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IP Rights and AI: INTA Provisions Included in EU Parliamentary Report

25-Oct-2020 | Source : AG-IP News | Visits : 1384

NEW YORK - The European Parliament on October 21 approved a report on artificial intelligence (AI) including provisions sought by INTA on registration and enforcement of intellectual property (IP) rights. At the same time, the Parliament also adopted a preliminary position on the potential review of e-commerce legislation and a liability regime for online actors, according to the International Trademark Association (INTA).

The non-binding parliamentary report on “Intellectual property rights for the development of artificial intelligence technologies,” lays out the Parliament’s political recommendations on IP rights for the upcoming legislative proposal on AI. The proposal is expected by the end of the year—with a risk of delay to early 2021 due to the COVID-19 crisis.

The report stresses that the European Commission has not yet addressed IP rights in the context of AI and calls for an impact assessment (the preliminary assessment procedure of the Commission prior to any decision on whether to pursue legislation) on the matter. Indeed, IP is not part of the scope of a white paper on AI published last February by the Commission.

The INTA Europe Office has been very active in the shaping the report. Included in the final version are INTA’s recommendations on two core provisions regarding the conditions—human review when legal consequences are involved—for (1) the use of AI systems for registrations of IP rights; and (2) the enforcement of IP rights. Selections from the report follow:

§6 “… acknowledges the potential of AI technologies for improving the enforcement of IPRs, notwithstanding the need for human verification and review especially where legal consequences are concerned.”
§12 “… notes, at the same time, that AI or related technologies used for the registration procedure cannot be a substitute for human review, on a case-by-case basis, in relation to the granting of IPRs and the determination of liability for infringements of IPRs, in order to ensure the quality and fairness of decisions; … therefore, stresses the need to establish adequate safeguards, including design systems with human-in-the-loop control and review processes, transparency, accountability and verification of AI decision-making”;
§13 “… stresses that AI technologies could be useful in the context of IPR enforcement, however necessarily requiring human review and ensuring full transparency of any AI-driven decision-making systems.”

The report has been forwarded to the Commission, which is currently in charge of drafting the upcoming AI legislative proposal. While the report is not binding, it carries the full political weight (612 votes in favor of the report, 66 against, and 12 abstentions) of the EU Parliament, which will ultimately, together with the Council (27 member states) discuss, amend, and adopt the Commission’s proposal.

The successful inclusion of INTA’s amendments in the report therefore implies that there is a strong chance that the Commission will consider them when it drafts its legislative proposal.

E-Commerce and Illegal Goods Online

The European Parliament also approved on October 20 three non-binding parliamentary reports on the upcoming Digital Services Act (DSA). This is the legislative proposal to review the EU E-Commerce Directive 2000/31/EC, which includes notably the limited liability regime for online platforms regarding the content they “host” on their websites.

The three reports cover separate aspects of the upcoming DSA, namely:

1. Digital Services Act: Improving the functioning of the Single Market;
2. Digital Services Act and fundamental rights issues posed; and
3. Digital Services Act: adapting commercial and civil law rules for commercial entities operating online.

INTA has been actively monitoring the DSA proposal, the parliamentary reports, and contributed to the Commission’s public consultation in that regard.

Of particular importance for INTA, the first report focused on the liability regime and the role of online actors (§§60–71) regarding illicit goods online (§§46-59), and notably the provisions on the following:

The definition and scope of “illegal content” is not a “one-size-fits-all” as it is not harmonized at the EU level; therefore, the European Parliament “calls for a strict distinction to be made between illegal content, punishable acts and illegally shared content on the one hand, and harmful content, hate speech and disinformation on the other, which are not always illegal and cover many different aspects, approaches and rules applicable in each case; takes the position that the legal liability regime should concern illegal content only as defined in Union or national law.” (§47)
Status quo on the liability regime as the Parliament is of the opinion that while “a clear legal framework for the removal of illegal content and activities is needed in order to ensure the swift notification and removal of such content online,” it nonetheless “underlines the need to prevent imposing a general monitoring obligation on digital service providers to monitor the information which they transmit or store and to prevent actively seeking, moderating or filtering all content and activities, neither de jure nor de facto; underlines that illegal content should be removed where it is hosted, and that access providers shall not be required to block access to content.” (§49) In Section 57, the call for a status quo on the liability regime is made even clearer as the reports notes “that maintaining safeguards from the legal liability regime for online intermediaries set out in Articles 12, 13, 14 of the E-Commerce Directive and the general monitoring prohibition set out in Article 15 of the E-Commerce Directive are pivotal …; in this context, underlines that the legal liability regime and ban on general monitoring should not be weakened via a possible new piece of legislation or the amendment of other sections of the E-commerce Directive.”
The Parliament is also pushing for a “notice-and-action” mechanism which “must be human-centric; underlines that safeguards against the abuse of the system should be introduced, including against repeated false flagging, unfair commercial practices and other schemes; urges the Commission to ensure access to a transparent, effective, fair, and expeditious counter-notice and complaint mechanisms and out of court dispute settlement mechanisms and to guarantee the possibility to seek judicial redress against content removal to satisfy the right to effective remedy.” (§53)

The reports have been forwarded to the Commission, which is currently in charge of drafting the upcoming DSA legislative proposal. It was initially expected by the end of the year but most probably will be postponed until early 2021 due to the COVID-19 crisis. While this report is not binding, it carries the full political weight of the European Parliament, which will ultimately, together with the Council (27 member states) discuss, amend, and adopt the Commission’s DSA proposal.

Given the majority of votes on the first report (571 votes in favor of the report, 26 against, and 94 abstentions), it shows that the Parliament is united on keeping the status quo on the liability regime. Therefore, its position will carry considerable weight with the Commission when drafting the DSA legislative proposal.

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