Artificial intelligence: legal advice & tips from an AI lawyer

Artificial intelligence (AI) has become increasingly important in recent years and is influencing more and more areas of life and business. Along with this, new legal issues are also emerging that need to be addressed by lawyers, courts and legislators. This text highlights the legal issues surrounding AI and provides expert advice for dealing with these complex challenges.

Table of Contents

1. Artificial Intelligence Definition
2. Advocacy for AI – advice on legal requirements
3. Legal basis for artificial intelligence
4. Copyright and Artificial Intelligence
5. Privacy and Artificial Intelligence
6. Liability issues with artificial intelligence
7. Artificial Intelligence and labor Law
8. Contract Law and Artificial Intelligence
9. Artificial Intelligence in Criminal Law
10. The role of the lawyer
11. Summary – Use and Application of Artificial Intelligence

Artificial Intelligence Definition

Artificial Intelligence (AI) – in English Artificial Intelligence (AI) – refers to the development of computer programs and systems that possess human-like intelligence, thinking and learning abilities. These systems are capable of,

• perform complex tasks,
• recognize patterns,
• make decisions and
• solve problems.

AI encompasses a variety of techniques and methods, including machine learning, neural networks, deep learning, natural language processing (NLP), and computer vision.

AI systems can act autonomously or semi-autonomously and are able to continuously improve their knowledge and capabilities through experience and interaction with data.

The application areas of AI are diverse and range from speech recognition, image recognition, autonomous driving, personalized recommendations, medical diagnostics, to work process automation and enterprise decision making.

Especially since ChatGPT has been increasingly used by companies and individuals in Germany, and its use has noticeably restructured several industries and professional fields, AI has once again become more in the public eye.

ChatGPT is an AI-powered language model developed by OpenAI. It is based on the GPT-4 architecture, an evolution of previous generations such as GPT-3. These AI models are trained to generate human-like text responses to posed questions or instructions. ChatGPT can be used in a variety of applications, such as customer service, personal assistant, content creation, or research and education support.

It is important to note that ChatGPT’s knowledge is limited to information through September 2021 and therefore may not reflect current events or developments. Further, it may be beneficial for users to obtain legal protection when using ChatGPT or other AI software. An attorney knowledgeable in the field of Artificial Intelligence and ChatGPT can provide answers to any legal questions you may have in this area.

How will artificial intelligence change the world of work and what effects on professions are already noticeable? If you are interested in this question, listen to the podcast episode “AI in the world of work – Algorithm take over!” from DATEV magazine. Here, lawyer Arthur Wilms from the Herfurtner law firm was interviewed on this topic. Lawyer Wilms will also be happy to answer your legal questions directly in the area of artificial intelligence.

Advocacy for AI – advice on legal requirements

AI Lawyer: Artificial Intelligence (AI) not only has the potential to fundamentally change our daily lives and the economy, but also poses a challenge to the legal system. The development and application of AI raises numerous legal issues that affect both domestic and international case law and legislation.

Below, our AI law firm will provide you with a more detailed explanation of some of the most important legal issues related to Artificial Intelligence.

Legal framework for Artificial Intelligence

The legal discussion of Artificial Intelligence starts with the question of the appropriate legal framework. Which laws and regulations are applicable to AI and to what extent do new laws need to be created to address the specific challenges of AI? Examples of relevant legal areas are:

• Copyright law
• Data protection law
• Liability law
• Labor law
• Contract law
• Criminal Law

Legal challenges related to AI

Some of the key legal challenges that arise in the context of AI include:

1. The extent to which AI systems can be considered legal entities and what rights and obligations they have.
2. Clarifying copyright issues, particularly with regard to works created by AI systems and the use of copyrighted material by AI systems.
3. Ensuring data protection and informational self-determination in the processing of personal data by AI systems.
4. The clarification of liability issues in the event of damage caused by AI systems, particularly in the field of autonomous vehicles and medical technology.
5. The adaptation of labor law regulations to the use of AI systems in the workplace and the consequences for employees.
6. The regulation of contract law issues related to AI systems, such as the responsibilities of AI developers and providers to their customers.
7. The application of criminal law to AI systems and the extent to which AI systems can be held liable for criminal acts.

Recent court rulings and changes in the law

In the field of artificial intelligence, a number of judicial decisions have already been issued that shed light on the legal dimension of AI. Examples include:

• The European Court of Justice (ECJ) ruling in Case C-516/17 (Spiegel Online GmbH v. Volker Beck), in which the ECJ ruled that the use of copyrighted works by AI systems in the context of text and data mining may constitute a permissible use.
• The US Copyright Office’s decision that the AI-created artwork “The Next Rembrandt” is not protected by copyright because it was created without human intervention.
• The introduction of the EU General Data Protection Regulation (GDPR), which regulates data protection when AI systems process personal data.

The legal debate on AI is far from over, and further legislative changes and court rulings are expected to follow in the coming years. Therefore, it is important to continuously keep abreast of the latest developments in AI law and seek legal and expert advice as necessary to meet the legal challenges of AI.

Legal basis for artificial intelligence

Law Firm for AI: The legal bases for artificial intelligence are diverse and affect different areas of law. It is important to note that, to date, there are no specific laws that relate exclusively to Artificial Intelligence. Instead, a variety of existing laws and regulations are relevant, which are explained in more detail below.

Basic Law (GG)

The Basic Law forms the basis for the entire legal system in Germany and is also relevant in the context of artificial intelligence, particularly with regard to fundamental rights such as freedom of expression, data protection, property or the right to informational self-determination.

European law

At the European level, the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights) and the EU directives and regulations in the areas of data protection, copyright and competition law are particularly relevant. The European Commission also presented a legislative proposal for AI regulation in April 2021, which has yet to be adopted by the EU member states and the European Parliament.

Copyright

The Copyright Act (UrhG) and the international Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) are relevant in the context of AI when it comes to the creation and use of AI-generated works. For example, the rulings of the European Court of Justice (ECJ) in cases C-145/10 (Eva-Maria Painer) and C-5/08 (Infopaq International) are relevant in this context.

Data protection law

The General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG) represent the authoritative legal bases in the area of data protection. They are particularly relevant when artificial intelligence relies on personal data to make decisions or optimize processes. An example of the application of the GDPR in the context of AI is the ruling of the European Court of Justice (ECJ) in Case C-210/16 (Wirtschaftsakademie Schleswig-Holstein).

Liability law

The German Civil Code (BGB), the Product Liability Act (ProdHaftG) and the Road Traffic Act (StVG) are relevant in the area of liability. Among other things, they regulate the liability of manufacturers and users of AI systems, for example in the event of damage caused by the use of autonomous vehicles. One relevant ruling is that of the Munich I Regional Court (Case No. 17 O 17368/17) on the liability of the manufacturer of an autopilot system.

Labor law

In labor law, the Working Hours Act (ArbZG), the Works Constitution Act (BetrVG) and the General Equal Treatment Act (AGG) are relevant when it comes to the use of artificial intelligence in the automation of work processes, employee monitoring or personnel decisions. One example is the ruling of the Federal Labor Court (BAG) of July 27, 2017 (Case No. 2 AZR 681/16) on the permissibility of monitoring employees using software.

Contract law

The German Civil Code (BGB) and the German Commercial Code (HGB) are the authoritative legal bases in contract law when it comes to drafting contracts for the development, licensing or use of AI systems. In this context, regulations on liability, warranty, intellectual property and data protection are of particular importance.

Criminal law

In criminal law, the German Criminal Code (Strafgesetzbuch, StGB), the German Administrative Offenses Act (Ordnungswidrigkeitengesetz, OWiG), and criminal procedural law are relevant when it comes to the use of AI in connection with criminal offenses or criminal consequences.

Examples include the use of AI systems to commit computer fraud (§ 263a StGB), data alteration (§ 303a StGB), or the distribution of malware (§ 202c StGB). A relevant ruling is that of the Federal Court of Justice (BGH) of October 26, 2016 (Ref. 2 StR 525/15) on liability for the distribution of botnets.

Competition law

The Unfair Competition Act (UWG) and the Act against Restraints of Competition (GWB) are relevant in the context of artificial intelligence when it comes to issues of market dominance, abuse of market power or unfair trade practices. An example of this is the decision of the German Federal Cartel Office of February 07, 2019 (Ref. B6-22/16) on the abuse of market power by Facebook in connection with the processing of user data.

Patent Law

Patent law, in particular the Patent Act (PatG) and the European Patent Convention (EPC), is relevant when it comes to protecting inventions in the field of artificial intelligence. Here, questions of patentability of AI technologies, disclosure and inventive step are of importance. An example of this is the decision of the Enlarged Board of Appeal of the European Patent Office (G 1/19) of 10.03.2021 on the patentability of computer-implemented inventions.

Telecommunications law

The Telecommunications Act (TKG) and the European Directive 2002/58/EC (ePrivacy Directive) are relevant when it comes to the use of artificial intelligence in the field of telecommunications, especially in connection with the processing of traffic and location data.

Copyright and Artificial Intelligence

Copyright issues arise in particular when Artificial Intelligence is used to create works. Examples include texts, pieces of music, or even artistic representations. Here, the Copyright Act (UrhG) and the international Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) are of particular importance.

Central questions here are whether and to what extent works created by AI are protected by copyright and who is to be regarded as the author.

Protectability of AI-generated works

According to Section 2 (1) UrhG, works of literature, science and art are protected if they constitute a personal intellectual creation. In the case of AI-generated works, the question arises as to whether they meet this requirement, since they were not created by human authors but by algorithms.

In some cases, however, it can be argued that the developer or user of the AI software, who sets the parameters and settings, can be considered the author, provided there is sufficient personal intellectual achievement.

Moral rights and exploitation rights.

If an AI-generated work is considered to be protected by copyright, further questions arise regarding moral rights (§§ 12-14 UrhG) and exploitation rights (§§ 15-24 UrhG). It must be clarified to what extent these rights can be transferred to the developer or user of the AI software and whether a legal regulation is required to clarify these legal relationships.

Restrictions on copyright

The use of AI-generated works is subject to the limitations of copyright law, as regulated in §§ 44a-63a UrhG. These barriers allow certain uses of copyrighted works without the consent of the author, for example in the context of quotations (Section 51 UrhG), teaching and science (Section 60a UrhG) or for the creation of parodies and caricatures (Section 24 (1) UrhG).

International Copyright Law

At the international level, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) is of importance. This convention ensures the protection of works in the contracting states and regulates, among other things, the so-called “right of public access” (Art. 8 Berne Convention). When using AI-generated works, international copyright law must therefore also be observed.

Example: Judgment of the European Court of Justice (ECJ) in Case C-145/10 (Eva-Maria Painer).

In this decision, the ECJ clarified that a work can be considered a personal intellectual creation if it reflects the author’s “creative freedom” and thereby constitutes an “own intellectual creation”. Although this decision does not directly relate to AI-generated works, it demonstrates the ECJ’s basic approach to assessing the protectability of works and can be used as guidance for the assessment of AI-generated works.

Example: judgment of the European Court of Justice (ECJ) in Case C-5/08 (Infopaq International).

In this case, the ECJ ruled that text excerpts can be protected by copyright if they constitute the author’s “own intellectual creation.” This decision is relevant in the context of AI-generated works, as it shows that even smaller text excerpts or components of AI-generated works may be eligible for copyright protection if they constitute the author’s own intellectual creation.

Artificial intelligence: legal regulations and reform proposals

Given the increasing importance of AI and the multitude of copyright issues that arise in this context, it is conceivable that legislators will introduce specific regulations for AI-generated works or adapt existing laws in the future.

For example, regulations on the attribution of moral rights and exploitation rights for AI-generated works could be created, or limitation regulations could be adapted to take into account the special challenges in the field of artificial intelligence.

As the technology and the legal framework are constantly evolving, it is crucial to stay up-to-date with the latest case law and legislation in order to minimize legal risks and maximize the potential of AI.

Privacy and Artificial Intelligence

Data privacy is a key concern in the context of AI, as AI systems often rely on large amounts of personal data to function and be effective. Below is a more detailed discussion of some of the key data privacy issues related to AI:

Applicable data protection laws

Data protection laws relevant to artificial intelligence include national and international regulations. In particular, the EU General Data Protection Regulation (GDPR) plays an important role as it regulates the protection of personal data throughout the European Union. The GDPR sets out various principles and obligations for the processing of personal data that also apply to AI systems, such as:

1. Lawfulness, fairness and transparency
2. Purpose limitation
3. Data minimization
4. Accuracy
5. Storage limitation
6. Integrity and confidentiality

Legal challenges related to AI and data privacy

Data protection legal challenges that arise in the context of AI include:

• Identifying controllers and processors: under the GDPR, it is important to clarify the roles of the parties involved in the processing of personal data by AI systems. This can be particularly difficult with complex AI systems and multiple parties involved.
• Ensuring consent: The processing of personal data by AI systems often requires the consent of data subjects. It is important that this consent is voluntary, informed and unambiguous.
• Implementing privacy impact assessments: For certain AI systems that pose a high risk to the rights and freedoms of data subjects, a data protection impact assessment is required. This should identify the risks and propose appropriate mitigation measures.
• Implement data protection through technology design and privacy-friendly default settings (privacy by design and privacy by default): AI systems should be designed to comply with privacy principles from the outset and include privacy-friendly defaults.

Examples and recent court rulings – Artificial Intelligence

Some examples of data privacy issues related to Artificial Intelligence and corresponding court rulings are:

1. The Google Spain case (ECJ, C-131/12): In this ruling, the European Court of Justice found that search engine operators are responsible for processing personal data and that data subjects have a right to be forgotten. This also has implications for AI-powered search engines and their obligations with regard to data protection.
2. The Breyer case (ECJ, C-582/14): In this judgment, the ECJ ruled that dynamic IP addresses can be considered personal data under certain circumstances. This has significance for AI systems that process such data.

Liability issues with artificial intelligence

Depending on the legal system and contractual arrangements, liability for damage caused by AI may be limited or even excluded. It is therefore important to find out about the applicable liability regulations and limitations in connection with AI in the respective jurisdiction and, if necessary, to make appropriate contractual arrangements.

Liability for damages caused by artificial intelligence

Liability for damages caused by Artificial Intelligence can be divided into different categories:

a) Liability for material damage: this refers to damage to property or assets caused by AI. Examples include damage caused by autonomous vehicles or robots.

b) Liability for immaterial damage: This involves damage that has not occurred directly to material assets but, for example, due to violations of personal rights or data protection violations by AI systems.

c) Liability for purely economic damage: This category includes damage that has no direct connection to a thing or person, for example, damage caused by faulty investment decisions based on recommendations made by an AI.

Producer Liability

The manufacturer of an AI may be liable for damages caused by its products. The basis for liability may vary depending on the jurisdiction:

1. Contractual liability: if there is a contract between the manufacturer and the injured party, the manufacturer may be liable for damages caused by its AI based on contractual breaches of duty.
2. Tortious liability: In many jurisdictions, such as German law, the manufacturer may also be liable for damages caused by its AI independently of a contract. The basis for this is so-called “product liability.” In German law, this is regulated in the Product Liability Act (ProdHaftG).
3. Liability for faulty instructions or faulty maintenance: the manufacturer can also be liable for damages caused by faulty instructions regarding the use of the AI or due to faulty maintenance.

User Liability

The user of an AI may also be liable for damages caused by the AI. This may be damage caused by improper handling of the AI, inadequate supervision or control over the AI, or a breach of duties related to the AI.

An example of user liability is the judgment of the German Regional Court of Arnsberg of June 27, 2019 (Case No. 2 O 45/19), in which the driver of a Tesla Model S was liable for an accident because he relied on the vehicle’s Autopilot when he should have been in control of the vehicle.

Limitations and exclusions of liability

Depending on the legal system and contract design, liability for damages caused by artificial intelligence may be limited or even excluded. It is therefore important to find out about the applicable liability regulations and limitations in connection with AI in the respective jurisdiction and, if necessary, to make appropriate contractual arrangements.

Artificial intelligence – future developments in the area of liability

Given the rapid technological developments in the field of AI, it is to be expected that liability law will also have to evolve and adapt to meet the new challenges. Some possible developments in the area of AI liability include:

• Introduction of a specific AI liability: In some countries, there is a discussion on whether a specific liability regime for AI should be introduced that takes into account the specificities of AI technology and allows for an appropriate distribution of liability between producers, users, and possibly even the AI itself.
• Liability of AI as an independent legal entity: Another option is to recognize AI as an independent legal entity and thus make it directly liable. This could be realized, for example, by introducing an “electronic person,” similar to the legal entity in corporate law. However, it would have to be clarified how claims against such an “electronic person” could be enforced and who would ultimately be liable for the damages.
• Liability insurance for artificial intelligence: In order to cover the liability risks associated with artificial intelligence, mandatory liability insurance policies could be introduced for manufacturers or users. These would ensure that injured parties are adequately compensated in the event of damage without the innovative power of the AI industry being restricted by excessive liability risks.
• Adjust existing liability regimes: Another option is to adapt existing liability regimes and principles to the specifics of AI. This could be done, for example, by introducing a strict liability model that shifts more of the liability for damages caused by AI to the manufacturer or the user, without the need to prove fault.

Artificial intelligence and labor law

Artificial intelligence (AI) has the potential to fundamentally change the world of work. It offers opportunities and challenges for employees and employers alike. Below, we take a closer look at the legal aspects of AI in employment law, including the impact on employment contracts, employee rights, and terms and conditions of employment.

Impact on employment contracts

The introduction of AI in companies may lead to changes in employment contracts. Here are some points to consider in this context:

1. Adjustment of job descriptions: As AI is implemented, it may be necessary to adjust employee job descriptions to accommodate working with AI systems.
2. Training and retraining: employers should consider providing training and retraining for their employees to develop their skills in working with AI.
3. Protection against dismissal: Employees could be affected by dismissals due to AI-related restructuring of jobs. In such cases, protection against dismissal should be ensured in accordance with applicable laws and collective agreements.

Lawyer Arthur Wilms in an interview: “There are enough possibilities for the works council to control and regulate the use of AI”.

Employee rights and employment conditions

Artificial intelligence may also affect workers’ rights and employment conditions:

• Data privacy: AI can be used to monitor and evaluate employee performance. Employers must ensure that they uphold employees’ data protection rights under the General Data Protection Regulation (GDPR) and national data protection laws.
• Discrimination: AI systems may unintentionally make discriminatory decisions, e.g. in recruitment or promotions. Employers must ensure that they do not violate the General Equal Treatment Act (AGG) and guarantee equal opportunities.
• Working hours: AI can lead to employees being put under more pressure to improve their performance. Employers must comply with working time laws and rest periods and protect the health and well-being of their employees.

Current court rulings and laws

• BAG, judgment of May 25, 2016, Case No. 5 AZR 716/15: In this decision, the Federal Labor Court clarified that employers are obliged to take the necessary measures to protect the health of their employees in connection with the introduction of new technologies.
• ECJ, judgment of November 9, 2017, Case No. C-306/16: The European Court of Justice has ruled that employers are obliged to introduce systems to record the working time of their employees in order to ensure compliance with working time laws.

Examples of the use of AI in employment law include

1. Automated applicant selection: AI can be used to analyze applications and identify suitable candidates for open positions. However, in doing so, employers must ensure that no discrimination takes place and that applicants’ data protection rights are respected.
2. AI-powered performance evaluation: AI can help evaluate employee performance more objectively and accurately. However, in doing so, employers should ensure that employee rights, particularly with regard to data protection and discrimination, are preserved.

In summary, AI is impacting employment law in many ways. Companies wishing to implement AI should therefore find out about the relevant legal aspects in good time and take appropriate measures to ensure compliance with the applicable laws and regulations.

This can be done, for example, by involving legal experts, adapting employment contracts, or conducting training and continuing education for employees.

Works council and artificial intelligence

The works council plays an important role in the introduction of artificial intelligence in the company. According to the Works Constitution Act (BetrVG), the works council has a right of co-determination in the introduction of technical equipment designed to monitor the behavior or performance of employees (Section 87 (1) No. 6 BetrVG).

Employers should therefore seek dialog with the works council at an early stage and jointly develop regulations on the use of AI in order to safeguard the interests of employees and avoid potential conflicts.

Future prospects: regulation of artificial intelligence in labor law

As artificial intelligence takes on an ever greater role in the world of work, it is important to continuously adapt and develop the legal framework. This can be done, for example, by creating new laws or adapting existing regulations. Some possible developments could be:

• Introducing specific laws to regulate AI in labor law, for example, regulating employers’ responsibilities, protecting employees’ rights, and dealing with AI-related terminations.
• Expanding the jurisdiction of labor courts to handle AI-related disputes, such as discrimination by AI systems or data privacy violations.
• Creating new job profiles and qualifications for workers who specialize in dealing with AI to meet the demands of the labor market and promote equal opportunities for all workers.

Overall, it can be seen that artificial intelligence is influencing employment law in many ways and brings both opportunities and challenges for employees and employers. In order to minimize legal risks and ensure the successful use of AI in the work environment, it is crucial to continuously keep abreast of current developments in the legal field and take appropriate action.

Contract Law and artificial intelligence

Artificial intelligence (AI) and smart contracts are playing an increasingly important role in contract law. Below, we discuss various aspects of contract law in the context of AI, including contract formation by AI, liability for breach of contract, and the role of smart contracts.

Contract formation through artificial intelligence

Contract formation by AI raises the question of whether and under what conditions an AI can be recognized as a contracting party. In many jurisdictions, it is currently still unclear whether an AI itself can conclude contracts and thus enter into legally binding obligations. In practice, contracts are therefore often concluded by human representatives acting on behalf of the AI.

However, some jurisdictions already recognize contracts concluded by automated systems without human intervention. Examples include the U.S. Uniform Electronic Transactions Act (UETA) and EU law, in particular the eIDAS Regulation (Regulation (EU) No. 910/2014).

Liability for breach of contract

Liability for breach of contract in the context of AI concerns both the liability of the manufacturer and the liability of the user of the AI. Different bases of liability may apply here:

a) Contractual liability: in the event of a breach of contract by artificial intelligence, the manufacturer or user may be liable on the basis of contractual breaches of duty. However, it must be clarified here whether a limitation of liability or an exclusion of liability has been agreed.

b) Liability in tort: The manufacturer or user may also be liable for damage caused by the AI independently of a contract if the damage occurred as a result of an unlawful act.

c) Liability for faulty instructions or defective maintenance: the manufacturer or user may also be liable for damages caused due to faulty instructions regarding the use of the AI or due to defective maintenance.

The role of smart contracts

Smart contracts are self-executing contracts whose terms are written directly in computer code and stored on a blockchain. They allow contracts to be executed automatically once the specified conditions are met. In the context of artificial intelligence, they offer some advantages, such as efficiency, transparency and cost savings. However, they also raise legal issues:

• Contract content and interpretation: Because smart contracts are written in computer code, ambiguities can arise in the interpretation of contract terms, especially if the parties to the contract have different views on the meaning of the code.
• Applicable law and jurisdiction: In the case of cross-border smart contracts, it can be difficult to determine the applicable law and the competent jurisdiction, especially if the contracting parties are located in different countries.
• Privacy and security: Since smart contracts are stored on a blockchain, privacy and security issues may arise, such as when personal data is processed without the consent of the data subjects or when security vulnerabilities in the code are exploited.

Future developments in contract law and artificial intelligence.

Given the rapid technological developments in the field of artificial intelligence, it is to be expected that contract law will also have to evolve and adapt to meet the new challenges. Some possible developments in the area of contract law and AI include:

1. Legal recognition of AI as a contracting party: In the future, the legal recognition of AI as a contracting party could be expanded in various jurisdictions. This would mean that AI systems themselves could enter into contracts and enter into legally binding obligations.
2. Adaptation of existing contract principles: In order to take into account the specificities of AI in contract law, existing contract principles could be adapted. This could be done, for example, by introducing new rules on liability, contract formation or contract interpretation.
3. Standardization of smart contracts: In order to reduce legal uncertainty in the context of smart contracts, standardized contract clauses and terms could be developed in the future to enable a uniform interpretation and application of smart contracts.
4. International cooperation and harmonization: As artificial intelligence and smart contracts are increasingly used across borders, international cooperation and harmonization of legal regulations in the area of contract law is necessary. This could be done, for example, by concluding international conventions or by developing common guidelines and standards.

In order to meet the legal challenges, it is important to continuously review and, if necessary, adapt the existing contract law regulations to ensure an appropriate balance between the interests of the contracting parties and the social and economic potential of artificial intelligence.

Artificial intelligence in criminal law

The application of artificial intelligence (AI) in criminal law raises numerous legal issues. Below, we address various aspects of criminal law related to AI, including the criminal liability of AI systems, the role of AI in law enforcement, and the impact of AI on the criminal justice system.

Criminal Accountability of AI Systems

The criminal accountability of AI is one of the key challenges related to the application of AI in criminal law. Since AI systems are not natural persons, they cannot in principle be held directly criminally liable. Nevertheless, the question arises as to how responsibility for crimes committed by AI systems should be regulated:

• Responsibility of the manufacturer: the manufacturer of an AI may be liable for criminal acts caused by its AI if, for example, it intentionally or negligently developed or placed a defective AI on the market.
• Liability of the user: The user of an AI may be liable for criminal offenses caused by the AI if, for example, he or she has used the AI intentionally or negligently or if he or she has not fulfilled his or her supervisory and control obligations.
• Creation of a new criminal offense: Another option is to introduce a new criminal offense related to AI that clearly regulates criminal liability for damage caused by AI systems.

Artificial intelligence and its role in law enforcement

Artificial intelligence can play an important role in law enforcement, for example in solving crimes, analyzing evidence, and identifying suspects. However, legal and ethical issues must be considered in this regard:

a) Data protection and personal rights: Data protection and personal rights must be respected when AI is used in law enforcement. This relates in particular to the handling of personal data and the extent to which AI systems may be used to collect and evaluate information about individuals.

b) Discrimination and bias: AI systems can reproduce unconscious bias and discrimination in their decisions and predictions if they have been trained on biased data. To ensure that AI is used fairly and equitably in law enforcement, mechanisms must be developed to detect and eliminate discrimination and bias.

c) Transparency and accountability: the decision-making processes of AI systems must be transparent and accountable, especially when used in law enforcement. This is necessary to ensure public trust in law enforcement and the criminal justice system, and to ensure that the rights of data subjects are upheld.

Impact of AI on the criminal justice system

The application of AI may also have implications for the criminal justice system as a whole:

• Increasing efficiency: the use of AI can make the criminal justice system more efficient by, for example, automating procedural processes and reducing administrative tasks.
• Improving crime prevention: AI can help improve crime prevention by being used in identifying crime patterns, predicting crime hot spots, and developing prevention strategies.
• Fairness and justice: AI can help promote fairness and justice in the criminal justice system, for example, by being used in risk assessment of offenders, peer review of evidence, and decision making in court proceedings. In doing so, however, the aforementioned challenges of discrimination, bias, and transparency must be overcome.
• Impact on sentencing and resocialization: AI can also play a role in determining the appropriate sentence and developing resocialization measures for offenders by analyzing individual risk profiles and needs and suggesting targeted interventions on this basis.

Future developments in criminal justice and artificial intelligence.

Given the rapid technological developments in the field of artificial intelligence, it is to be expected that criminal law will also have to evolve and adapt to meet the new challenges. Some possible developments in the area of criminal law and artificial intelligence include:

1. Adaptation of existing criminal provisions: In order to take account of the special features of artificial intelligence in criminal law, existing criminal provisions could be adapted, for example with regard to criminal liability or the attribution of acts.
2. Creation of new criminal offenses: In the future, new criminal offenses related to AI could be introduced to adequately capture and sanction specific threats posed by AI systems.
3. International cooperation and harmonization: As artificial intelligence and its application in criminal law are increasingly used across borders, international cooperation and harmonization of criminal law regulations in the field of AI is necessary. This could be done, for example, by concluding international conventions or by developing common guidelines and standards.

The role of the lawyer

Given the increasing prevalence and complexity of artificial intelligence (AI), it is essential for companies and individuals to rely on qualified lawyers and experts to address legal issues. They can help navigate legal challenges and ensure that AI systems are developed and deployed in a legally compliant manner.

Some of the key aspects of the role of lawyers and experts in AI law are discussed in more detail below.

Advice and representation

Lawyers and experts can assist companies and individuals in a variety of capacities:

1. Legal advice: lawyers and experts can inform their clients about applicable laws and regulations related to AI and provide recommendations for the legally compliant development and use of AI systems.
2. Contract drafting: Lawyers and experts can assist in the drafting and review of contracts related to AI systems, for example in the drafting of license agreements, development agreements or service agreements.
3. Representation in court: in the event of legal disputes related to AI systems, lawyers can represent their clients in court and stand up for their rights and interests.
   Arbitration and mediation: lawyers and experts can act as arbitrators or mediators in disputes related to AI systems and help find an amicable solution.

Interdisciplinary collaboration

Because AI is an interfacing technology that touches on different areas of law, close collaboration between lawyers and experts from different disciplines is essential. Examples of relevant areas of expertise include:

• Copyright law
• Data protection law
• Liability law
• Employment law
• Contract law
• Criminal Law
• Technology and computer science

Training and specialization

In view of the rapid development of artificial intelligence and the associated legal challenges, it is important for lawyers and experts to continuously educate themselves and keep up to date with the latest case law and legislation.

This can be done by attending continuing education events, participating in professional conferences or becoming a member of relevant professional associations.

Examples and recent court decisions

Some examples of cases in which lawyers and experts in AI law have played an important role are:

1. The Google Spain case (ECJ, C-131/12): In this case, lawyers represented the interests of Google and the plaintiff concerned in relation to the right to be forgotten and the responsibility of search engine operators for the processing of personal data.
2. The case of a software developer in Germany who sued against his dismissal due to the automation of his activities by an AI system. Lawyers represented the interests of the employee and the employer before the labor court.

Summary – Use and Application of Artificial Intelligence

Artificial intelligence offers numerous opportunities and challenges for business and society. The legal issues are diverse and affect a large number of legal areas. It is therefore important to have a thorough knowledge of the legal framework in connection with AI and to seek advice from experts.

As technology and the legal framework are constantly evolving, it is crucial to stay up-to-date with the latest case law and legislation.

Current developments and case law

Case law related to artificial intelligence is continuously evolving.

Examples include the decisions of the European Court of Justice (ECJ) in cases C-145/10 (Eva-Maria Painer) and C-5/08 (Infopaq International), which are relevant for assessing the protectability of AI-generated works.

Equally relevant is the ruling of the Munich I Regional Court (Case No. 17 O 17368/17) on the liability of the manufacturer of an autopilot system. These and other decisions show the dynamics of case law in the field of artificial intelligence.

Legislative activities

Developments can also be observed at the legislative level. For example, in April 2021, the European Commission presented a legislative proposal for AI regulation, which still has to be adopted by the EU member states and the European Parliament.

Among other things, this proposal provides for binding requirements for AI systems in terms of transparency, data protection and liability. In addition, national legislators could in the future introduce specific regulations for AI-generated works or adapt existing laws to take into account the specific challenges in the field of AI.

International cooperation and harmonization

Given the global dimension of AI, international cooperation and harmonization of legal frameworks is of great importance. This includes, for example, multilateral agreements and cooperation, such as the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) or the European Patent Convention (EPC), which regulate the protection of AI-generated works and inventions across borders.

Artificial intelligence and the role of lawyers

The role of lawyers and expert advice in the field of AI will become even more important in the future to help companies and individuals identify and minimize legal risks.

They can help maximize the potential of AI by advising on strategies for the use and implementation of AI systems and providing legal assistance in the event of litigation or regulatory investigations.

If you have legal questions about the use of artificial intelligence, we offer free initial consultation – nationwide and throughout German-speaking countries. Contact us and describe your individual case.

Arthur Wilms | Lawyer | Associate

How will artificial intelligence change the world of work and what effects should employers and employees prepare for now? Attorney Arthur Wilms from the Herfurtner law firm comments on this question in the DATEV magazin podcast „AI in the world of work – Algorithm take over!“.

Of course, lawyer Wilms is also directly available for legal questions in the area of artificial intelligence. For a free initial consultation, please feel free to contact our law firm.

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