Beatriz Botero Arcila (Institut d’Etudes Politiques Paris (Sciences Po) Sciences Po Law Ecole Droit Sciences Po) has posted “AI Liability Along the Value Chain” (Published by Mozilla Foundation) on SSRN. Here is the abstract:
Policymakers around the world are increasingly preoccupied with identifying mechanisms to better assign accountability and liability throughout the AI value chain. Particularly in the EU, discussions around civil liability and AI received significant attention after the proposal of an AI Liability Directive (AILD) in 2022. While this proposal was recently withdrawn by the European Commission, the challenges posed by AI for civil liability and harmed individuals’ ability to seek redress remain more relevant than ever amid increasing adoption of AI across sectors.
This report thus seeks to provide more conceptual clarity to these challenges and provide recommendations on what an effective AI liability framework could look like. Though it is common to think of AI systems as a singular tool, AI systems are often developed and deployed in a value chain that involves numerous actors that participate throughout the stages of creation, fine-tuning, and implementation of these technologies, or that sell and supply key components such as pre-labeled data.
When designing a liability system for this type of multi-party scenario, there are many questions to consider: should all parties in the value chain be held equally liable when harm occurs? Or should each actor only be held liable for the extent to which they are responsible? How easy is it to establish the contribution of each party? (Spoiler alert, it may be very hard.) Another question lawyers will be familiar with is what is the right standard — should AI actors be held liable only when they fail to take the right safety measures? Or should they be held liable regardless of whether they took safety measures, simply because by developing or deploying an AI system or model they created a risk?
This Report discusses these questions and the complexities of assigning liability along the AI value chain, given the involvement of multiple actors in the design, development, and deployment of AI systems. The Report explores various configurations of AI value chains, the roles of different actors, and how companies allocate liability amongst them via contracts and terms. It then examines different policy choices for designing liability regimes.