Lawyers lead charge on AI oversight as government drags on regulations
As AI systems are deployed worldwide, the question of who is responsible when they cause harm, failure, or unexpected consequences is quickly becoming a major headache for businesses. With a lack of regulation, the problem is passed to the courts, keeping litigation partners busy.
There are multi-billions on the line for technology investment, especially in AI, along with a drive from the Labour government, which has committed £2bn to an AI initiative by 2029/2030.
However, with the rapid pace at which businesses are adopting AI models, along with the growing number of AI startups offering services, the laws have not kept pace.
In the UK, unlike with the EU AI Act, there is no single overarching AI law; instead, existing laws on data protection, intellectual property, and anti-discrimination are being applied to AI systems.
It appears that the UK government is dragging its feet on creating regulations for AI in the UK. Back in September, the then tech secretary, Peter Kyle, stated that for Britain to try and keep pace in the global race for tech leadership, red tape needs to be reduced.
So, what do businesses do when an AI model goes wrong? They turn to the courts and lawyers, who in turn charge high fees to tackle these complex issues.
According to DLA Piper, the number of AI-related securities class actions is on the rise in the US, while in the City, the High Court recently handled a landmark case involving copyrighted images.
Landmark judgment
Intellectual property (IP) cases are not the easiest to get your head wrapped around. The laws are complex, and the language is frequently hard to comprehend. Despite that, it is an important law for businesses to protect their products and brands; it is not surprising that many law firms have an IP department.
Back in June, a historic case was put to the English High Court by US online stock pictures library giant, Getty Images. The lawsuit focused on the protection of intellectual property rights in the wake of AI, as the US giant sued UK-based AI image generator Stability AI.
The allegations focused on Stable Diffusion, a tool owned by Stability AI, which automatically generates images based on text or image prompts. Getty Images claims that its intellectual property rights have been infringed by this tool, and it asserts that its copyrighted images were used in the training of Stable Diffusion.
However, on Tuesday, Mrs Justice Joanna Smith handed down her ruling, which saw her dismiss Getty’s core intellectual property claims, despite her also granting it limited historic success.
The court dismissed Getty Images’ central claim of secondary copyright infringement under the Copyright, Designs and Patents Act 1988. It found that although an “article” may be an intangible object for the purposes of the Act, an AI model, such as Stable Diffusion, is not an “infringing copy”, such that there is no infringement under the Act.
The judge also dismissed its other copyright claims, which were based on primary copyright infringement; however, this claim had already been abandoned by Getty during the first two weeks of the trial.
The judgment was met with a mixed reaction from lawyers and deemed a blow to UK creators.
However, as Ellen Keenan-O’Malley, senior associate at EIP, pointed out, “the dismissal of Getty Images’ claim of secondary infringement wasn’t surprising”, given that Getty dropped one of its arguments during the trial.
Calls for clarity
As Nick Buckland, partner at Lewis Silkin, pointed out, “this case leaves many questions unanswered.”
“Given these uncertainties and the specific facts of this case, I can see more litigation over the use of AI and whether it infringes the IP rights of creators,” Buckland said.
In a press statement, Getty urged “governments, including the UK, to establish stronger transparency rules which are essential to prevent costly legal battles and to allow creators to protect their rights.”
“The UK government has made no secret of its desire to try and ‘unleash the power’ of AI in order to stimulate economic growth; the ball is now back in its court to find a regulatory solution that achieves that whilst adequately protecting creators, which it has pledged to do,” Buckland added. “This may be a tough balancing act.”
Going forward, Claire Robinson, of counsel at Powell Gilbert, noted it would be interesting if Getty decides to appeal this ruling. “The evidential difficulties which Getty experienced during this litigation, such as those which resulted in them dropping their primary copyright infringement claims, could impact Getty’s strategy.”
While some express frustrations on behalf of the creative industry, other lawyers are calling for regulation to be put into place.
However, as the government embarks on its red-cutting initiative and the AI field becomes even more competitive, lawyers may be left to pick up the pieces.
Eyes on the Law is a weekly column by Maria Ward-Brennan focused on the legal sector.