AI Regulation

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On October 30, 2023, the Biden Administration issued a landmark Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the “Order”), directing the establishment of new standards for artificial intelligence (“AI”) safety and security and laying the foundation to ensure the protection of Americans’ privacy and civil rights, support for American workers, promotion of responsible innovation, competition and collaboration, while advancing America’s role as a world leader with respect to AI.

On October 19, 2023, the U.S. Copyright Office announced in the Federal Register that it will consider a proposed exemption to the Digital Millennium Copyright Act’s (“DMCA”) anti-circumvention provisions which prohibit the circumvention of any technological measures used to prevent unauthorized access to copyrighted works.  The exemption would allow those researching bias in artificial intelligence (“AI”) to bypass any technological measures that limit the use of copyrighted generative AI models.

On October 30, 2023, the G7 Leaders published a Statement on the Hiroshima Artificial Intelligence (“AI”) Process (the “Statement”).[1] This follows the G7 Summit in May, where the leaders agreed on the need to address the risks arising from rapidly evolving AI technologies. The Statement was accompanied by the Hiroshima Process International Code of Conduct for Organizations Developing Advanced AI Systems (the “Code of Conduct”)[2] and the Hiroshima Process International Guiding Principles for Advanced AI Systems (the “Guiding Principles”).[3]

On September 6, 2023, California Governor Gavin Newsom signed Executive Order N-12-23 (the “Executive Order”) relating to the use of generative artificial intelligence (“GenAI”) by the State, as well as preparation of certain reports assessing the equitable use of GenAI in the public sector.  The Executive Order instructs State agencies to look into the potential risks inherent with the use of GenAI and creates a blueprint for public sector implementation of GenAI tools in the near future. The Executive Order indicates that California is anticipating expanding the role that GenAI tools play in aiding State agencies to achieve their missions, while simultaneously ensuring that these State agencies identify and study any negative effects that the implementation of GenAI tools might have on residents of the State.  The Executive Order covers a number of areas, including:

GitHub, acquired by Microsoft in 2018, is an online repository used by software developers for storing and sharing software projects.  In collaboration with OpenAI, GitHub released an artificial intelligence-based offering in 2021 called Copilot, which is powered by OpenAI’s generative AI model, Codex.  Together, these tools assist software developers by taking natural language prompts describing a desired functionality and suggesting blocks of code to achieve that functionality.  OpenAI states on its website that, Codex was trained on “billions of lines of source code from publicly available sources, including code in public GitHub repositories.” 

As we continue to see the rapid development of digital technologies, such as artificial intelligence (“AI”) tools, legislators around the world are contemplating how best to regulate these technologies.  In the UK, the Government has adopted a “pro-innovation” agenda, with the aim of making the UK “an attractive destination for R&D projects, manufacturing and investment, and ensuring [the UK] can realise the economic and social benefits of new technologies as quickly as possible.”[1] 

On 16 March 2023, the US Copyright Office (“USCO”) published guidance on the registration of works containing AI-generated content. The USCO’s policy statement was released against the backdrop of the proliferation of generative AI tools which are able to create content based on user prompts. The USCO ultimately concluded that the “authorship” requirement of US copyright law refers to “human authorship” (in line with prior case law) and appears to reject the extension of copyright to works generated with the aid of AI technology outside of the user’s control.

In September 2022, the European Commission published its proposal for a new product liability directive (“PLD”), and a proposal for a directive on adapting non-contractual civil liability rules to artificial intelligence (“AILD”).