Data-Driven Economy and Artificial Intelligence: Emerging Competition Law Issues

Abstract

Artificial Intelligence (AI), although it is not an entirely new phenomenon, has been developing more intensively relatively recently. AI is based on artificial neural networks (ANNs), which are modelled upon the architecture of human brains. Beside several ethical issues, such as whether “artificial brains” can and should be created in the first place, a number of legal questions emerge. One of the most urgent issues to be analyzed as regards AI is whether there is a need for a regulatory intervention. It is probably fair to say that AI is currently in a shape of a cocoon. In an academic legal research AI is still pretty much “terra incognita”. However, although there is no clear and visible AI market failure (yet), it may be worthwhile analyzing what the status quo of the markets in the digital economy is with a perspective view of the AI markets of the future. After all, AI is featured by the systems that can autonomously learn and improve (machine learning). Such self-learning capability of the machines is based on the technique called “deep learning”. The latter is fed by data. In this regard, it may well be that the purpose of current data collection and processing is related to conquering future markets for AI, so that a “snapshot” analysis of the issues related to current data-driven markets would show only one side of the coin of the market dynamics. The latter insight has to be borne in mind by both regulators and competition authorities. It is in this context that it has to be analyzed whether or what type of protection is needed for (non-personal) data and what is the optimal scope of protection of “deep learning” algorithms. After all, a current “open source” strategy of the biggest market players may be attractive from a short-run perspective, but may possibly raise competition law concerns in a long run. If current processes in the markets feature competition for developing future systems of AI, the question of (setting) standards and interoperability may turn out to be mostly important for future competition.