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Legislative consultations, reports and resolutions around data, intellectual property and responsible use of in respect of artificial intelligence out in force

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The UK

Intellectual property developments

In September 2021, we reported that the UK government had launched its AI strategy. Building on the launch, the government has set out an ambitious set of consultations which either focus specifically on artificial intelligence (AI) or are highly relevant to those developing, selling, licensing, procuring and/or using AI solutions in a bid to put in place a solid legislative foundation for success in AI for the UK. Some of the key consultations launched this autumn are set out below.

UK government consults on AI and intellectual property

On 29th October 2021, the UK government launched a consultation on how the copyright and patent system should deal with AI. The intellectual property (IP) position in relation to AI still needs clarity in many countries given the territorial nature of IP. The UK government had previously sought input on the interaction of AI and IP. Arising out of that consultation, it became clear that there were gaps to plug around protection of both human works in this area and works of AI itself and use of copyrighted material in AI and machine learning.  

This consultation, which is being led by the UK IPO, is seeking evidence and views on:

  • the extent to which patents and copyright should protect inventions and creative works made by AI. This is a quandary that a number of countries around the world have been seeking to grapple with. The outcome is obviously hugely important for the industry and for how organisations seek to own, protect and exploit IP related to AI.

Whilst in the UK, computer-generated works have been protected by copyright for many decades, is this still relevant in its current form and is the 50 year protection right or not?

Like many countries, the UK is also grappling with patent protection in this area, seeking to find the balance between the significant protection afforded by patents with not stifling innovation.

  • measures to make it more simple to use copyright protected material in AI development, supporting innovation and research. This is a hugely important area to get right industry, academia and the world at large given the seismic benefits that AI can bring to R&D and innovation. With the impressive co-operation around data and use of AI we have seen – at times – focused  on solutions related to COVID-19, we also saw earlier on in the pandemic a number of regulators being criticised for their then protectionist approach to data sharing so this is pleasing to see.

That said, this balance is critical to get right. The consultation includes questions like should there be exemptions to copyright for certain text and data mining. This is often a key part of AI and development and it is important to look at what is right for the eco-system as a whole.

Overall, the consultation is raising some thought-provoking and important questions and we would encourage organisations who have the potential to benefit significantly from development and/or use of AI in the future to input into the consultation.

The consultation ends on 7th January 2022.

Data developments

ICO consults on AI and data protection toolkit

On 12 October 2021, the Information Commissioner’s Office (“ICO”) launched a consultation on the beta version of its AI and data protection risk toolkit.

The toolkit was initially published in July this year (following the release of the alpha version in March) and is designed to help practitioners identify and mitigate the risks that AI systems processing personal data may create or exacerbate. The toolkit drew upon the ICO’s Guidance on AI and Data Protection, as well as its co-badged guidance with The Alan Turing Institute on Explaining Decisions Made With AI.

The toolkit reflects the ICO’s auditing framework, which sets out a methodology to audit AI applications and ensure they process personal data in compliance with the law. The ICO suggests that organisations using AI to process personal data can have high assurance that they are complying with data protection legislation by following the methodology laid out in the toolkit.

The toolkit is aimed at both compliance specialists (such as data protection officers (DPOs); general counsel; and risk managers) and technology specialists (such as machine-learning developers and data scientists; software engineers; and IT risk managers). The ICO has also indicated that it will use the toolkit to inform its own audit functions under the data protection legislation. It comprises a series of risk statements and practical steps, structured around the four stages of the AI lifecycle: (i) business requirements and design; (ii) data acquisition and preparation; (iii) training and testing; and (iv) deployment and monitoring.

The consultation feedback form covers questions ranging from “How easy is the toolkit to implement into your workflows?” and “What changes would you make to make it easier?” to “How likely is it that you would use this toolkit?” and “How has this toolkit impacted your level of confidence in complying with data protection law?”.

The consultation closes on 1 December 2021.

UK government shapes new UK data laws

One of many recent developments around data that affects use of AI includes the more wide-reaching data consultation Data: a new direction - GOV.UK ( launched by the government on 10th September 2021. The extensive (140+ pages) document sets out the first substantive set of proposals to reshape UK data protection laws, in the wake of the UK’s exits from the EU. It sits as part of a wider National Data Strategy, with the theme that it is seeking to clarify and simplify (whilst maintaining high standards) to remove “unnecessary barriers to responsible data use” and  “keep pace with the rapid innovation of data-intensive technologies”.  There is a lot of relevance within it, but  consultation focuses on the interplay of AI technologies with the UK's data protection regime specifically in Chapter 1, Section 1.5, raising questions on whether changes are required to  clarify concepts of fairness, whether the use of personal data should be allowed more freely for the purpose of training and testing AI responsibly, and on the adoption of specific legal grounds to enable use of sensitive personal data for the purpose of bias monitoring, detection and correction in relation to AI systems. 

The consultation closes on 19 November 2021.

Other noteworthy developments in the EU and elsewhere

  • On 15 September, the Office of the High Commissioner for Human Rights (“OHCHR”) released a report on the widespread use by nation states and business of AI, which – while acknowledging that such technologies can be positive and help societies overcome key challenges – focussed on how AI can impact an individual’s enjoyment of the right to privacy, alongside other human rights. Among other recommendations, the OHCHR emphasised the need for a moratorium on the sale and use of AI systems that pose a serious risk to human rights, until adequate safeguards are put in place. She also called for a ban of AI applications that are not compliant with international human rights law.
  • In addition, on 6 October, the European Parliament announced that a resolution calling for stronger safeguards to be deployed when AI is used in law enforcement had passed (adopted by 377 in favour, 248 against and 62 abstentions). The resolution highlighted the algorithmic bias in AI applications and emphasised that human supervision and strong legal powers are necessary to prevent discrimination, especially when such applications are used for law enforcement or border-crossing. Consequently, MEPs supporting the resolution demanded that human operators are to always make the final decisions and that those who will be monitored by AI systems should have a route to seek remedy.

This briefing touches upon some of the most recent developments in the UK and EU around AI. There are, of course, a plethora of laws and guidance forming around the world which impact artificial intelligence. Whilst it is understandable that governments seek to distinguish and protect their own countries, their citizens and their industries, the complexity forming through these territorial differentials is something which, more than ever, requires a key strategy for organisations seeking benefit from development and/or use of artificial intelligence.

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