• Who’s in control? The case for legal leadership

    Whos in control The case for legal leadership - nigeria newspapers online
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    By Obinna Kalu

    There is no uniform definition of the concept of Artificial Intelligence (AI).  In the context of this essay, the definition provided by the Nigerian National Information Technology Development Agency (NITDA) is very apt. The Agency states that “Artificial Intelligence (AI) is the simulation of human intelligence in machines that are programmed to think, learn, and act like humans, enabling them to perform tasks that typically require human intelligence, such as understanding, reasoning, problem-solving, and learning.”

    AI was coined by John Mc Carthy, Marvin Minsky, Nathaniel Rochester and Claude Shannon at The Dartmouth Conference of 1956 held at Dartmouth College, New Hampshire, USA. The concept is a new entrant to the field of Technology compared with stone tools which was the oldest technology developed by humans about two million years ago. However, despite its relatively young age, AI has brought fundamental and impactful transformations to the modern world. In fact, with the rapid changes and unprecedented revolution it has brought to the present age, any nation, government, industry, or institution that fails to key into its new possibilities, and emerging dynamics in one way or another is bound to have a bleak future. In the past, AI was seen as technology for the future, but the reality is that, it is here with humanity, intrepidly influencing our daily lives and will still continue to heavily shape and determine how we live our lives in many centuries to come.

    Globally, AI is being deployed in a wide range of fields such as E-Commerce, Education, Lifestyles, Navigation, Robotics, Human Resource, Healthcare, Agriculture, Gaming, Automobiles, Social Media, Marketing, Chatbots, Finance, Astronomy, Data Security, Aviation, Transportation, and Automotive Industry. According to a publication by Statista, income generated from software market globally is estimated to reach 126 billion US Dollars by 2025.

    In Nigeria, although so many people have argued that AI is still in its infancy stage, there is no doubt that its innovative application permeates across various fields. Some of the leading companies that are currently providing AI solutions in Nigeria are: AirSmat, Kudi Al, Data Science Nigeria, Robostic and Artificial Intelligence Nigeria (RAIN). Indeed, the tremendous influence and positive changes that AI has brought to bear in various fields in Nigeria cannot be stressed enough. For instance, in the healthcare sector, more lives are being saved courtesy of improved AI-powered medical diagnostic devices. AI has also enhanced integrated disease surveillance response strategy of the Nigeria Centre for Disease Control (NCDC). The application of AI into financial services in Nigeria has greatly reshaped the financial sector offering unparalleled opportunities for innovation and efficiency in fraud detection, credit risk assessment, and customer-centered financial advisory services. In the agricultural landscape, the emergence of AI has brought a fundamental shift from traditional farming methods, enabling smarter, more efficient practices in precision farming, crop yield prediction, and livestock monitoring. Although AI is yet to be effectively integrated into Nigeria’s internal security architecture, its little en route in that sector has assisted in no small measure in the quest to keep communities safer and better secured through computerized crime tracking information systems as being employed by security establishments during criminal investigations. The transport and communication sector has witnessed the introduction of intelligent traffic surveillance and control systems to manage speed which has assisted in the reduction of road accident and enhanced safety.  Other sectors in Nigeria where AI has been integrated include Education, Media, Customer Service, Manufacturing, Marketing/Advertising, Public Service, E-Commerce.

    As the world continues to witness and reap the benefits of the rapid expansion of AI technologies, one noticeable global mistake is that the technology was allowed to exist and expand for several years without taking steps to put in place necessary comprehensive regulatory framework. This time gap made it possible for the technology to outpace the jurisprudential norms that should have ab initio underpinned its emergence. For instance, USA, China and UK which are the three top countries with the most developed AI research and technologies do not currently have comprehensive laws on AI. The failure to formulate appropriate and comprehensive laws and policies to govern the use of the technology from its launch has led to a number of challenges and negative implications on society, individual and businesses. Global social and economic challenges like biases, discrimination, privacy violations, job displacement, environmental abuses, lack of accountability, unfair competitions, human rights abuses, security risks et cetera have been complicated by the absence of comprehensive legal structures that can strike the right balance between AI innovation, expansion and societal well-being.

       In a hurried attempt to fill the gap and build on previous action, President Biden in October 30, 2023 issued an Executive Order which establishes new standards on the Safe, Secure, and Trustworthy Development and Use of AI. This Order highlights eight guiding principles and priorities for AI development and use, including ensuring AI safety and security, promoting responsible and innovation, supporting American workers, and protecting civil liberties. Also, the UK Government recently adopted a “cross-sector and outcome-based” framework for regulating AI. China does not currently have a comprehensive AI law. The country’s regulatory approach is to enact individual laws when a new AI technology emerges. For instance, it has different sets of rules for a variety of IT services and products like generative AI, deepfakes and algorithmic recommendation systems. The European Union in 2023 passed the first AI all-encompassing law which outlaws some AI uses, such as creating facial recognition databases or using emotion recognition technology at work or in school. 

    Back home, Nigeria does not have a comprehensive AI legislation, but there are several institutional and sector-based legal frameworks that barely touch directly or indirectly on AI, such as; Cybercrime (Prohibition, Prevention, etc) (amendment) Act 2024; Copyright Act, 2022; Patent and Designs Act, 1988 Cap P2 LFN 2004; Trademarks Act, Cap T3, LFN 2004; Nigerian Data Protection Act 2023; the Federal Competition and Consumer Protection Act 2018 (which establishes the Federal Competition and Consumer Protection Commission and the Competition and Consumer Protection Tribunal);  and the Nigerian Communications Act, 2003 (which established the National Communication Commission NCC). A critical review of the contents of the above laws  vis-à-vis AI development shows they are riddled with gaps in the areas of algorithms deployment, intellectual property, data protection, institutional oversight and enforcement, ethical concerns, funding, inclusive stakeholder engagement, innovation and competitiveness, international cooperation and alignment, digital literacy, limited expertise, public awareness creation, and transparency among so many others. 

    An example of this statutory ineffectualness in the Copyright Act, 2022 was brilliantly spotted and discussed by Joshua Olewu, Esq. in his publication in The Nigerian Lawyer online publication of May 27, 2023 titled: “Originality and Novelty: Generative AI and IP Rights Protection Under Nigerian Laws”. The Author submits that: “One of the most significant issues is whether AI-generated ideas qualify for protection under the present IPR system on the basis of originality. IPR protection is legally granted to an individual for their original work, not that of someone else. It begs the question of who controls the copyright for contents produced by AI—the person giving the AI instructions, the AI performing the electronic computation that produced the content, or the original authors from whom the AI sourced its output (and in whom certain intellectual property rights also reside)? The claims by ChatGPT and Terms of Use (for instance) that the generated content belongs to the person to whom it is generated, is a well defiled position being followed by a clause that the AI can use the same content as response to another user of the Chat-bot (OpenAI, 2023). This does not address the rights of the first user or the IPR existing in the sources the contents are generated from. These policies however and wherever applied, do not make general applicability since IPR protection is grantable per jurisdiction according to their laws (except the few circumstances where the effect of Bilateral Treaties come to play). Noteworthy however, is the provisions of section 2(4) of the Copyright Act 2022 that work shall not be disqualified from copyright protection only because its creation or performance involves the infringement of another work’s copyright. This provision requires judicial interpretation for clearer application to the discourse on Generative AI as the legislative intention cannot be to authenticate copied works”.

    Just like the Copyright Act, a critical review of the Nigerian Data Protection Act, 2023 shows some gaps in relation to the regulation of AI in Nigeria. The Act fails to comprehensively cover important issues like AI, machine learning, or automated decision-making, and data minimization in AI applications. There is also absence of detailed and clear strategies for handling AI-generated personal data by AI systems, such as chatbots or virtual assistants. Contemporary issues of biometric data collection, use, and protection; cross border data transfers; data protection impact assessments for high-risk AI applications; and data breach notification in AI applications were also not addressed in the Act.

    Now that AI technology in Nigeria is still in its infancy and as the nation aspires to assume a leadership role in AI adoption and innovation in Africa, the mistakes of the advanced countries should not be repeated. Concerted effort should be urgently made by the National Assembly, researchers, experts, policymakers and other critical stakeholders to urgently kick off the process of enacting a comprehensive AI Act that will address the regulatory lacuna identified above and provide a clear framework for the development, deployment, use and enforcement of AI resources in Nigeria. This proactive and remedial intervention will reduce the reactive legislative struggle to keep pace with the rapid evolution of AI.

    As AI continuous its journey to maturity in Nigeria, the law should be the leader, driver and navigator rather than the passenger sitting in the backseat trying to catch up and react to the journey. As the driver, the law should set the overall direction and establish clear guidelines and regulations to ensure responsible AI innovation. At the same time, as the navigator, the law should provide a flexible and adaptive framework that allows for innovation and growth while addressing emerging issues and concerns.

    In all, the law should not be used to slow down or stifle innovation but to strike a balance between innovation and responsibility, ensuring that AI development , deployment, use and enforcement  are adaptive, ethical, transparent accountable and sustainable .

    • Dr. Obinna Kalu is the

    General Counsel and

    Company Secretary, The Sun Publishing Limited

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