THE NEW HAVEN CALLED ARTIFICIAL INTELLIGENCE PERSONA: ETHICAL CONSIDERATIONS VIS-A-VIS THE POSITION OF THE LAW

 THE NEW HAVEN CALLED ARTIFICIAL INTELLIGENCE PERSONA: ETHICAL CONSIDERATIONS VIS-A-VIS THE POSITION OF THE LAW

Ted-Eze Joshua

University Of Nigeria

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1.0 INTRODUCTION AND PRELIMINARY BACKGROUND 

AI personas refer to a particular aspect of AI that gives the AI a human personality to facilitate better human interface or interaction. Although the normal AI carries out operations quite efficiently, AI personas add a human feeling to the blend and make interactions more explicit. These occur in many instances, like chatting with an AI medical doctor who diagnoses your sickness and gives prescriptions. Having an AI waiter in a restaurant. A more relatable instance is when you have an AI banking assistant who aids you in solving banking issues with ease.  That is indeed the quiddity of AI personas. 

The historical development of Artificial  Intelligence has been fairly recent, with its birth being traced to the mid-20th century. The first “AI period” began with the Dartmouth Conference in 1956, where AI got its name and mission. McCarthy coined the term "artificial intelligence," which became the name of the scientific field. 

Years after its origin, AI has significantly evolved. AI personas now conduct research seamlessly, with scientific research-based experiments. An infamous evolution of AI personas is the Chat-GPT assistant which is now even capable of performing jobs that humans ordinarily cannot perform. Despite the numerous benefits, there have been issues regarding AI persona creators breaching vital confidential information of users. The issues have raised concerns about the legality of AI personas. 

2.0 CREATORS' RIGHTS IN EXTANT LAWS

Essentially, a creator is an inventor. Black's Law Dictionary defines the term as "one who finds out or contrives some new thing; one who devises some new art, manufacture, mechanical appliance, or process; one who invents a patentable contrivance".  Nigeria, being a developing country, has not yet enacted specific laws to protect the creator's rights from being infringed upon. However, the EU has provided a motion for the enactment of the first EU Artificial Intelligence Act with a very wide regulatory framework. In addition to this, there are Nigerian statutes concerned with intellectual property which may apply to Artificial Intelligence. 

There are three main laws guiding intellectual property in Nigeria viz: the Copyrights Act, the Trademarks Act, and the Patent and Designs Act. These statutes all have provisions that can guarantee the creator's rights. 

To begin with, Section 1(a) and (b) of the Patent and Designs Act provides that an inventor must show that his invention is new and is a consequence of inventive activity that can be applied industrially and that the invention must be an improvement upon a patented invention which is also new, results from inventive capacity and has the capability of inventing before his invention can be patentable. Section 1(1)(a) of the Copyright Act makes a provision that literary devices are copyrighted and an AI persona can pass off as one.  Section 2(2)(a) provides that for a work to be eligible for copyright, efforts must have been expended on it. 

The question that exposes a lacuna is; do creators of AI personas and works created by these personas meet the above criterion even when there was little or no human effort expended? Some jurisdictions hold that the creator has no copyright over AI-generated works. This view is supported in the celebrated Australian case of Acohs Pty Ltd v Ucorp Pty, where the court held that a work created by a computer shall not be protected by copyright because it was not produced by humans. Other jurisdictions like the UK hold that the creator of the AI persona is vicariously entitled to AI-generated inventions. It is the writer's humble opinion that the creator of an AI persona should also possess the right to his AI-generated works, except in situations where the user was the one who expended energy to create such work. It would be unconscionable to hold that the Creator possesses the right, as that could imply that the owner of a pen used by a writer is the owner of the work written. 

It is my humble submission that regulatory bodies in Nigeria incorporate situations like the above in statute, providing for measures concerning the use and ownership of such works. 

3.0 USERS' PRIVACY 

A user, in the topical context, can be a purchaser of an AI product, as well as one who merely puts it to use but may not purchase it. It is a popular saying in law that the right of one stops where others begin. As much as the creators of AI persona possess rights, it should not override the rights and privacy of the users. 

Data privacy challenges have raised and will continue to raise serious legal concerns over the years and beyond. Section 37 of the 1999 Constitution provides for the right to privacy of all Nigerians as regards their homes, correspondence, telephone conversations, and telegraphic communications. Although this right is not absolute, it lays the foundation and the necessity for users' privacy to be protected. Other statutes like the Freedom of Information Actand Data Protection Act can guarantee the privacy of AI persona users. Additionally, important policies by regulatory bodies such as The Nigeria Data Protection Regulation (NDPR) 2019, have enabled robust subsidiary legislation to protect data privacy in Nigeria. 

It is noteworthy that despite these provisions, the issues of users' privacy being overridden by creators' rights continue to emerge. 

4.0 CREATORS' RIGHTS OR USER PRIVACY? 

The million-dollar question is, should the privacy of the user be sacrificed at the altar of creators' rights or vice versa? Does the AI creator have the right to access users' confidential information to improve his persona? The Constitution being the grund norm in our corpus juris seems to answer this question. It guarantees the privacy of Nigerian citizens and this is notwithstanding any right conferred on AI personas' creators. The constitution is supreme and any law that is inconsistent with the constitution shall be null and void to the extent of inconsistency. 

The Creator, in my opinion, lacks the right to infringe on privacy without asking for informed consent.  The question of consent makes the issue more complex. Bearing in mind that this constitutionally guaranteed right is not absolute, what if the user consents to the terms and conditions, will the principle of volenti non fit injuria apply? The answer seems to be positive. There is therefore a duty of circumspection imposed on AI users to be careful to read through the terms and conditions to avoid a waiver of the right to privacy in any form. Most AI bots have terms and conditions that violate the constitutional right to privacy. They ride on the laziness of users to read through and plead a waiver. It is the respected view of the writer that terms and conditions on AI personas should be well explained in a user-friendly manner to ensure informed consent as one cannot be said to have consented to what he is not aware of. The position that one has waived his right after clicking "I agree" to lengthy and ambiguous terms and conditions is thus flawed. 

5.0 CONCLUSION 

Conclusively, the issue of creators' rights overriding users' privacy and vice versa is a complex one that calls for a balance. However, the right to privacy is constitutionally guaranteed and must be given preference in this clash to avoid AI personas overriding human beings. AI was made for man and not man for AI.  The creators of AI personas should also desist from breaching the trust of their users to improve themselves without informed consent as this is unethical in nature. 

Policies and laws specifically criminalizing and punishing privacy breaches should be enacted and enforced. Creators' rights should be further protected and regulated to encourage more human investments in AI personas and on the other hand, avoid abuse of these rights. If the equilibrium in interests can be guaranteed through proper law-making and policy regulations, AI personas will become a dawn rather than a darkness in the terrains of our country and the society at large.