Artificial Intelligence and the Lacunae of Indian Laws

Profile of the author: Shriya Ojha is a second-year student at Faculty of Law, University of Delhi.

Introduction

Artificial intelligence (AI) is the ability of a digital computer or a computer-controlled robot to perform tasks, commonly associated with intelligent beings. The term is frequently applied to the project of developing systems endowed with the intellectual processes characteristic of humans, such as the ability to reason, discover meaning, generalize, or learn from past experience. [1] AI has become the ubiquitous reality and the unavoidable future and is predicted to contribute majorly to the world economies. Accenture has done an analysis of 12 major economies and has predicted that the adoption of AI has the potential to double the economic growth rate by 2035. [2] The powerful nature of this technology also poses a threat of misuse, and therefore India must have a legal infrastructure in place to maximise the benefits and avoid its abuse.

Government Initiatives

The advancement of technology, fast-paced consumerism etc. has laced the private sector with a multitude of AI applications with respect to automation of the business process, chatbots, image recognition, analysing consumer behaviour etc. In recent years, the Government of India has also been taking gigantic steps in the direction of AI adoption to promote social and economic development. Some of these attempts can be seen in the form of various reports and committees being set-up to conduct research in the field of AI for its effective adoption -

-Niti Aayog published a discussion paper on a National Strategy on Artificial Intelligence [3] in 2018 discussing the strategy that the state should adopt to leverage AI for economic growth, social development, and inclusive growth. It identified five sectors that should be the focus of AI adoption: Healthcare, Agriculture, Education, Smart Cities/Infrastructure, Smart Mobility, and Transportation. 

-In February 2018, the government of India established a multi-stakeholder task force comprising the Government, Services, Academia, Industry, Professionals and Start-ups to study the strategic and national security implications of AI for India. The report made recommendations relating to making India a significant power of AI in defence, specifically in the area of aviation, naval, land systems, cyber, nuclear and biological warfare including both defensive and offensive needs along with counter AI needs. It also made recommendations for policy and institutional interventions required to regulate and encourage robust AI-based technologies.[4]

-The Ministry of Electronics and Information Technology (MeitY) also established four committees to help encourage research regarding AI in context of citizen-centric services; data platforms; skilling, re-skilling and R&D; legal, regulatory and cybersecurity perspectives etc.[5]

These measures explicitly depict the state’s inclination towards research and adoption of AI and the plethora of possibilities that come with it. However, this will confront our legal system with several corresponding challenges:

Legal Personality of AI

The essence of legal personhood lies in whether such an entity has the right to own property and the capacity to sue and be sued. As per Indian law, legal personhood has not only been granted exclusively to humans but also to non-human entities also such as companies’, corporate houses, and other legal persons. The question of personhood of AI will also bring forth a few subsequent questions like the existence of rights and duties of such a legal entity, nature of liability, contractual obligations etc. of AI. On 4 July 1981, the first robot homicide was reported. An engineer, Kenji Udara was performing some maintenance work on a robot at Kawasaki Heavy Industries plant. Kenji did not completely turn off the robot. As he entered a restricted area of the manufacturing line, the robot detected him as an obstacle and threw him on an adjacent machine using its powerful hydraulic arm which led to the death of Kenji instantaneously. [6] Who would be held liable? What happens in such situations of negligence, accidents, breach of rights of individuals by AI? Do humans need legal protection from the machines? At present, no law in force recognises AI as a person and a global lack of jurisprudence in this regard aggravates the situation further.

Lack of a comprehensive IPR structure around AI

Today, machines can be creators. AI applications are capable of creating intellectual property such as music, art, literature etc. So, does AI have Intellectual Property Rights? Till date, copyright has been granted only to natural or legal persons and any machine or tool used for creating any original work is only considered as a mere tool. Thus, AI has not been granted any copyright in its name. The international community has upheld the same. In Feist Publications v. Rural Telephone Service Company (USA) [7], the Court ruled that the copyright law only protects the fruits of intellectual labour, that are founded in the creative powers of the mind. Similarly, the Court of Justice of the European Union (CJEU) in the case of Infopaq International A/S v Danske Dagbaldes Forening [8] reiterated that copyright only applies to original works, and that originality must reflect the author's own intellectual creation. An anomaly in this regard has been in China wherein a court in Shenzhen gave copyright protection to an essay written by a software called Dreamwriter. Even the World Intellectual Property Rights Organization (WIPO) is still in the process of drafting guidelines to address this legal dilemma.

Data protection and privacy concerns

AI models, solutions and their application depend on generation, collection, and processing of large amounts of data on individual, entity and community behaviour. Data collection without proper consent, the violation of the privacy of personal data, inherent selection biases and resultant risk of profiling and discrimination for specific purposes and the “Black-box” phenomenon of AI are some of the inherent risks involved with big data collection. The Cambridge Analytica case was a classic example of how big data can be misused for targeted advertising and unethical purposes. The Personal Data Protection Bill 2019 [9], based on the Srikrishna Committee report, was the first privacy and data protection legislation in India. To a large extent, the bill limits the effects of automated decisions, particularly by allowing individuals to control their personal data and its use, as well as structural changes, aiming at entities using personal data. However, the bill is not as robust as found in the General Data Protection Regulation (2018) of the European Union.

Competition law

Another concern regarding collection, processing and profiling of big data is that it has evidently accorded a dominant position to some enterprises that predict consumer behaviour pattern and develop cost efficiencies. The legal framework of competition law around AI also needs to evolve to maintain fair competition in the market and protect the interests of the consumers.

Conclusion

Either law drives societal changes, or the societal changes drive law. The advent of AI and the consequential requirement of legal changes is a situation of the latter kind. It is important that these legal lacunas are dealt in tandem with the adoption of AI and the legal system is not left with a vacuum when these questions arise in the court of law.

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

FAQs

Q. Who is currently the IT and Communications Minister of India?

Ans. Mr Ravi Shankar Prasad.

References

[1] B.J. Copeland, Artificial Intelligence, Encyclopaedia Britannica (July 30, 2020) https://www.britannica.com/technology/artificial-intelligence

[2] Mark Purdy and Paul Daugherty, Why Artificial Intelligence is the future of growth | Accenture Canada, Artificial Intelligence is the Future of Growth

[3] NITI AAYOG, DISCUSSION PAPER: NATIONAL STRATEGY FOR ARTIFICIAL INTELLIGENCE (June 2018), http://niti.gov.in/writereaddata/files/document_publication/NationalStrategy-for-AI-Discussion-Paper.pdf, archived at https://perma.cc/N7UE-SBLP.

[4] THE ARTIFICIAL INTELLIGENCE TASK FORCE, REPORT OF THE ARTIFICIAL INTELLIGENCE TASK FORCE (Mar. 21, 2018), http://dipp.nic.in/sites/default/files/Report_of_Task_Force_on_ArtificialIntelligence_20March2018_2.pdf, archived at https://perma.cc/7FS9-NYQX. 

[5] Digital India: IT Ministry Set Up Four Committees to Encourage AI Research, LIVEMINT (Feb. 10, 2018), https://www.livemint.com/Politics/h2NthxiA7u5VhiDJqfTjcM/Digital-India-IT-ministry-set-up-four-committees-to-encoura.html, archived at https://perma.cc/7VWU-HM6L.

[6] Paul S. Edwards, Killer robot: Japanese worker first victim of technological revolution, Deseret News Dec. 8, 1981, at A1.

[7] Feist Publications v. Rural Telephone Service Company 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991)

[8] Infopaq International A/S v Danske Dagblades Forening (C-5/08) EU:C: 2009:465 (16 July 2009)

[9] https://www.prsindia.org/theprsblog/personal-data-protection-bill-2019-all-you-need-know