Can State and Federal Regulations Keep Pace with AI Technology Developments?
Artificial intelligence (AI) systems are developing rapidly, leaving federal and state legislation governing this technology lacking. While legislators and government agencies scramble to keep up with the changing landscape, there are a few existing regulations and guidelines that attempt to keep this powerful force as safe and secure as possible. With all the changes, it leaves the question, can state and federal regulations keep pace with AI technology developments?
This is relevant for business owners and intellectual property (IP) owners because AI and IP overlap in a number of ways. AI tools can be used to assist IP rights and protection, but generative AI can create issues for intellectual property, too.
California Privacy Rights Act
The California Privacy Rights Act (CPRA) went into effect at the start of 2023 and is an expansion of the California Consumer Privacy Act (CCPA). The updated and added provisions involve imposing stricter limits on how sensitive personal data is handled, stored, and shared, including limits on cross-behavioral advertising, which may implement AI.
Colorado Privacy Act
Colorado’s Act allows consumers to opt out of automated decision profiling and mandates that activities with higher risks of harm have assessments for data protection. Activities that would be considered to have a heightened risk of harm include targeted advertising and specific profiling methods.
Texas Data Privacy and Security Act
Much like the Colorado Privacy Act, the Texas Data Privacy and Security Act (TDPSA) includes provisions on opting out of targeted advertising and profiling and requires data protection assessments. There are also re-identification requirements for select data categories.
Federal AI Laws and Guidelines
Comprehensive federal regulations have fallen behind. However, the American Data Privacy and Protection Act (ADPPA) is set to go through the approval process in Congress this year. If enacted, the ADPPA would impose limits on the collection, use, and sharing of users’ personal information. It also includes terms regarding discriminatory use and accountability.
Because AI poses particularly challenging risk management and privacy concerns. Developing encompassing and appropriate legislation can be difficult. On October 30, 2023, President Biden signed an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.
The Executive Order includes numerous provisions for developers of artificial intelligence, as well as the data and tools these developers use. It provides guidance on many risks and current issues with AI use. Still, it does little to address the numerous problems associated specifically with how AI relates to and impacts intellectual property.
Meanwhile, the Copyright Office has its own guidelines on how to determine if AI created works are copyrightable. The Copyright Office allows copyright for AI works a human edited, modified, or otherwise revised to be a new work. Meaning the work contains a sufficient amount of original authorship by a human. A human merely providing prompts to AI to create a work is not enough. The Copyright Office launched an initiative on AI in 2023 and is currently reviewing the written comments of the public. You can find out more at https://www.copyright.gov/ai/.
Other IP AI-related questions are still being answered. Such as how much a human needs to contribute to a work for it to be eligible for copyright or patent protection. In what ways must generative AI systems comply with open-source licenses? These questions and many more IP concerns remain open to interpretation in the absence of definitive legislative guidance.
Lawmakers work to keep up with the changing dynamics of AI, data privacy, and intellectual property protection. As they do, it is especially important to consult with an IP attorney who stays informed on the constantly updating regulations. Contact EmergeCounsel to schedule a free consultation.