Artificial intelligence: legal regulation in Ukraine and the EU

What is AI and its legal status in Ukraine and the EU?

From a scientific and technical point of view, artificial intelligence (AI) is a field of computer science aimed at creating and developing systems capable of analyzing information, recognizing patterns, understanding language, and making decisions according to specific criteria.
From a legal perspective, defining artificial intelligence becomes a more difficult task. Given the rapid development of artificial intelligence, legal regulation must constantly evolve to consider new challenges and opportunities.

In Ukraine, the first steps have already been taken to create legal regulations for artificial intelligence. Thus, in 2020, the Concept of the Development of Artificial Intelligence in Ukraine was created, in which the definition, purpose, principles, and tasks of the development of artificial intelligence technologies in Ukraine are provided for the first time at the legislative level.

According to the definition of the concept of AI, it is an organized set of information technologies, with the use of which it is possible to perform complex tasks by using a system of scientific methods of research and algorithms for processing information obtained or independently created during work, as well as to create and use own knowledge bases, acceptance models solutions, algorithms for working with data and determine ways to achieve the set tasks.

In addition, a Working Group on Legal Regulation of Artificial Intelligence was created in the National Association of Lawyers of Ukraine. The working group is engaged in the analysis of the most important legal issues of the development and use of artificial intelligence, the determination of the limits of its use in various fields, as well as the protection of personal data collected by artificial intelligence systems, the resolution of rules for their preservation and use. The working group promotes this field’s development and helps ensure that human rights are properly protected when artificial intelligence systems are used.

EU legislation on AI also considers new trends and challenges related to the rapid development of technologies, particularly artificial intelligence.
The goal of the EU is to promote the development of reliable, ethical AI that complies with legislation. To this end, the EU is working on adapting legislation, developing ethical principles and legal norms related to the use of AI. In particular, starting in 2021, the world’s first law on AI – the Artificial Intelligence Act (after this – the Act) is being developed within the framework of the EU. In the draft of this Act, a detailed legal definition of AI in the EU is provided for the first time, which can serve as an example for other countries, including Ukraine.

The document defines an AI system as a machine system designed to operate with varying degrees of autonomy and that can generate results such as predictions, recommendations, or decisions that affect the physical or virtual environment for overt or covert purposes.
However, we suggest moving on to more practical issues that regulatory bodies, developers, and users face.

Artificial intelligence can be a threat to the protection of personal data

Protection of the right to privacy and legal use of personal data in the process of training and work of AI has become an urgent problem that has to be solved by regulatory bodies in various countries.

In this context, the General Data Protection Regulation (GDPR), which entered into force in May 2018, plays a crucial role in ensuring the rights and privacy of users in the virtual environment. The GDPR establishes rules for collecting, processing, and storing personal data in the European Union and provides for high privacy protection standards.

There are already several examples of the application of GDPR norms by European regulators to developers of AI systems.
For example, Clearview AI, a software developer for facial recognition using artificial intelligence, received several fines due to the illegal use of the personal data of individuals in five countries. The French Data Protection Authority (CNIL), in particular, noted that Clearview AI uses personal information without users’ lawful consent, and at the same time, there is no legitimate interest in such collection, which is a severe violation of the GDPR.

Italy has restricted access to the well-known Chat GPT due to concerns about citizens’ personal data processing. Thus, the Italian regulator notes that no legal basis would justify the mass collection and storage of personal data to ” learn” the algorithms underlying the platform’s operation.
As you can see, the GDPR became the foundation for ensuring a high level of protection of personal data used in the work and training of AI. For a successful combination of artificial intelligence and GDPR, the principles of legality, transparency, consent, data processing restrictions, and other GDPR requirements must be considered. This means the development and implementation of algorithms and technologies, respecting these principles, as well as education and the conscious use of AI, taking into account the rules of the GDPR.

Copyright and artificial intelligence

Works created by artificial intelligence attract the attention of society. So, the painting “Portrait of Edmond de Bellamy,” produced by artificial intelligence, was sold at auction for $432,500. “Portrait of Edmond Bellamy” is one of a series of portraits of the imaginary Bellamy family created by artificial intelligence. In the lower right corner, the algorithm, like a real artist, put its signature – a complex formula.
Music created by artificial intelligence will be nominated for a Grammy next year. This was announced by the CEO and President of the Recording Academy, Harvey Mason.

However, lawyers face the question: does copyright protect these works, and who will be the owner of such rights?
In Ukraine, steps have already been taken to resolve this issue. Thus, the new law of Ukraine, “On copyright and related rights,” of 2023, for the first time regulates the subject of copyright for works generated by computer programs, including AI.

Since the criterion of “originality” depends on the creative contribution of a person, works created entirely by AI are considered unoriginal and, according to the law, are protected by a special kind of sui generis right.
Subjects of a particular type of law can be persons who own property rights or have licensing authority (authors who created the AI program, their heirs, or legitimate users). The conditions for the right of a special kind to works generated by AI can also be defined in the contract.
Moreover, since such works do not contain a creative contribution and are generated without human participation, sui generis subjects acquire only personal property rights to the job.

In contrast to Ukraine, the EU has not yet adopted legislation regarding the copyright of works created by AI. According to the general principle, it is considered that copyright applies only to works created by man.
In its decisions, the ECJ has repeatedly stated that copyright applies only to original works because they are the author’s intellectual work. (decision C-5/08 Infopaq International A/S v Danske Dagbaldes Forening). From this, it follows that objects created with the help of AI can be protected by copyright only in case of significant human participation during the creation of the thing. At the same time, it is quite challenging to determine exactly what contribution to the creation of AI-generated content will mean by the author’s significant participation and creative decisions (human). The assessment of such a contribution will depend on many subjective factors. Therefore, in most cases, AI-generated content is not protected by copyright. One of the first countries to recognize copyright for works generated by computer programs, including AI, is Great Britain, a former member of the EU.

The UK offers copyright protection for computer-generated literary, dramatic, musical, or artistic works. The “author” of a “computer work” is recognized as “the person who took the steps necessary to create the work.” Protection is valid for 50 years from the creation of the work.

Artificial Intelligence Act – the perspective of legal regulation

As already mentioned, essential documents are being prepared within the EU, designed to improve the situation with the legal regulation of AI. They can serve as an example for other states. In June of this year, the European Parliament took a significant step towards creating a legal framework for the effective and ethical use of artificial intelligence by approving the Artificial Intelligence Act.

One of the main goals of the Act is to protect the rights and freedoms of persons affected by artificial intelligence. The law defines the principles and rules for processing personal data, using automated decision-making systems and other aspects of artificial intelligence, ensuring data processing transparency, fairness, and legality.

If the EU achieves its goal of adopting the final version of the Act by the end of the year, it will become the world’s first AI Law. However, it is expected to enter into force by 2026, and there will be a grace period during which interested parties can adapt their activities to comply with the Act.
Adopting the Act will also directly affect the regulation of AI in Ukraine. “As soon as the Law on Artificial Intelligence is adopted, it will also have to be adopted by EU candidate countries, which is Ukraine,” said Karolina Ivasivska, digital rights adviser at ECNL.

Ukraine is already participating in the implementation of the Act. Thus, the Ukrainian government launched a regulatory sandbox for artificial intelligence developers. The state expert of the Directorate of European and Euro-Atlantic Integration in the Ministry of Digital Transformation of Ukraine, Gordiy Rumyantsev, said that this is a controlled environment in which development companies will be able to develop their product from the very initial stage, from design, so that it takes into account the requirements of the future Act of the European Union.

Conclusions

Legal regulation of artificial intelligence in Ukraine and the EU is increasingly important in connection with the development of technologies. All countries are now actively working on creating adapted and effective legal norms that consider the peculiarities of artificial intelligence. This allows us to ensure the safety and protection of the rights of users of AI technologies and create favorable conditions for the development of innovation and the digital economy.

Because Ukraine has become a candidate country for the EU, it is assumed that in the future, our legislation in the field of regulation of artificial intelligence will be harmonized with European legislation. There are many challenges and tasks on the way to developing AI regulation in Ukraine, but understanding the importance and necessity of creating a legal code is a step in the right direction.

Effective legal regulation of AI in Ukraine will ensure a balanced approach to the use of AI systems, the protection of citizens’ rights, and support for the country’s innovative development.

Published by PRAVO

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