When is new law needed and when are patches of existing legal tools preferrable?
In October 2020 the European Parliament issued three Resolutions on the ethical and legal aspects of Artificial Intelligence software systems (“AI”): Resolution 2020/2012(INL) on a Framework of Ethical Aspects of Artificial Intelligence, Robotics and related Technologies (the “AI Ethical Aspects Resolution”), Resolution 2020/2014(INL) on a Civil Liability Regime for Artificial Intelligence (the “Civil Liability Resolution”), and Resolution 2020/2015(INI) on Intellectual Property Rights for the development of Artificial Intelligence Technologies (the “IPR for AI Resolution”).
All three Resolutions acknowledge that AI will bring significant benefits for a number of fields (business, the labour market, public transport, the health sector). However, as identified in the AI Ethical Aspects Resolution, “there are concerns that the current Union legal framework, including the consumer law and employment and social acquis, data protection legislation, product safety and market surveillance legislation, as well as antidiscrimination legislation may no longer be fit for purpose to effectively tackle the risks created by artificial intelligence, robotics and related technologies” (K). Therefore, “in addition to adjustments to existing legislation, legal and ethical questions relating to AI technologies should be addressed through an effective, comprehensive and future-proof regulatory framework of Union law reflecting the Union’s principles and values as enshrined in the Treaties and the Charter of Fundamental Rights that should refrain from over-regulation, by only closing existing legal loopholes, and increase legal certainty for businesses and citizens alike, namely by including mandatory measures to prevent practices that would undoubtedly undermine fundamental rights” (L). It is in this context that the Parliament makes concrete legislative proposals in each Resolution within its respective subject-matter.
However, all three Resolutions are also adamant on not providing AI software systems with legal personality. To our mind all three make a mistake, failing to see that their otherwise excellent assessment of the problems at hand would best be served by embracing change and not shying away from it.