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IA - Some General Considerations

Dra. Sofía Humaian

"AI has been around for decades, but it hasreached new capabilities fuelled by computing power," said Thierry Breton, the EU's Internal Market andServices Commissioner.

IA reflections and comments are nowadays on a daily basis in all media, social platforms, networking conversations and so on.

Social impact companies which are a potential reality among investors and entrepreneurs, usually embroil themselves in an entrepreneurial culture of positive impact on one or more communities, maintaining ESG principles throughout.

In other words, new and existing companies have modified their business strategy in order to adapt to a new way of operating and developing their products and services.

Among the main pillars of a social impact company are environmental stewardship, happy and motivated employees, process automation, cross border on B2B and B2C partnerships and a responsible use of new technologies.

So, what should corporate leaders look at when deciding whether or not to incorporate disruptive technologies (such as AI) into the way their companies operate? When and how does a company start capitalising on the use of this technology?

Beyond the queries of any individual, governments and industries at a broader level have also taken AI, along with its potential risks, limits and regulation as a crucial matter.

“There are many intriguing aspects of this technological future that deserve further thought and comment,” noted Christopher D. Manning, a Thomas M. Siebel professor in machine learning at the School of Engineering; professor of linguistics and computer science at Stanford University; director of StanfordAI Lab.

About 65% of users believe AI tools will soon replace traditional web search engines as the faster alternative for online search, according to the Aberdeen Generative AI study conducted in March 2023 by Aberdeen Strategy & Research Opens.

“We’re still in the early days of figuring out what new models of normal business practice are and aren’t possible. In nearly all cases, the AI system will help humans to get work done. As such, it continues the story of new technologies and automation making things easier and improving quality of life.” said Christopher D. Manning.

Fei-Fei Li, Sequoia Capital professor in the Computer Science Department; Denning co-director of Stanford HAI, noted, “The progress in a machine’s capability to generate content is very exciting, as is the potential to explore AI’s ability to see what humans are not able. But we need to be attentive to how these capabilities will disrupt our everyday lives, our communities, and our role as world citizens.”

What is beyond dispute is that AI has, once again, created a legal gap in all jurisdictions with respect to data protection, intellectual property, regulation in its misuse, IT security policies, classification of risk levels in accordance with AI’s type, among many others. These matters must be and already are addressed by several countries, based on their current regulatory framework.  

Within this context, different issues arise related to AI. But let’s focus in one in particular: intellectual property and the creation of content by AI programmes.

I am sure I am not the only one wondering: copyrights could be attributed to products made by "non-humans"?

As a way of example: European Parliament resolution of October 20th, 2020 on intellectual property rights for the development of artificial intelligence technologies, 2020/2015(INI), stated that: “Recent developments in artificial intelligence (AI) and similar emerging technologies represent a significant technological advance that is generating opportunities and challenges for Union citizens, businesses, public administrations, creators and the defence sector” Likewise, such Resolution expressed “Parliament stressed that the development, deployment and use of AI-related technologies and the growth of the global data economy require addressing important technical, social, economic, ethical and legal issues in different policy areas, including IPRs and their impact on these policy areas”,

Under this premise, the European Union (EU) is considering a new legal framework (“AI Act”) that aims to significantly reinforce regulation on the development and responsible use of artificial intelligence.

The discussed legislation which focuses primarily on strengthening rules on data quality, transparency, human oversight and accountability. Has included an important focus on protecting intellectual property.

In such sense, it states that: “The increased transparency obligations will also not disproportionately affect the right to protection of intellectual property(Article 17(2)), since they will be limited only to the minimum necessary information for individuals to exercise their right to an effective remedy and to the necessary transparency towards supervision and enforcement authorities, in line with their mandates. Any disclosure of information will be carried out in compliance with relevant legislation in the field, including Directive2016/943 on the protection of undisclosed know-how and business information(trade secrets) against their unlawful acquisition, use and disclosure. When public authorities and notified bodies need to be given access to confidential information or source code to examine compliance with substantial obligations, they are placed under binding confidentiality obligations”.[1]

Furthermore, TITLE X of “CONFIDENTIALITY ANDPENALTIES” in its Article 70 express: “Confidentiality 1. National competent authorities and notified bodies involved in the application of this Regulation shall respect the confidentiality of information and data obtained in carrying out their tasks and activities in such a manner as to protect, in particular: (a) intellectual property rights, and confidential business information or trade secrets of a natural or legal person, including sourcecode, except the cases referred to in Article 5 of Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure apply.”  

From this analysis, the active role the European Union has played in the field of artificial intelligence stands out.  However, this baseline needs to be widened too other jurisdictions that, due to the uncertainty of these emerging technologies, have not yet taken a position regarding this matter.

Regulatory protection is essential to protect fundamental rights such as intellectual property rights, without harming the development of the digital economy and new ways of operating in any market.

Regardless the key role of authorities towards this matter, it will be up to each reader to consider whether the benefits and advantages of AI outweigh the risks and its revolutionary way of making business nowadays.