AI – Legal Developments
AI is the buzzword in every conversation. If you believe the economic experts, a company will fail in the future if it fails to leverage the capabilities and strengths of AI. However, the use of AI raises not only ethical but also legal questions.
What is AI?
AI enables technical systems to perceive their environment, process what they perceive, and solve problems in order to achieve a specific goal. The computer receives data (which has already been processed or collected by its own sensors, such as a camera), processes it, and responds. Artificial intelligence is a machine’s ability to mimic human capabilities such as logical thinking, learning, planning, and creativity. AI systems are able to adapt their behavior by analyzing the consequences of previous actions and operating autonomously.
What is the EU doing?
The AI-ACT
However, European lawmakers recognized early on in this development the need to establish specific rules for AI systems, applications, and processes.
In general, risk categories have been defined. Certain systems—such as those that violate EU values or use social scoring— are prohibited. AI systems with high risk potential are subject to specific requirements, such as risk management, data governance, technical documentation, etc. If the AI system is suitable for general-purpose use (so-called “general-purpose” AI), you will typically 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 regarding AI models and systems for general purposes (GPAI) across the 27 EU member states.
By the way, what other legal issues are there?
As was particularly evident in the discussions in the late 1990s regarding so-called “new” Internet law, one must generally—as is customary with abstract legislation—apply existing laws to determine the legal framework when AI is used. Artificial intelligence, as the name suggests, can or is intended to support or replace human intelligence and its creative, inventive activities. 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 works eligible for protection under copyright law. Conversely, this may even mean that “creations” generated purely by AI can, in principle, be used by third parties. The decisive factor is the essential human creative component of a creation.
AI Learning Processes?
AI uses all the content available to it to learn and improve. In other words, all content available on the Internet serves as a vast training ground. To stay with the sports analogy, however, one must ask whether AI even has legitimate access to all these training grounds. This question arises particularly when AI uses copyright-protected content for this purpose without having obtained a valid (training) license. Ultimately, this means that, as a general rule, permission to use such data must be obtained.
Copyright Infringement by AI?
Based on the above, it follows logically that AI can also commit copyright infringements. If I am not already permitted to use copyrighted content for educational purposes, then I certainly may not use it to create new content or combine it with other copyrighted content. It is also conceivable that a “newly created work” might be too closely based on or resemble an existing copyrighted work. This, too, is a scenario that suggests a copyright infringement.
Violations of personal rights?
In addition to copyright infringements, violations of general personality rights are also possible. The case involving Scarlett Johansson recently came to light. The voice “Sky” from ChatGPT is said to be modeled after Scarlett Johansson’s voice. Johansson voiced an AI program in the movie “Her.” She had previously declined ChatGPT’s request to use her voice for “Sky.”
The development of AI—and the corresponding evolution of the law—is just beginning and is sure to be a very exciting journey. Above, you’ll find a few general considerations and pointers. As with almost all legal issues, it ultimately depends on the specific circumstances of each case. Please contact us if you have any questions.
