European Commission outlined next steps towards new EU rules in robotics



Robots will one day live among us. That’s not a secret anymore. Just like couples, when people live or work together, a legal framework is required or at least, highly recommended. Even better if it can be adopted at the EU level. Indeed, robots, drones, smart cars, etc. raise numerous liability issues, but not only. In February, the European Commission voted in favour of a new proposed legislation. But is the law ready for it?

You are certainly a big fan of the HBO's sci-fi/western drama TV show : "Westworld”; the amusement park where robots and humans live together, until the day a “bug” disrupts the robots and detracts the functioning of the park.

This park is perhaps the European Union of tomorrow... (and I’m not talking about Brexit) ; an anticipative legislative instrument in robotics would therefore be welcome.

Recently, the European Parliament's Committee on Legal Affairs ("JURI") asked the European Commission in a Report to look at new EU-wide rules in robotics. On February 16, 2017, the European Commission voted in favour of this future legislative instrument. Exciting, right!?

What’s in this future legislative instrument? 
  • A proposal for a directive on civil law rules
The Report notes that several foreign countries (including the United States, Japan, China and South Korea) are considering regulatory measures in the field of robotics and artificial intelligence. But the EU wants to lead the race on setting these standards, so as not to be forced to follow those set by third countries.
In that regard, it asks the Commission to submit a proposal for a directive on civil law rules on robotics. The purpose of this future instrument would be to establish "general and ethical principles concerning the evolution of robotics and artificial intelligence for civilian use". 
  • A legal status?
When self-learning robots arise, different solutions will become necessary. One could be to give robots a limited “e-personality” (comparable to "corporate personality", a legal status which enables firms to sue or be sued) at least where compensation is concerned mentioned the Report.  
  • The establishment of a new Agency and a Charter on Robotics
More specifically, a European Agency for Robotics and Artificial Intelligence, to provide public authorities with technical, ethical and regulatory expertise.
The Agency will also have to manage the registration of robots. It will also be necessary to create a system for recording advanced robots on the basis of robot classification criteria for traceability purposes and to facilitate the implementation of subsequent recommendations.
 
And also a Charter that will include (1) an ethical code of conduct for robotics engineers, (2) a code of ethics for research ethics boards, and (3) a set of licenses for designers and users.
 
It should be noted, for example, that the Code of Ethical Conduct will lay the foundations for the identification, monitoring and observance of fundamental ethical principles (e.g. robots should not harm humans). Users will also not be allowed to modify robots to use them as weapons. 
  • Rules on liability
The report stresses that the behaviour of a robot could have civil law implications, both in terms of contractual and non-contractual liabilities.
 
In contractual matters, the rules must be updated. Indeed, they are not made for a robot to choose, for example, a co-contractor, negotiate provisions, conclude an agreement, etc.
 
In non-contractual matters, the rules are simply incomplete. Directive 85/374/EEC only covers damage caused by manufacturing defects of a robot, provided that the victim can also demonstrate the fault, the damage, and the causal link between the fault and the damage. The fault will consist in a breach of an obligation of safety.
 
Consequently, the damage caused by a robot as a stand-alone system with adaptive and learning abilities is not targeted. Indeed, these robots will draw experiments, varying from one to the other, and will interact with their environment in a unique and sometimes unpredictable way.
 
In other words, the rules in force only cover cases where the cause of action or inaction of the robot can be identified as attributable to a specific human actor (manufacturer, owner, designer, or user) and where that actor could have anticipated and therefore avoided the damaging behaviour of the robot. It's not sufficient.
  • Rules on protection of data and privacy
Robots will collect and process personal data (without necessarily informing a user). This could be problematic. The owner of the robot will have to ensure the security and the confidentiality of the personal data stored by the robot.
In Belgium, the law governing the processing of personal data and the respect for privacy is the Law of 8 December 1992 on the protection of privacy in relation to the processing of personal data. This Law aims to protect individuals against abuse of their personal data. For instance, if the robot owner does not notify all personal processing operations involving the data recording and storing of the robot to the Belgian Privacy Commission, prior to carrying out the processing operations, he will be subject to a criminal penalty.
The report considers that "an informed consent of the person should be sought and obtained prior to any human-machine interaction". In practice, it remains to be seen how this will be put in place.
 
The Code of Ethical Conduct also seeks to ensure respect for privacy and data protection in accordance with Articles 7 and 8 of the Charter and Article 16 TFEU.
 
The Commission will need to examine the rules and criteria for the use of cameras and sensors in robots and to ensure that data protection principles such as “privacy by design” (an approach to systems engineering which takes privacy into account throughout the whole engineering process) are respected.
  • Rules on intellectual property
Similarly, who will own the flow of data and know-how resulting from the use of robots? Should a new criteria be "own intellectual creation" be applied to works created by robots?
 
Also, how can robots be protected under intellectual property law? Will the software used to operate a robot be patentable?
 
What about the job market?
 
The Report emphasizes the need for increased surveillance of robots evolution in the field of employment in order to avoid negative repercussions on this market. For example in the health sector, “care robots”, to which the most vulnerable people can become emotionally attached, would be a source of concern for human dignity and other moral values.
 
Robots will not replace humans; there will be a cooperation between both. For this reason, the Report emphasized on the need of a so-called robot tax. But the proposal to impose such a tax was rejected by the Parliament. One of the arguments was that such a robot tax would have had a very negative impact on competitiveness and employment with other countries.
 
Conclusion
Since robotics and artificial intelligence represent technological innovations, which will profoundly modify our societal structure, the need for changes in law is required. 
 
For once, the EU Parliament would like to set common European principles and a common legal framework before every member state has implemented its own and different laws. Indeed, in order for the European Union to remain a leader in research in robotics and artificial intelligence, and to compete with other countries in this emerging market, a legal framework was required.
 
Now, we have to wait for the European Commission to act accordingly and to propose a directive. However, the Commission will not be obliged to follow the Parliament’s recommendations, but must state its reasons if it refuses. Stay tuned!

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