On the threshold of future, Artificial Intelligence has the same impact on
economy and society like the printing press had on the transmission of
culture in the Fifteenth Century, or the first industrial revolution had on
the means of production, or the invention of the internet in the 20th
century.
What impact does AI have on creative industry, including in this name also
the most genuine and valuable products of art, and on intellectual
property, and subsequently on copyright?
Let’s look at the context. The moment is historic.
1 The EU legislative process regarding Artificial Intelligence (AI) is on its
way.
The Commission started the proceeding on april 21, 2021. The Council
adopted its common position in December 2021.
On 14 June 2023, the Artificial Intelligence Act was voted on in its first
reading by the European Parliament (499 votes in favour, 28 against and
93 abstentions), with 771 amendments which significantly improved the
text, especially with regard to respect for the fundamental rights of the
person and the citizen, and other issues of strong ethical impact,
including the right to privacy, workers’ rights, health rights, and also
explicit attention to the correct protection of the environment.
In particular, high-risk AI systems are identified, which must be registered
in a specific European database.
These are systems relating to eight specific areas:
- Biometric identification and categorization of natural persons
- Management and operation of critical infrastructure
- Education and vocational training
- Employment, worker management and access to selfemployment
- Access to and enjoyment of essential private services and
public services and benefits - Law enforcement
- Migration, asylum and border control management
- Assistance in legal interpretation and application of the law.
All high-risk Artificial Intelligence systems must be validated before they
are put on the market and monitored and verified throughout their life
cycle
Generative AI, like ChatGPT, would have to comply with transparency
requirements: - Disclosing that the content was generated by AI
- Designing the model to prevent it from generating illegal content
- Publishing summaries of copyrighted data used for training
As regards Intellectual Property, it is explicitly mentioned 13 times in the
document, and copyright is mentioned 5 times.
The interesting fact is that only once, the first, does it refer to
intellectual property of authors:
(28a) The extent of the adverse impact caused by the AI system on the
fundamental rights protected by the Charter is of particular relevance
when classifying an AI system as high-risk. Those rights include the right
to human dignity, respect for private and family life, protection of
personal data, freedom of expression and information, freedom of
assembly and of association, and non-discrimination, right to education,
consumer protection, workers’ rights, of persons with disabilities, gender
equality, intellectual property rights, right to an effective remedy and to a
fair trial, right of defense and the presumption of innocence, right to good
administration. In addition to those rights, it is important to highlight that
children have specific rights as enshrined in Article 24 of the EU Charter
and in the United Nations Convention on the Rights of the Child
The other 12 times Intellectual Property refers to the intellectual
property rights of manufacturers of Artificial Intelligence systems
This is reasonable, it is necessary to guarantee the applicability of the rule
and ask for its compliance, but also a symptom of a structural weakness of
the issue of protection of the ownership of original creative content, cited
briefly in this general regulation
The topic is framed above all by addressing the issue of foundation
models of AI systems, and in particular of generative AI:
Amendment 101 Proposal for a regulation Recital 60 g (new)
In light of the nature and complexity of the value chain for AI system, it
is essential to clarify the role of actors contributing to the development
of AI systems. There is significant uncertainty as to the way foundation
models will evolve, both in terms of typology of models and in terms of
self governance. Therefore, it is essential to clarify the legal situation of
providers of foundation models. Combined with their complexity and
unexpected impact, the downstream AI provider’s lack of control over the
foundation model’s development and the consequent power imbalance
and in order to ensure a fair sharing of responsibilities along the AI
value chain,
Generative foundation models should ensure transparency about the
fact the content is generated by an AI system, not by humans.
Amendment 102 Proposal for a regulation Recital 60 h (new)
As foundation models are a new and fast evolving development in the
field of artificial intelligence, it is appropriate for the Commission and the
AI Office to monitor and periodically assess the legislative and governance
framework of such models and in particular of generative AI systems
based on such models, which raise significant questions related to the
generation of content in breach of Union law, copyright rules, and
potential misuse. It should be clarified that this Regulation should be
without prejudice to Union law on copyright and related rights, including
Directives 2001/29/EC, 2004/48/ECR and (EU) 2019/790 of the European
Parliament and of the Council.
Amendment 399 Proposal for a regulation Article 28 b (new)
Article 28 b Obligations of the provider of a foundation model - Providers of foundation models used in AI systems specifically intended
to generate, with varying levels of autonomy, content such as complex
text, images, audio, or video (“generative AI”) and providers who
specialize a foundation model into a generative AI system, shall in
addition a) comply with the transparency obligations outlined in Article 52
(1), b) train, and where applicable, design and develop the foundation
model in such a way as to ensure adequate safeguards against the
generation of content in breach of Union law in line with the generallyacknowledged
state of the art, and without prejudice to fundamental
rights, including the freedom of expression, c) without prejudice to Union
or national or Union legislation on copyright, document and make
sufficiently detailed publicly available summary of the use of training data
protected under copyright law.
The ultimate goal of this legislation is to establish a
paradigm, to which
the rest of the (Western) world should then adapt.
At the same time, the topic is dealt with in depth by the EU-USA Trade
and Technology Council, which intends to create (and in fact creates) a
privileged axis in transatlantic relations by bringing Europe and the
United States to share the legislative contents, since the preliminary
phase of drafting the text.
Every six months, the Council issues a Joint Statement, issue
simultaneously by the Council (which, although with an American
majority, would be a European institution) and by the White House,
precisely [ALL.3].
U.S.-EU Joint Statement of the Trade and Technology Council – 31 May
2023
“The United States and the European Union reaffirm their commitment to
a risk-based approach to AI….through the implementation of the Joint
Roadmap on Evaluation and Measurement Tools for Trustworthy AI and
Risk Management”, indeed already structured and started on December
1, 2022.
This cooperation has both short and long term objectives, some of which
of a most qualificant nature: like advancing shared terminologies and
taxonomies, defining AI standards, monitoring and measuring existing and
emerging AI risk, with the exploicit, and legitimate, ambition to acquire a
leadership in international standards
On 27 January 2023, the European Commission and the United States
enhanced our ability to cooperate through the signing of an
administrative arrangement expressing our intent to support
collaboration on advanced AI research focused on five areas which
represent shared significance and benefit: extreme weather and climate
forecasting, emergency response management, health and medicine
improvements, energy grid optimization, and agriculture optimization.
Unfortunately this document is not online, nor is it possible to read it for
the public.
This work will be without prejudice to EU and U.S. legislative work and
in full compliance with applicable law in this area.
In reality, there is an ongoing underground competition between the
European legislative process (let’s call it the EU AI Act in short) and the
American reference legislation, called “Artificial Intelligence Risk
Management Framework”, issued by NIST (National
Instihttps://www.google.it/maps/@45.4556617,9.1658764,13ztute of
Standards and Technology, www.nist.gov) in January 2023
In fact, through the Council the USA interacts with the EU (simplify the
parameters, reduce the extension of the application of the law, etc.), to
the point of reaching the hypothesis of accepting the equivalence
between the American and European regulations. (similarly to what
happened when, in times of Covid, the CTS validated the masks on the
basis of the assumption that they had been approved by the FDA, even
though the latter’s parameters are, as is known, extremely milder than
the European ones)
Which obviously cannot be the case, since the European law is extremely
more attentive to the defense of the subjective rights of people and
social groups, while the American approach focuses on the rights of the
market.
Indeed, the European regulation, as we have seen, explicitly requires that
the transparency of the AI supply chain also applies to systems produced
outside Europe, if intended for use in Europe, similarly to what is about to
be adopted regarding carbon footprint of goods produced outside Europe
and imported.
If this NIST document, which is the most in-depth document, talks about it
so little, it is not surprising that the EU-US Joint Study on Artificial
Intelligence does not talk about it at all, not even in relation to the very
serious topic of machine learning (which, in fact, must be fed with existing
contents, violating, or not violating, existing copyrights) [ALL.6: THE
IMPACT OF ARTIFICIAL INTELLIGENCE ON THE FUTURE OF WORKFORCES
IN THE EUROPEAN UNION AND THE UNITED STATES OF AMERICA An
economic study prepared in response to the US-EU Trade and Technology
Council Inaugural Joint Statement , MAY 2023]
This silence is extremely paradoxical if we consider that the central theme
of the study is the impact of artificial intelligence on employment, where
any copyright infringement obviously has a heavily negative effect on all
intellectual professions, whatever field they belong to.
The only quote of the document about intellectual property is about the
use of data deriving from government collection of facial recognition,
shared with private companies signing public contracts in China: this way
they can develop more effective results from machine learning (Beraja,
Yang, and Yuchtman, 2022). It’s true, and it happens in the same way also
in the US. But facial recognition content is not a matter of intellectual
property, but of privacy.
And so, this preparatory document for the joint declaration EU-US does
not even name the problem of feeding AI algorithm with data legally and
legitimally owned by someone, nor the consequences impacting his (or
her) workplace.
On the other side, also China is becomind a strong defender of Intellectual
property, for the practical reason that the country is becoming the
strongest owner of technological patents, both developend inland and
purchased by other countries.
So, on October 24, 2023 (less than one month ago) China National
Intellectual Property Administration established a China Copyright
Protection Center in Sanya, a one stop service system where granting a
patent is shortened from months to a few working days.
Indeed, in April 21, 2023, CNIPA hold in Beijing the second Intellectual
property week, dedicated both to technological patents and creative
intellectual property, as a powerful instrument to enforce the
competitiveness of the Nation.
It is expecially in the past 5 years that China has launghed a massive
campaign to promote IP as a way to “foster a favourable business
environment” (2019), or even to “target poverty alleviation”, as stated in
the first IP publicity week, held in 2020 (20-26/4). Since 2021, IP has been
steadily indicated as the most strategic tool for enhancing development:
“Striving to build the new devekopment paradigm”, 2021, up tp 2023:
“Strengthening legal protection of IPR to support a comprehensive
innovation”.
Also in force of this new steady way adopted to manage business
relationships, at a national and international level, the China International
Import Expo has seen an unprecedented presence of US companies (more
than 200), leaded by the US Ambassador to China mr. Nicholas Burns,
expressing his wishes for “a more stable and productive” trade and
economic relationship with China.
On the same path, China-EU relations are also improving, ad stated after
the 10th China-EU High-level Economic and Trade Dialogue, held in Beijing
on September 25 this year, focused amont other topics also on
cooperation in Intellectual Property rights protection.
So, it’s clear that many things are happening also very far away from here,
where maybe many operators don’t even think it were possible
Infact, we also have to skip some prejudice of ours, if we want to stay
updated, and in a condition to stay competitive Even through such a
very rapid and essential glace to what’s happening
around the world, it is more than clear that IP has definitely been
detected as the most powerful driver of development.
For this reason a fair collecting system for IP rights is absolutely necessary
to guarantee a fair remuneration to the legitimate owners of these rights.
Still, the worls is moving fast, and probably new structures, technologies
and ideas are needed to keep the system working, while so many
variables around us are changing.
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