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May, 2024

AI - Legal development

AI is the buzzword in every conversation. If you believe the business experts, a company will fail in the future if it forgoes the capabilities and strengths of AI. However, the use of AI is not only associated with ethical issues, but also with legal questions.

What is AI?

AI enables technical systems to perceive their environment, deal with what they perceive and solve problems in order to achieve a specific goal. The computer receives data (which has already been prepared or collected using its own sensors, for example a camera), processes it and reacts. Artificial intelligence is the ability of a machine to imitate human abilities such as logical thinking, learning, planning and creativity. AI systems are able to adapt their actions by analyzing the consequences of previous actions and working autonomously.

What is the EU doing?


However, at an early stage of this development, the European legislator saw the need to define some specific rules for AI systems, applications and procedures.

In general, risk categories have been defined. Certain systems that violate EU values or social scoring, for example, are prohibited. AI systems with a high risk potential have special requirements such as risk management, data governance, technical documentation, etc. If the AI system is suitable for a general purpose, you usually need technical documentation and proof of the content used. In particular, compliance with the copyright directive is required. The so-called AI Office will monitor, supervise and enforce the requirements of the AI Act for general purpose AI models and systems (GPAI) in the 27 EU member states.

What other legal issues are there?

As the discussions at the end of the 1990s on the so-called "new" internet law in particular showed, existing laws must always be applied, as is usual with abstract legislation, to determine the legal scenario when AI is used. Artificial intelligence, as the name suggests, can or should support or replace human intelligence or its creative, creative activity. In this respect, it is perhaps not surprising that the discussion currently revolves primarily around the area of copyright law. 

Can AI create new works?

Human, intellectual creation is a prerequisite for copyright protection: in this respect, AI cannot create protectable works within the meaning of copyright law. Conversely, this may even mean that "creations" generated purely by AI can in principle be used by third parties. The essential human-creative component of a creation is decisive.

Learning processes of AI?

AI uses all the content available to it to learn and improve. In other words, all the content available on the internet is one big training ground. To remain in the language of sport, however, one must ask whether AI has authorized access to all training grounds at all. This question arises in particular if AI uses copyrighted content for this purpose and has not acquired a valid (training) license. Ultimately, this means that permission to use such data must be granted.

Copyright infringements by AI?

It follows logically from the above that AI can also commit copyright infringements. If I am already not allowed to use protected content for learning purposes, I am certainly not allowed to use it to create new content or combine it with other protected content It is also conceivable that a "newly created work" is too close to or similar to an existing protected work. This is also a constellation that suggests copyright infringement.

Violations of personality rights?

In addition to copyright infringements, infringements of general personal rights are also conceivable. The case of Scarlett Johansson recently came to light. The voice "Sky" from ChatGPT is said to be modeled on Scarlett Johansson's voice. Johansson had the speaking role of an AI software in the movie "Her". She had previously rejected ChatGPT's request to use her voice for "Sky".

The development of AI and the correlating legal development is just beginning and will certainly be a very exciting journey. Above you will find a few abstract considerations and pointers. As with almost all legal issues, it ultimately depends on the exact case constellation. Please contact us if you have any questions. 

Dr. Julian Oberndörfer

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