Artificial Intelligence (AI) is not an uncommon term, especially to followers of global governance and fintech. The term “Artificial Intelligence” was coined by John McCarthy at the Massachusetts Institute of Technology, as the science and engineering of making intelligent machines, especially intelligent computer programs. Roger C. Schank, in a 1987 paper laid down five attributes one would expect an intelligent entity to have: Communication, Internal knowledge, External knowledge, Goal-driven behaviour, and Creativity.
Often related to sci-fi as a capability of a machine to imitate intelligent behaviour, it is becoming more science and less fiction with changing global dynamics with computers, and now robots, replacing complex human activities. AI is a parasol locution that refers to information systems inspired by biological systems and encompasses multiple technologies including machine learning, deep learning, computer vision, natural language processing and machine reasoning.
As a transformative power, and considering the destructive technology of AI, it has the potential to demur many well-established legal principles in the long run. How law and policy will adapt to the advances in AI and trickle down to the values of the society is likely to vary by jurisdiction, depending on a variety of social, cultural, economic, and other factors. Unamended intellectual property laws, tax, data and labour legislation would have a negative impact and affect the functioning of automatic intelligence and robotics in India.
There has been a paradigm shift in the usage of AI from the digital world to the physical world as robots enable AI to transcend into the physical world which opens up unimaginable opportunities. The use of AI-based robots, IoT and blockchain mechanisms could act as a substitute for routine activities and leave humans to do the task that requires creativity and judgment.
Manufacturing was the first industry to exploit AI by using robots to assemble products and package them. Now, leading the AI revolution is the emergence of defense and space technology and data-driven fintech. While the global concern is that AI will create a job deficiency, it is practically only repetitive manual jobs that will be negatively affected, as there will be jobs created in industries that flourish on the development of educative, innovative, artistic process.
Global healthcare has seen the greatest deal flow of all the industries that AI is involved in. United Kingdom National Health Service is using Google’s DeepMind to detect health risks and scrutinize medical images. The biggest tech giants in the world, Google, Apple, Facebook, Amazon and Microsoft are each rivalling to create their own virtual assistants, your personal guides to help navigate the digital world. They are all ‘artificially intelligent’, which means they understand what you’re asking for and learn your preferences from your pattern of choices, select them from IoT through blockchain technology and deliver it to you via robotics.
The involvement of artificial intelligence in defense, space, administrative and security departments has raised several moral and legal issues regarding tortuous liability and superior responsibility. The law has widened this legal status to non-human entities as well, from corporations, ships, to other artificial legal persons. The legislative lacuna is the absence of law in force in India which recognizes artificially intelligent entities to be legal persons. This has fueled the debate of whether the need for such recognition has now arisen. The judicial and legislative question of whether legal personhood can be granted to an artificially intelligent entity trickles down to the question of whether the entity can and should be made the subject of legal rights and duties.
The essence of legal personhood lies in a comprehensive policy framework which empowers such entity the right to own property and the capacity to sue and be sued. The United Nations Convention on the Use of Electronic Communications in International Contracts recognized contracts formed by the interaction of an automated system and a natural person to be valid and enforceable. Unfortunately, the Indian Courts are yet to adjudicate upon the legal status of AI machines and robots. A constitutional recognition or judicial determination of which would clear up the existing debate of the applicability of existing laws to AI machines.
With the miraculous development of creativity, innovation and knowledge by AI, concerns pertaining to IP protection and ownership ought to be there in the minds of policymakers and lawmakers for enforcing the rights associated with the intellectual protection and proprietary rights. The Indian Copyright Act prerequisites that in order for a ‘work’ to qualify for copyright protection, it would first have to meet the ‘modicum of creativity’ standard laid down in the case of Eastern Book Company and Ors. v. D.B. Modak and Anr. Publication of patent claims using AI and blockchain technology would comprehensively help interdict obvious and easily derived ideas from being patented as they will form the corpus of the prior art that is available in the public domain. Section 1(j)(iii) of the Designs Act, 2000 defines the “Proprietor of a new or original design” as the author of the design and any other person, where the design has evolved from the original proprietor upon that person.
The evolution of informational privacy and data protection have become more prominent in light of the recent Aadhar judgment of the Supreme Court of India in the case of K.S Puttaswamy & Anr. v Union of India & Ors, wherein the right to privacy was held to be a fundamental right guaranteed under the Constitution of India. Taking into consideration this development, the Government of India set up a committee to analyze the data protection issues and to draft a comprehensive data protection framework, which is technology neutral and which deals with prominent issues such as the growing use of AI in India.
The validity of contracts and agreements entered through electronic means in India can be interpreted from Section 10A of the IT Act. Electronic contracts are treated like contemporary paper contracts, given that they satisfy all the essential conditions in the enforcement of a valid contract such as offer, acceptance, consideration, etc. Additionally, the IT Act defines “digital signatures” or “electronic signatures” and validation of the authentication of electronic records by using such digital/ electronic signatures. There is also substantial prospective for the applicability of AI in cross-border contract drafting, negotiations and decision-making exercises undertaken by multilateral treaties and Intergovernmental Agreements.
These developments in the tract of technology and internet have given rise to contemporary challenges to the traditional principles of taxation. The most contentious issues being (i) the issue of imputation of liability or the question of holding AI to be responsible for its actions; and (ii) the issue pertaining to the interplay between ethics, the law and AI and robotics systems. However, in order to strengthen the development and integration of AI systems with the industrial and social sector, it is pertinent to ensure that the current perplexities that exist with regard to AI systems are authoritatively addressed. Due to the lack of legal jurisprudence on this subject, there is an urgent social demand to frame a policy framework which will not only foster the development of AI but also ensure that the necessary safeguards are in place.
Adithya Anil Variath is a final year law student at the University of Mumbai’s School of Law. In the past he has worked as an intern with the Office of Minister of State for Law and Justice & Corporate Affairs, Government of India and Office of the Speaker, Kerala Legislative Assembly.
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