For some time, the EU has been contemplating the introduction of a new Directive to make it easier for consumers to bring claims for a range of alleged harms caused by AI systems, commonly referred to as the AI Liability Directive (the “AILD”).
The EU, UK and US sign international treaty addressing risks of AI
On 5 September 2024, the EU, UK and US joined seven other states[1] in signing the Council of Europe Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law (“Treaty”) – the first international treaty governing the safe use of artificial intelligence (‘‘AI’’).[2] The Treaty remains subject to ratification, acceptance or approval by each signatory and will enter into force on the first day of the month following a period of three months after the date on which five signatories, including at least three Council of Europe member states, have ratified it. Any state worldwide is eligible to join the Treaty, subject to the unanimous approval of the signatories, and to commit to complying with its provisions. The Treaty is expected to have a positive impact on international cooperation on addressing AI-related risks.
NIST’s New Generative AI Profile: 200+ Ways to Manage the Risks of Generative AI
On July 26th, the National Institute of Standards and Technology (“NIST”) released its Artificial Intelligence Risk Management Framework: Generative Artificial Intelligence Profile (the “Profile”),[1] laying out more than 200 suggested actions to mitigate the risks of generative artificial intelligence (“Gen AI”). This Profile is a companion to NIST’s Artificial Intelligence Risk Management Framework (the “Framework”), which was released in January of 2023.[2] The Framework aims to act as a resource for entities dealing with all manner of Gen AI systems to help them manage risks and promote trustworthy and responsible development of AI. The Profile is intended to be an implementation of the Framework, providing concrete steps to manage AI risks.
The Subject of AI: New USPTO Guidance on the Subject Matter Eligibility of AI Inventions
As inventors, attorneys and patent examiners grapple with the impacts of AI on patents, the United States Patent and Trademark Office (the “USPTO”) has released guidance concerning the subject matter patent eligibility of inventions that relate to AI technology.[1] The impetus for this guidance was President Biden’s Executive Order on Safe, Secure and Trustworthy Development and Use of Artificial Intelligence, which directed the USPTO to issue guidance to patent examiners and applicants regarding patent subject matter eligibility in order to address innovation in AI and other critical and emerging technologies.
French data protection authority launches new public consultation on the development of AI systems
On 2 July, the French data protection supervisory authority – Commission Nationale de l’Informatique et des Libertés (CNIL) – launched a new public consultation on the development of AI systems. The public consultation is on (i) a new series of how-to sheets aimed at providing clarifications and recommendations with respect to seven issues related to the development of AI and data protection and (ii) a questionnaire on applying the GDPR to AI models trained with personal data. Below we set out a summary of the main takeaways.
The AI Act has been published in the EU Official Journal
1. Background: three years of legislative debate
Today, on July 12, 2024, EU Regulation No. 1689/2024 laying down harmonized rules on Artificial Intelligence (“Regulation” or “AI Act”) was finally published in the EU Official Journal and will enter into force on August 1, 2024. This milestone is the culmination of three years of legislative debate since the EU Commission’s first proposal for a comprehensive EU regulation on AI in April 2021. [1]
Anthropic Wins Transfer to California in AI Copyright Lawsuit
This week, a federal court in Tennessee transferred to California a lawsuit brought by several large music publishers against a California-based AI company, Anthropic PBC. Plaintiffs in Concord Music Group et al. v. Anthropic PBC[1] allege that Anthropic infringed the music publishers’ copyrights by improperly using copyrighted song lyrics to train Claude, its generative AI model. The music publishers asserted not only direct copyright infringement based on this training, but also contributory and vicarious infringement based on user-prompted outputs and violation of Section 1202(b) of the Digital Millennium Copyright Act for allegedly removing plaintiffs’ copyright management information from copies of the lyrics. On November 16, 2023, the music publishers also filed a motion for a preliminary injunction that would require Anthropic to implement effective “guardrails” in its Claude AI models to prevent outputs that infringe plaintiffs’ copyrighted lyrics and preclude Anthropic from creating or using unauthorized copies of those lyrics to train future AI models.
NIST Delivers Draft Standards on AI and Launches GenAI Evaluation Program in Furtherance of President Biden’s Executive Order on AI
Late last month, the Department of Commerce’s National Institute of Standards and Technology (“NIST”) released four draft publications regarding actions taken by the agency following President Biden’s executive order on AI (the “Order”; see our prior alert here)[1] and call for action within six months of the Order. Adding to NIST’s mounting portfolio of AI-related guidance, these publications reflect months of research focused on identifying risks associated with the use of artificial intelligence (“AI”) systems and promoting the central goal of the Order: improving the safety, security and trustworthiness of AI. The four draft documents, further described below, are titled:
State and Federal Legislation Target AI Deepfakes
There has been a push at the state and federal level to regulate AI-generated deepfakes that use the voices and likenesses of real people without their approval. This legislative momentum stems from a series of high profile incidents involving deepfakes that garnered public attention and concern. Last year, an AI-generated song entitled “Heart on My Sleeve” simulated the voices of recording artists Drake and The Weeknd. The song briefly went viral before being pulled from streaming services following objections from the artists’ music label. Another incident involved an advertisement for dental services that used an AI-generated Tom Hanks to make the sales pitch. As AI becomes more sophisticated and accessible to the general public, it has raised concerns over the misappropriation of people’s personas. In recent months, several states have introduced legislation targeting the use of deepfakes to spread election-related misinformation. At the federal level, both the House and Senate are considering a federal right of publicity that would give individuals a private right of action. At the state level, Tennessee has become the first state update its right of publicity laws targeted towards the music industry, signing the Ensuring Likeness Voice and Image Security (the “ELVIS Act”) into law on March 21, 2024, which takes effect July 1, 2024.
UPSTO Issues “Significant” Guidance on Patentability of AI-Assisted Inventions, but unlike USCO, Does Not Require Disclosure of AI Involvement
The United States Patent and Trademark Office (“USPTO”) issued guidance on February 13, 2024 (the “Guidance”) regarding the patentability of inventions created or developed with the assistance of artificial intelligence (“AI”), a novel issue on which the USPTO has been seeking input from various public and private stakeholders over the past few years. President Biden mandated the issuance of such Guidance in his executive order on AI (see our prior alert here)[1] in October 2023. The Guidance aims to clarify how patent applications involving AI-assisted inventions will be examined by patent examiners, and reaffirms the existing jurisprudence maintaining that only natural persons, not AI tools, can be listed as inventors. However, the Guidance clarifies that AI-assisted inventions are not automatically ineligible for patent protection so long as one or more natural persons “significantly contributed” to the invention. Overall, the Guidance underscores the need for a balanced approach to inventorship that acknowledges both technological advancements and human innovation. The USPTO is seeking public feedback on the Guidance, which is due by May 13, 2024.