Leslie et al. on Human Rights, Democracy, and the Rule of Law Assurance Framework for AI Systems

David Leslie (The Alan Turing Institute) et al. have posted “Human Rights, Democracy, and the Rule of Law Assurance Framework for AI Systems: A Proposal” on SSRN. Here is the abstract:

Following on from the publication of its Feasibility Study in December 2020, the Council of Europe’s Ad Hoc Committee on Artificial Intelligence (CAHAI) and its subgroups initiated efforts to formulate and draft the possible elements of a legal framework on artificial intelligence, based on the Council of Europe’s standards on human rights, democracy, and the rule of law. This document was ultimately adopted by the CAHAI plenary in December 2021. To support this effort, The Alan Turing Institute undertook a programme of research that explored the governance processes and practical tools needed to operationalise the integration of human rights due diligence with the assurance of trustworthy AI innovation practices.

The resulting output, Human Rights, Democracy, and the Rule of Law Assurance Framework for AI Systems: A proposal, was completed and submitted to the Council of Europe in September 2021. It presents an end-to-end approach to the assurance of AI project lifecycles that integrates context-based risk analysis and appropriate stakeholder engagement with comprehensive impact assessment, and transparent risk management, impact mitigation, and innovation assurance practices. Taken together, these interlocking processes constitute a Human Rights, Democracy and the Rule of Law Assurance Framework (HUDERAF). The HUDERAF combines the procedural requirements for principles-based human rights due diligence with the governance mechanisms needed to set up technical and socio-technical guardrails for responsible and trustworthy AI innovation practices. Its purpose is to provide an accessible and user-friendly set of mechanisms for facilitating compliance with a binding legal framework on artificial intelligence, based on the Council of Europe’s standards on human rights, democracy, and the rule of law, and to ensure that AI innovation projects are carried out with appropriate levels of public accountability, transparency, and democratic governance.

Lim on B2B Artificial Intelligence Transactions: A Framework for Assessing Commercial Liability

Ernest Lim (National University of Singapore – Faculty of Law) has posted “B2B Artificial Intelligence Transactions: A Framework for Assessing Commercial Liability” on SSRN. Here is the abstract:

Business to business (“B2B”) artificial intelligence (“AI”) transactions raise challenging private law liability issues because of the distinctive nature of AI systems and particularly the new relational dynamics between AI solutions providers and procurers. This article advances a three-stage framework comprising data management, system development and implementation, and external threat management. The purpose is to unpack AI design and development processes involving the relational dynamics of providers and procurers in order to understand the parties’ respective responsibilities. Applying this framework to English commercial law, this article analyses the potential liability of AI solutions providers and procurers under the Supply of Goods and Services Act and the Sale of Goods Act. The assumption that only AI solutions providers will be subject to liability, or that no party will be liable due to the “autonomous” nature of AI systems, is rejected.

Sznajder on Zero-Price Practices on Social Media Markets Under EU Abuse of Dominance Assessment

Marta Sznajder (University of Warsaw – Centre for Antitrust and Regulatory Studies) has posted “No Strings Attached? Zero-Price Practices on Social Media Markets Under EU Abuse of Dominance Assessment” (Yearbook of Antitrust and Regulatory Studies Vol. 2021, 14(24)) on SSRN. Here is the abstract:

Do customers pay too little when they pay nothing for accessing a social media platform ‘for free’, and/or do they pay too much? These ‘free’ online services attract customers even if they come at personal information or attention costs. As competition law traditionally focuses on positive prices, ‘free’ services raise the question whether and how they could be assessed as potentially harmful to competition and consumers. Thus, the aim of this paper is to discuss the extent to which EU competition law can be applied to evaluate unilateral abusive pricing practices of social media platforms providing ‘free’ services to customers. It explores the economic characteristics and competitive dynamics of social media platforms, contrasts the traditional framework for assessment of abuse of dominance, predatory pricing, and excessive pricing with the challenges posed by their ‘free’ services, as well as offers recommendations.

Turillazzi et al. on The Digital Services Act: An Analysis of Its Ethical, Legal, and Social Implications

Aina Turillazzi (Tilburg University) et al. have posted “The Digital Services Act: An Analysis of Its Ethical, Legal, and Social Implications” on SSRN. Here is the abstract:

In December 2020, the European Commission issued the Digital Services Act (DSA), a legislative proposal for a single market of digital services, focusing on fundamental rights, data privacy, and the protection of stakeholders. The DSA seeks to promote European digital sovereignty, among other goals. This article reviews the literature and related documents on the DSA to map and evaluate its ethical, legal, and social implications. It examines four macro-areas of interest regarding the digital services offered by online platforms. The analysis concludes that, so far, the DSA has led to contrasting interpretations, ranging from some stakeholders expecting it to be more challenging for gatekeepers, to others objecting that the proposed obligations are unjustified. The article contributes to this debate by arguing that a more robust framework for the benefit of all stakeholders should be defined.

Hugendubel on Blockchain Technology and Intellectual Property – A Basic Introduction

Julia Hugendubel (CMS) has posted “Blockchain Technology and Intellectual Property – A Basic Introduction” on SSRN. Here is the abstract:

Blockchain technology is predicted to have a major impact on the intellectual property (IP) ecosystem. More and more projects are being launched, both in the public and private sector. The World Intellectual Property Organization (WIPO) has built up a Blockchain Task Force and is preparing a new WIPO Standard to encompass all types of IP rights and the entire IP lifecycle; the German Government published a strategy paper on blockchain with a chapter on applications in the creative arts sector; a European Blockchain Service Infrastructure is being built up; the European Union Intellectual Property Office (EUIPO) established an Anti-Counterfeiting Forum as part of the broader EU strategy to create a blockchain ecosystem and now has its own blockchain for trademarks and designs in the EU. Furthermore, LVMH, with brands such as Louis Vuitton, developed its own blockchain to track luxury goods; Kodak started a blockchain initiative for image rights management; music and film streaming are offered on blockchain platforms; sports clubs discuss micro-licensing of their IP rights; digital fashion is created for distribution using blockchain.

Moreover, news abounds of blockchain-based non-fungible tokens (NFTs) representing basically everything imaginable – both digital and physical – in the IP ecosystem, to track the origin of art and all manner of products. However, interestingly enough, as early as 2012 a whitepaper was published linking the idea of smart property by Nick Szabo and digital collectibles to blockchain and at the same time introducing the first kind of NFTs, coloured coins.

The developments in the blockchain space, including in the area of IP, are progressing at a rapid pace, both from a technological and a value perspective. For example, the value of crypto art traded on blockchain from 2018 to 2020 was estimated at about 15 million US Dollar (with about 8.2 million US Dollar worth of crypto artwork in December 2020 ). In March 2021, the most expensive piece of artwork linked to an NFT in history was sold by Mike Winkelmann (Beeple) for 42,329.453 Ether, at the time worth 69,346,250 million US Dollar. The NFT marketplace OpenSea has set and then beat daily records several times, reaching a new peak of 322,982,301 million US Dollar of trading volume on 29 August 2021.

Nevertheless, many applications for IP matters are still in their infancy. The reason for this might lay, aside from the rather complex technological details, in uncertainties about their regulation and legal standing in court, such as the recognition of a legal binding smart contract.

Therefore, the article introduces the very basic features of blockchain technology and blockchain-based IP applications. The article then dives into concrete IP use cases that are currently offered and developed on the market. It also gives a general overview of opportunities and existing challenges for the IP ecosystem. The legal perspective is mainly a German and European one.