclosure.

Moreover, considering the development of AI, MEPs believe it is important “to distinguish between AI-assisted human creations and creations autonomously generated by AI”. In this connection, they take the view that “works autonomously produced by artificial agents and robots might not be eligible for copyright protection, in order to observe the principle of originality”.

They note that the autonomisation of the creative process of generating artistic content can raise IPR issues. Accordingly, they consider that “it would not be appropriate to seek to impart legal personality to AI technologies.

Read the article (in French) on the website of Lexing France (Alain Bensoussan Avocats Lexing) 

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