Artificial Intelligence: Governance and Leadership - A submission to the Australian Human Rights Commission and World Economic Forum

This submission addresses the white paper on Artificial Intelligence: Governance and Leadership produced by the Australian Human Rights Commission. In particular, it focuses upon the dimensions of intellectual property, commercial law, and regulation. • In regards to intellectual property, there has been significant case law, particularly in the United States dealing with the interaction of established IP laws with developments in AI and robots. • Commercial aspects of the development of AI and robots should be governed using either the Competition and Consumer Act 2010 and the Australian Consumer Law or modifications to them to specifically address problems. • There are a number of regulatory responses that can respond to developments in AI and robots including legislative amendments, self-regulation and soft law approaches such as nudging. The significant commercial impact of developments in these new technologies will require a hardened and practiced regulator such as the ACCC to be effective. Recommendation 1. Intellectual property law plays a key role in the regulation of artificial intelligence, and other related fields of technology. Intellectual property holders will hold considerable influence in terms of the use and exploitation of artificial intelligence technologies. Australia has a diverse array of regulators in the field. IP Australia has oversight of industrial forms of property – such as patents, trade marks, and designs. The Department of Communications and the Arts has carriage of copyright law. The Australian Competition and Consumer Commission also plays a role in relation to misleading or deceptive conduct. At an international level, the World Intellectual Property Organization has played a significant role in tracking technology trends in respect of AI, particularly through patent information. There may well need to be reforms to intellectual property law, policy, and practice in light of developments in AI. Recommendation 2 The Australian Competition and Consumer Commission, or a newly created technology subdivision of the ACCC should be the body that overseas and enforces the amended legislation in relation to consumer transactions that involve problems associated with developments in AI. This is for two reasons: Firstly, the ACCC already has expertise in developing, enforcing and educating Australians on regulation built up over 20 years of experience in consumer protection. Secondly, there is already a vast and powerful regulatory enforcement regime in place under the Competition and Consumer Act that could, if need be, be amended to apply to problems associated with developments in AI. Recommendation 3 If a new body such as the proposed Responsible Innovation Organisation is created, its role should be limited to education and coordination between the various regulatory bodies regulating AI. Because the rate and degree of change in AI development is so rapid and deep, and the possible uses to which it might be put is unknowable, no single agency could maintain full vigilance or control over these developments. If that proves to be the case, then any single agency that did take on a governance role would likely fail. Any agency that does take on a governance role and fails, will consequently bear some liability if its governance is lacking, for whatever reason. Setting up an agency that is not able to fulfil its role would merely transfer some, if not all, of the liability for problems caused by AI to the agency, away from the technology companies. We must be careful not to shift the burden from the manufacturer/supplier to authority