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THE POTENTIALITY OF SEPARATE LEGAL ENTITY FOR AI IN INDIA

Introduction

The development of science and technology has resulted in the emanation of the most dynamic, robust and vigorous technological revolution of all times that will metamorphose our lives i.e. Artificial Intelligence (AI). With a flash, AI has become all-pervasive in our lives and the application of Artificial Intelligence is only bound to amplify shortly. The society’s dependence and credence on AI is so colossal that AI has the wherewithal to contribute approximately 15.7 trillion dollars to the world’s economy by 2030. From NITI Aayog’s national strategies #AIFORALL and AIRAWAT to harness AI technology in India to tap into consumer behaviour and make smart suggestions by Google, Amazon, Netflix, MakeMyTrip etc, India and the world are at the tip of the iceberg in tapping the kaleidoscopic uses of AI.

With the ubiquity of AI, it is palpable that scientists are hustling to develop Artificial Intelligence to become irreplaceable, enrich its autonomy and its capacity to think. With the enhancement of human interaction with AI, legal issues are bound to spur. Thus, our legal framework must adapt to cater to challenges such as the ascertainment of accountability for criminal or tortious liabilities for the actions of AI and any other issue that can potentially arise due to the prevalence of this technology . One such challenge is regarding the attribution of legal personality to AI. This legal move could prove to be a potent step to regulate and minimize the potential issues that AI could impose on society.

In this article, the author seeks to discuss the potential notion of granting Artificial Intelligence with legal personality. The author also analyses the benefits and the challenges that are laden with attributing AI with legal personhood. Lastly, the author presents a cohesive and practical opinion regarding the actualization of enabling AI as a legal person.

Artificial Intelligence

Artificial Intelligence refers to the capability of a computer or a computer-controlled robot to execute and accomplish tasks that are usually associated with human beings. AI are thinking machines and AI is a subfield of computer science that is enabled with the ability to imitate human intelligence. This technology is marked with the proficiency of a machine to replicate and reproduce functions that embody the prudence of human behaviour. The development and advancement of this technology were fuelled by the imperative need to automate tasks that are ordinarily performed by human labour. AI has aided in enhancing the conduction of difficult and complicated tasks sans error with the effectiveness and efficiency of a human, or even better. For instance, the AI powered Google maps has eased everyone’s life with its accurate analysis of the speed of movement of traffic. Similarly, AI powered softwares such as Grammarly and Turnitin have made plagiarism detection simpler. AI has also taken over the banking sector with AI softwares determining credit scores and detecting fraud transactions as done by FICO. AI softwares are also heavily relied on for their cognitive abilities to offer predictions and personalized recommendations to customers using online platforms like Netflix, Amazon, etc.

Legal Personality

Legal personality is an artificially concocted concept which enables an entity to be the recipient of rights and duties. Conferring legal personality enables the subject with the capacity to enter into legal relations. Legal personhood is rooted in the decision of the legal machinery to endow an entity with legal personhood whilst ensuring that such endowment does not hamper the objectives of the legal framework, rather advances them. It entitles the entity certain rights and obligations such as the capacity to sue and be sued, the right to own property, right to enter into contracts, obligation to be subject to State sanctions etc.

Each entity that is endowed with legal personhood enjoys varying rights and obligations and the legal machinery conferring legal personhood to an entity must state the specific legal rights and duties and shall accompany the conferral.

Granting Legal Personhood to AI – A Possibility?

The world is at the advent of a unique technological upheaval with AI technology and robots becoming an unprecedented reality such that questions regarding their legal status are being raised. From the robot Vital being a board member of a Hong Kong firm to Alicia T, an AI system being appointed as a part of a leadership team in a Finnish company to Sophia, an AI application being granted citizenship in Saudi Arabia AI is quickly building an unheard of reign. Moreover, with self-driving cars like Tesla, chatbots like A.L.I.C.E. and Lyft, voice assistants such as Alexa and Siri and numerous other fully automated machines transforming from fragments of imagination to tangibility, the notion of culpability from the wrongdoings of AI ought to be ascertained.

Attributing legal personhood to AI is legally feasible in theory as legal personality can be granted to an entity that possesses the capability to be autonomous and rational. However, technology has not yet developed to bring strong AI to fruition. Irrespective of the same, granting AI with legal personality will ease the capacity of the legal framework to find solutions to issues that spur due to the technological advancements such as issues of privacy, unlawful surveillance, potential frauds, misuse of legal loopholes sans sacrificing development in this sector. This would also enable our society to be in consortium with technological developments. Moreover, strong AI has the potential to develop into a sentient being in which case it will become our moral duty to give them rights and would also safeguard AI from being misused for illegal and selfish reasons. Attributing legal personhood to AI will make them accountable and liable for their misdoings rather than shifting the burden to an innocent being such as the owners and developers of the software.

However, arguments against granting AI with legal personality essentially state that legal personhood has not and should not be premised on the prevalence of creativity, autonomy, intelligence, rationality or consciousness. No matter the ground-breaking scientific developments, the elemental fact remains that AI is a software that is the product of human endeavours and cannot survive without human effort. AI can only perform the functions that have been coded into its system by its developer. No doubt, AI is competent to discharge its duties, but for being a subject of legal rights, AI needs to be adept to the extent of ascertaining its liabilities which is not possible.

Author’s Analysis

. Considering Artificial Intelligence as a tool rather than a legal person is an appropriate solution for the issue of legal personality for AI. The autonomous AI systems have been developed for the convenience of human beings. The characteristics of AI such as the ability to train itself, achieve predetermined and identified objectives, the capacity to communicate, the awareness of the external world, the knowledge of itself, ability to display creativity or emergent behaviour are the outcomes of a code which programs the actions of the machine. No feature of AI can alter the fact that it was initiated, programmed and controlled by a homo sapien. However, being entangled with the fascinating notions of AI being autonomous and sophisticated, we overlook the fact that the code defining the acts of the AI has been written by a human. Considering AI as a tool safeguards the legal status quo as well as the technological neutrality prevalent in India. The same is adequately corroborated in the legal provisions of numerous countries. For instance, the UK Patent Act is devoid of any provision contemplating the likelihood of non-human inventions and is callous to the manner of the creation of the invention. In the US, cases involving AI softwares such as Bernstein v Northwestern National Bank in Philadelphia, Marsh v American Locker Co follow the same ratio i.e. technology such as computers, softwares etc are mere tools that are deployed to conduct transactions of various intricacies. In the case of B2C2 Ltd v Quoine Pte Ltd, the question before the Singapore court was regarding AI algorithms that did not require human supervision for operating. The court, following the precedents, held the operators liable rather than accrediting the faulty operations to the software.

It is undeniable that AI applies cognitive skills to achieve its objectives, however, the same does not seem to be a convincing argument to attribute AI with legal personality if due consideration is paid to the criteria of rights and obligations. Garnering AI with legal personhood insinuates garnering a code legal personhood and the same is unjustified due to the lack of human substratum behind it. Moreover, if AI is attributed to legal personhood, the same would sacrifice the prevention from carving technology-specific regimes and doctrinal integrity at the altar.

Concerning the current developments in artificial intelligence technologies, the free will of AI resulting in the commission of criminal activities to accomplish its personal agendas is a far-fetched myth. Moreover, the code has the onus of maintaining the AI machinery’s compliance with rules and regulations. It is pertinent to note that the application of these rules cannot be associated with the apparent free will of the AI. Thus, it should not be accredited with the liability for any criminal or tortious acts.

While attributing legal personality to an entity, the emphasis is either on the human substratum backing the entity as in the case of corporations, temples, trusts etc or on the characteristics of the entity that are analogous with humans such as self-determination, ability to feel joy and pain, autonomy, a certain degree of intelligence, self-awareness, etc., as in the case of animals. This implies that the rights and duties attributed to the possession of a legal personality are resultant of the nature of people in the society and the organisation of social relations amongst them. AI has no behaviour of its own, its behaviour is a mere mathematical specification in a code and it just does what it is programmed to do. It is imperative to remember that humans supplement their brain and brawn for external assistance and the most advance AI softwares are sans any objectives of their own. It is the human who feeds purpose to the machine. Moreover, AI has not developed to be sentient enough to ascertain its liabilities or even use its creativity, rationality and learning beyond a particular extent. Thus, garnering AI with legal personality in the current scenario is unjustified. AI is cardinal in society but should not be treated any more than as a product with regards to the responsibility for the harm caused by it.

Conclusion

In the present time, the world is an oyster for the rampantly developing and advancing Artificial Intelligence. Such unprecedented developments rekindle numerous legal issues that need to be addressed. However, granting legal personality to AI is questionable all over the world. No doubt the legislation will have to adapt itself to the technological developments of AI, treating it more than a tool or a product of human endeavor for easing human effort is uncalled for.


This article has been written by Samriddhi Talvar. Samridhi is a 4th year BBA LLB student at the University School of Law and Legal Studies, GGSIPU.