Draft aims to promote healthy development of AI

The Cyberspace Administration of China is seeking the public's views, from April 11 to May 10, on draft measures aimed at managing emerging foreign and domestic artificial intelligence (AI) services. The 21-article draft on managing generative AI services aims to make clear the definitions, regulations, supervision, legal basis and scope of AI application. The highlight of the draft is that it focuses on the subjects and their responsibilities.

The draft lists several responsibilities and obligations for research and development, training, output platforms and content control of AI products, allowing government departments to supervise and regulate the AI industry, which is likely to bear heavy transaction and social costs.

As part of China's potential public law, the draft represents the views of the regulatory authorities. The goal of the draft is to allow AI service providers to collect data and generate content strictly in line with related laws, especially the Copyright Law, and to shoulder administrative responsibilities and bear civil or criminal liability in case they fail to do so.

First, AI product developers and service providers cannot be identified as data creators during the "input" process because they only engage in data collection, reading and training. So they should not bear the obligation to review the legality of the AI-generated content. As the review of data input involves precautionary and intervention principles, the uncertainties of the outcome of AI will negatively affect innovations of new texts, images, voices, videos and codes powered by AI algorithms, models and rules.

Second, a provider of generative AI services plays the role of a platform and content co-creator, and it is not easy to define the legal nature of its data output. If the provider only copies, pastes and spreads the original content, then it can be described as an internet service platform that does not bear the obligation to review the legality of the content thanks to safe harbor provisions.

Third, data output means AI service providers creating contents independently or co-creating contents with users. For example, an AI-generated article was ruled to have violated copyright laws in 2020, as a court in Shenzhen, Guangdong province, said the defendant had infringed on copyright by disseminating the AI-written piece without the authorization from the plaintiff and, therefore, should bear civil liability for the action.

However, users of generative AI products have failed to get the attention they deserve. According to the Copyright Law, any two entities engaged in intentional collaboration aimed at combining their contributions into a unified work are considered joint copyright owners of the work.

Although a generative AI product builds a typical collaborative creative model that involves interaction between the user and AI, the user's behavior is not taken into consideration probably because his or her data output can be considered reasonable in line with the Copyright Law, which does not need to be supervised by the authorities.

In order to promote the AI industry and create a healthy business environment, the government may request such entities to bear civil liability only when they use the copyright works for commercial purposes.

The draft emphasizes the obligations and responsibilities of AI service providers, such as how to handle complaints, provide data and deal with misdeeds. As for the regulatory authorities, they will be allowed to deliver administrative punishment including giving a warning, criticizing and imposing administrative penalties.

Although AI service providers should shoulder more obligations and social costs because cyber and data security and personal information need to be safeguarded, the draft should also discuss how much responsibility these market entities need to bear and the scope of the administrative supervisors' powers. These adjustments will be conducive to the development of the market of generative AI products, but perhaps the government wants to ensure AI market openness since it mentions "boosting the healthy development of generative AI" at the beginning of the draft.

We hope the final version of the draft will lower the legal and operative costs for the industry, and help create a healthy business environment and open market through supervision.

The views don't necessarily represent those of China Daily.

The author is an associate professor at the Civil and Commercial Law School, Intellectual Property School at Southwest University of Political Science and Law.

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