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Eu Robotics And AI Law In Business

Autor: Roxana Mihaela Catea

CHALLENGES OF THE NOT-SO-FAR FUTURE: EU ROBOTICS AND AI LAW IN BUSINESS

Susținut în cadrul conferinței Challenge of the Knowledge Society, 2018

Roxana Mihaela CATEA

Abstract

The paper focuses on the emerging European legislation in the area of artificial intelligence and robotics, based on

the currently fast developing technical procedures for the manufacture of products characterized by autonomy. The importance

of having a clear and stable legislation for the production and spread of technical devices has been under discussion for some

time now and member states have reached preliminary conclusions regarding the definition and criteria by which one can

identify artificial intelligence. Also, continuous innovation lead to the necessity of integrating these AI products in common

household economy and therefore, the need for a proper legal framework addressing both liability and limits for creating and

operating machines for civil use arose. This article shall review the measures already taken by the European Parliament and

the European Commission for the establishment of a standardized legal framework related to robotic and artificial intelligence

products. The objectives of this study are to analyze the general guidelines available as created by the EU legislator which

shall ultimately be transposed in national legislation, in order to supersede the current lack of regulations for companies

developing and selling AI products nation-wide.

Keywords: "civil law rules on robotics", "artificial intelligence and its liability", "Robotics Regulation in the European

Union", "robotics liability".

1. Introduction

Law should be the expression of a set of norms

emerging from the current real situations mankind is

confronted with. For example, once you have the first

homicide, the state regulates that homicide is a criminal

offence and any perpetrator is punished. But what is the

solution when reality is faster than the legal framework

and you find yourself in a situation where, for example,

a Tesla car without a driver while circulating within the

limits of legal obligations applied to any man-driven

vehicle, endangers a citizen on a crossing? Or how will

a situation when several autonomous cars collide,

creating human victims, be dealt with? Who shall bear

liability in such case - the car manufacturer, the IT

software manager or the person sitting on the left side

who did not intervene? And whom shall you prosecute

in such a case: the human or the robot itself?

Currently, we are unable to fully reply to these

queries, since the available framework applies

limitedly and by analogy. We have only stipulated

sanctions applicable for the citizens of a country

without thinking that one day, damages may be

occurred as a result of a non-man intervention. Well,

while almost all participants to the legal system have

been busy catering to more classical matters, that day

has come.

Therefore, based on recent developments, there is

the urgent need to establish a proper legal framework

which allows citizens and professional to know their

rights and obligations when contracting an artificial

intelligence tool, a smart contract or when a product

 PhD Candidate, Faculty of Law, “Nicolae Titulescu” University of Bucharest (e-mail: roxana.catea@tuca.ro)

1 Computing Machinery and Intelligence’, Alan Turing, Mind, October 1950 .

2 The Quest for Artificial Intelligence: A History of Ideas and Achievements’, Prof Nils J Nilsson, Cambridge University Press, 2010.

which may be identified as a robot creates certain

changes in the contractual dynamic between parties.

2. The A-B-C of artificial intelligence

Although many may establish what artificial

intelligence is based on the information available

through social media or mainstream media, the truth is

that there is no accurate definition generally accepted

and adopted as a legal norm.

Defining a machine as intelligent was firstly done

by Alan Turing, Deputy Director of the Computing

Machine Laboratory at the University of Manchester,

while developing the world's first stored program

digital computer.

In 1950 Alan Turing created the so-called Turing

Test1 for establishing whether a machine is

‘intelligent’: a machine could be said to ‘think for itself’

if a human interlocutor could not tell it apart from

another human being in conversation. However, the

term "artificial intelligence" is known to have firstly

been used by Professor John McCarthy at Dartmouth

College, New Hampshire, USA in 1956.

In 2010, a definition of artificial intelligence

which reflects the basic understanding of the term

emerged:

“Artificial intelligence is that activity devoted to

making machines intelligent, and intelligence is that

quality that enables an entity to function appropriately

and with foresight in its environment2”.

By now, artificial intelligence has been deemed to

be the fourth industrial revolution humanity is currently

214 Challenges of the Knowledge Society. Private Law

undergoing, in the words of the executive chairman and

founder of The World Economic Forum, Klaus

Schwab3, after steam, electricity and computing. Mr

Schwab’s thesis is that humanity is on the break of

substantial IT-driven change where we may expect a

‘deep shift’ by 2025 which will materially impact our

lives.

Already artificial intelligence is used in our

households and encountered frequently in a high-pace

society. As the Briefing issued in January 2018 by the

EPRS | European Parliamentary Research Service4,

artificial intelligence has became the usual technology

used in the following cases: automatic translation,

provided for example by Google Translate, speech

recognition and interpretation, such as the example

between English and Chinese demonstrated in

November 2012 by Rick Rashid of Microsoft, face

recognition systems used in criminal investigations or

to unlock a smartphone, Self-driving vehicles:

equipped with sensors and analysing gigabytes of

information each second, the new generation of

automated vehicles combine different AI systems to

drive themselves (Tesla or Waymo), medical diagnosis:

AI can help physicians establish or confirm a diagnosis

(Human Dx), or even Killer robots: lethal autonomous

weapons systems are able to select and engage targets

with little or no human intervention

2.1. How does artificial intelligence actually

work?

Artificial intelligence requires highly skilled

systems which are able to learn from humans or even

individually, by applying several learning methods,

how to reach a result by themselves through

autonomous and cognitive thinking. In order to

properly operate and gain a higher level of artificial

intelligence, these systems learn based on the data

usually stored in cloud, with the help of humans which

are responsible for guiding the learning process.

- Even in the initial stage of exploring the vast

realm of artificial intelligence, the consequences of an

improper use of data stored in cloud has kept recent

headlines active. The case refers to Facebook's leak of

data to Cambridge Analytics, a company which

employed several artificial intelligence programs in

order to analyze the data pertaining to a large number

of people so that certain benefits in political campaigns

were envisaged to be gained. European legislators

foresaw this type of situation and developed the

General Data Protection Regulation (GDPR) (EU)

2016/679.

3 ‘The Fourth Industrial Revolution’, Klaus Schwab, World Economic Forum, 2016.

4 Briefing issued in January 2018 by EPRS | European Parliamentary Research Service addressed to, the Members and staff of the European

Parliament as background material to assist them in their parliamentary work.

5 http://www.blplaw.com/expert-legal-insights/articles/blp-wins-contested-application-predictive-coding.

6 Richard Kemp, Legal Aspects of Artificial Intelligence, November 2016, available at www.kempitlaw.com, November 2016.

2.2. Practical analysis of cases in which

artificial intelligence is used in relation to legal field

Although in Romania, the implementation of

artificial intelligence is remote, most likely due to

limited legal framework protecting the parties using

such tools, the practical approach of other nations

implementing these tools is remarkable.

2.2.1. Predictive coding

For example, artificial intelligence has been used

by law firms for the analysis of high-volume data. In

one case, the English High Court issued a decision

approving the use of predictive coding technology for

electronic disclosure, at the request of both parties, in

Pyrrho Investments Ltd v MWB Property Ltd & Ors

[2016] EWHC 256 (Ch)5. The most substantial point of

dispute was over the most appropriate and

proportionate approach to disclosure by the respondent

who, it was accepted, held the significant majority of

the potentially relevant documents. BLP, an Englishbased law firm representing the respondent, proposed

that the documents were analyzed through predictive

Coding, which is a machine learning technology driven

by human tuition. Basically, a lawyer would initially

review a small set of documents. Then, the result is

analyzed by the technology and used to generate a

further sample for review. If the review is considered

accurate, the system is set to further review all the

documents, thus being cost and time efficient. The

English court ordered that predictive coding be used by

the respondents’ solicitors in this case, marking the first

such order made without the consent of all parties.

2.2.2. Smart contracts

Another field where artificial intelligence has

gained leverage is the contractual one, since by using

blockchain technology, parties are able to efficiently

record any data on a so-called smart contract. The

blockchain is a comprehensive, always up to date

accounting record or ledger of who holds what or who

transferred what to whom6. The principle of

blockchain, which became known once the Bitcoin

arose in influence, is that the contracting parties may

use it to record anything which they agree is the

contract's object, such as movable or immovable assets,

transactions, shares, financial instruments, databases

etc. Blockchain technology is used for legal agreements

in a similar way is was used for the creation of the

Bitcoin. It is based on cryptography, meaning it allows

the parties to authenticate their identities. Afterwards,

it creates immutable hashes (digets) of each ledger

record, the current page of records (block) and the

binding that links (chains) each block to the earlier

ones. Once it is created, the blockchain ledger is

distributed and a complete and updated copy is held on

the computers of each of the network participants -

contractual parties (miners) who help keep it up to date.

Roxana Mihaela CATEA 215

The software can also be used to make and

execute chains or bundles of contracts linked to each

other, all operating autonomously and automatically.

Here, the immutability of the hash (digest) representing

each ledger record can get in the way, when all the links

in what may end up as a long contractual chain need to

execute at the same time to keep the record straight. To

get around this, the blockchain is starting to be made

editable, with trusted administrators – called oracles –

able to change the database.

The underlying difference is that for the use of

smart contracts, one must adhere to a new contractual

codified infrastructure in which the operator and the

user of the contractual platform are linked together by

the software developer.

3. Legal and Regulatory Aspects

3.1. Is a new legal framework necessary?

Given that the application of artificial intelligence

is continuously growing, it is imperative to establish

whether the current legal framework suffices to address

the issues regarding the application and implementation

of artificial intelligence in our homes and in our

businesses.

The issue of a new regulatory background has

been addressed for some time now. At the USA

Committee of Technology, 12 October 2016, the

Executive Office of the President and the National

Science and Technology Council (NSTC)7, stated that

"If a risk falls within the bounds of an existing

regulatory regime, moreover, the policy discussion

should start by considering whether the existing

regulations already adequately address the risk, or

whether they need to be adapted to the addition of AI.

Also, where regulatory responses to the addition of AI

threaten to increase the cost of compliance, or slow the

development or adoption of beneficial innovations,

policymakers should consider how those responses

could be adjusted to lower costs and barriers to

innovation without adversely impacting safety or

market fairness".

Legal aspects regarding the utilization of artificial

intelligence determine consequences in the field of

contractual law, intellectual property, data privacy and

tort law.

3.2. Potential legal framework regulating

artificial intelligence in EU

Steps have been carried out at the level of the

European Union for the creation of a proper

background for the development of clear and

responsible guidelines for the creation of intelligent

machines and products. Law and regulation of

Artificial Intelligence and robots is emerging, fuelled

7 Preparing for the Future of Artificial Intelligence’, Executive Office of the President and the National Science and Technology Council

(NSTC), Committee of Technology, 12 October 2016, page 11 https://www.whitehouse.gov/sites/default/files/whitehouse_files/microsites

/ostp/NSTC/preparing_for_the_future_of_ai.pdf.

8 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2017-0051+0+DOC+XML+V0//EN

by the introduction of industrial and commercial

applications in society.

3.2.1. Report on Civil Law Rules on Robotics

In January 2017, the European Parliament

adopted a report on Civil Law Rules on Robotics that

includes recommendations to the Commission on Civil

Law Rules on Robotics (2015/2103/(INL).

One of the ideas discussed by the Members of the

European Parliament was the imperative necessity for

the European Commission to adopt legislation to

clarify liability issues. Also, a voluntary ethical code of

conduct on robotics for researchers and designers was

discussed, so that they operate in accordance with legal

and ethical standards and that robot design and use

respect human dignity. The report outlined the

importance of creating a European agency for robotics

and artificial intelligence.

Based on the issuance of this report, Parliament's

Committee on Legal Affairs (JURI) decided to hold a

public consultation specifically on the future of

robotics and artificial intelligence, with an emphasis on

civil law rules.

3.2.2. Resolution on robotics

Further to the Report on Civil Law Rules, on 16

February 2017 the European Parliament adopted a

Resolution on robotics8 with recommendations to the

Commission on Civil Law Rules on Robotics

(2015/2103(INL)).

The most relevant aspect of the Resolution on

robotics may be summarized as follows:

- the European Parliament called on the

Commission to propose common Union definitions of

cyber physical systems, autonomous systems, smart

autonomous robots and their subcategories,

- a comprehensive Union system of registration of

advanced robots should be introduced within the

Union’s internal market where relevant and necessary

for specific categories of robots, and calls on the

Commission to establish criteria for the classification

of robots that would need to be registered,

- the existing Union legal framework should be

updated and complemented, where appropriate, by

guiding ethical principles in line with the complexity of

robotics and its many social, medical and bioethical

implications

- it should always be possible to supply the

rationale behind any decision taken with the aid of

artificial intelligence that can have a substantive impact

on one or more persons’ lives; considers that it must

always be possible to reduce the artificial intelligence

system´s computations to a form comprehensible by

humans; considers that advanced robots should be

equipped with a ‘black box’ which records data on

every transaction carried out by the machine, including

the logic that contributed to its decisions,

216 Challenges of the Knowledge Society. Private Law

- asks the Commission to consider the designation

of a European Agency for Robotics and Artificial

Intelligence in order to provide the technical, ethical

and regulatory expertise needed to support the relevant

public actors, at both Union and Member State level, in

their efforts to ensure a timely, ethical and wellinformed response to the new opportunities and

challenges, in particular those of a cross-border nature,

arising from technological developments in robotics,

such as in the transport sector,

- Calls on the Commission and the Member States

to ensure that civil law regulations in the robotics sector

are consistent with the General Data Protection

Regulation and in line with the principles of necessity

and proportionality.

Discussions in relation to the adoption of a full

normative act and in relation to the harmonization of

current framework regarding product liability,

machinery standards and intellectual property are still

carried out.

3. Conclusions

Although recent legal developments have opened

discussions regading a new dimension of humanity’s

evolution, the outcome of these discussions is yet to be

effectively imprimed in a mandatory regulation, at least

at the level of the European Union.

Since artificial intelligence machines and

programs shall use the data collected from individuals

for their analysis, an important prevention step has

already been taken by Europeans through the adoption

of the The General Data Protection Regulation (GDPR)

(EU) 2016/679.

However, the necessity of a normative act regulating

aspects deriving from the liability of artificial intelligence

products still remains unadressed and must be considered

also from the perspective of its mandatory character. To

this end, it is imperative that the act adopted by the

European Union is a regulation and not a directive, which

Member States may implement with their own methods.

Also, given that the main economies of the United States

of America, Japan and Russia are not part of a common

union as connected as the European Union, similar rules

should be adopted in these countries, as well, so that

contractual partners around the world benefit from the

same protection.

Other aspects which must receive a final legal

regulation are the ones related to the common

understanding of the notion of a “robot”. Currently, the

European Parliament agreed on the several

characteristics of a “smart robot”, out of which it is

relevant to mention the possibility to aquire autonomy

through sensors or by exchanging data with its

environment (inter-connectivity) and the trading and

analyzing of that data and the adaptation of its behavior

and actions to the environment.

In addition, it is important that technical

specialists fully collaborate with legislators in order to

draft full and comprehensive legal standards for the

utilization of robotic machines. The development of

common technical standards should not be ignored

either, since this feature is likely to prevent or to solve

cases in which one party bases its claim on the other

party’s liability and responsibility for the autonomous

machine.

Last but not least, a controversial issue was

addressed by the European Parliament9 regarding

including a form of “electronic personhood” to ensure

rights and responsibilities for the most capable Artificial

Intelligence. An improper regulation of this aspect has

the most serious consequences in connection to liability

of damages produced by robotic machines, applicable

currently to non-man driven vehicles, for example.

References

 Alan Turing, Computing Machinery and Intelligence, Mind, October 1950

 Prof Nils J Nilsson, The Quest for Artificial Intelligence: A History of Ideas and Achievements’,

Cambridge University Press, 2010

 Klaus Schwab, The Fourth Industrial Revolution, World Economic Forum, 2016

 Briefing issued in January 2018 by EPRS | European Parliamentary Research Service addressed to, the Members

and staff of the European Parliament as background material to assist them in their parliamentary work

 Richard Kemp, Legal Aspects of Artificial Intelligence, November 2016, available at www.kempitlaw.com

 November 2016

 Preparing for the Future of Artificial Intelligence’, Executive Office of the President and the National

Science and Technology Council (NSTC), Committee of Technology, 12 October 2016, page 11

https://www.whitehouse.gov/sites/default/files/whitehouse_files/microsites/ostp/NSTC/preparing_for_the_

future_of_ai.pdf

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2017-

0051+0+DOC+XML+V0//EN

http://www.blplaw.com/expert-legal-insights/articles/blp-wins-contested-application-predictive-coding

https://www.theguardian.com/technology/2017/jan/12/give-robots-personhood-status-eu-committee-argues

9 https://www.theguardian.com/technology/2017/jan/12/give-robots-personhood-status-eu-committee-argues.

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