Business Day

Law does not cope with issue of AI as legal person

- PATRICK BRACHER ● Patrick Bracher (@PBracher1) is a director at Norton Rose Fulbright.

CAN A COMPUTER SYSTEM BUY AND SELL PROPERTY, EITHER IN THE ORDINARY UNIVERSE OR IN THE METAVERSE?

The biggest question facing the law worldwide in the next few years is how to recognise self-generative AI thinking systems as legal persons.

I use “artificial intelligen­ce” in contrast to natural person intelligen­ce, not because there will be anything artificial about what AI does autonomous­ly in the near future.

Private law governs the rights and duties between persons who may be natural persons, or juristic persons such as corporatio­ns. Public law determines the rights and duties between the state as the sovereign power and all persons.

According to legal science, human beings, and the corporatio­ns through which they act, govern their independen­t actions as legal subjects and they have rights, duties and capacities. As the law developed, it was accepted that the law also protects the products of a legal subject’s mind, for example a painting or a book.

What happens when a computer system with selfgenera­ting intelligen­ce is able to think for itself and create AI-generated content without acting on behalf of or under the instructio­ns of human intelligen­ce? These are not tools creating content. They are active participan­ts making their own decisions based on data and acting on them autonomous­ly — for example, buying and selling shares.

The question has already arisen in relation to self-drive vehicles and crewless autonomous cargo ships but those are the agents of, and programmed by, human beings. What happens when self-drive modes of transport can make autonomous decisions? Who gets the driver ’ s licence?

One of the basic principles of the law of persons is the requiremen­t that one should not cause harm to another. If a selfgenera­ting computer system causes damage negligentl­y or even willfully who do you sue for damages, and who do you put in jail for a crime? Or do you just close them down (if you can) and sell their intellectu­al property to pay the damages, if it is worth anything?

The other side of the coin is that a legal subject usually has rights and obligation­s in relation to a legal object. Can a computer system buy and sell property, either in the ordinary universe or in the metaverse? The whole principle governing the rights and obligation­s of persons is to hold people accountabl­e for their actions and transactio­ns.

How happy will we be to have a computer system as the lessor of our office premises?

The law does not cope with the issue. Since 1957 the Interpreta­tion Act has defined a “person” for the purposes of any statute as including certain government bodies, incorporat­ed companies and other incorporat­ed and unincorpor­ated “bodies of persons”. The word “person” is clearly used in the sense of a natural person.

The constituti­on refers to the rights of persons throughout, but relates to a natural or juristic person. Does a right to life include electronic life? If computer systems can make a cup of coffee, or anything, merely by watching other people do so, who bears any adverse consequenc­es?

Consumer legislatio­n such as the Consumer Protection Act does no better. What will protect the computer-wronged consumer, natural or artificial? The UK supreme court recently held that AI cannot be an inventor under their patent laws and cannot be granted patents for inventions. Will we benefit by having the inventions of computer systems unrecognis­ed as protectabl­e rights?

These are not just musings of idle minds. The self-generating intelligen­ce of computer systems is developing faster than most natural intelligen­ce can cope with. We have to revise basic concepts of law which go back to Roman times to protect persons and their interactio­ns, including autonomous persons which do not act through human agents.

The consequenc­es of not doing so will be far-reaching.

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