Interview: Professor Dr Thomas Klindt, Noerr LLP

Professor Dr Thomas Klindt, a partner in the Munich office of Noerr LLP, answers some questions on Robotics and Artificial Intelligence in Germany.

How would you summarise the current position on Robotics and Artificial Intelligence in Germany?

From what I can see, German business is mainly enthusiastic about Robotics and Artificial Intelligence. Germany is traditionally a country with plenty of small and medium sized companies and hidden champions which are mainly owner-managed. They see Robotics and Artificial Intelligence as an opportunity and accordingly support further research and innovation . As Germany is also known as centre for science, it will not be a big surprise that research on further technical possibilities in Universities is an important focus. As a consequence, patents and know how protection are of key concern. If you ask me which industries will be most influenced by Robotics and Artificial Intelligence, I would predict that this will be automotive and medical devices in Germany.

Is the German legal system coping with the fast moving robotics sector?

The fast moving robotics sector causes some challenges for the German legal system - as well as for any other legal system in the world. There are areas in which the industry and specifically legal departments see law as a brake, maybe even a deal-breaker on digitalization and further development of robotics. This is mainly the case in regard to data protection, IT security and IP/copyright law as a study Noerr LLP carried out together with the BDI (Federation of German Industries) showed. Regarding product liability issues, the current legal system in the EU will be an appropriate framework capable of producing reasonable results at least for the near future.

What plans do the German administration have for dealing with the future developments in this sector?

The German government and legislator seems to be quite aware of the issues and potential obstacles imposed on the development of robotics by law. The German government has adopted a “Digital Agenda” which defines the milestones towards a digital industry in Germany. Some of these milestones have already been addressed such as the comprehensive expansion of high-performance broadband networks and an IT Security Act enacting the concept of “security by design”. The government launched a think tank on the digitalization of the industry (“Plattform Indutrie 4.0”). Being an expert appointed to the product liability chapter of the Plattform Industrie 4.0, I can confirm that potential need for action is continuously monitored based on the technical developments in this sector.

What are the challenges for the general principles of law in particular the principles of personal ownership and liability?

As stated before, our current product liability law provides an appropriate basis for further development by judges taking into account potential social changes as well as new technologies. If, however, completely autonomous systems emerge, the current principles of liability will need to be adapted. The principle of personal liability always needs an act based on a conscious decision of a human being. We can find such decision as long as autonomous systems merely carry out algorithms made by human beings – no matter how complex they are. We cannot find such human decision anymore if autonomous systems will learn by themselves. The question will arise how liability can be assessed in these cases. Some suggest the solution is to create an “ePerson” in order to have a legal entity. Such an ePerson won’t, however, have any assets and therefore won’t be a suitable addressee for potential claims on damages. An appropriate approach might be found by looking at the liability of animal owners.

What is the current state of regulation in the sector?

Currently, many industry players seem to manage the legal problems of robotics with contracts. Especially protection of secrets, outsourcing and cloud computing, development cooperation venues and insurance issues are fields which might be best dealt with on a contract basis. As a matter of fact, development of law by judges takes time. Legal certainty could be achieved more swiftly with a voluntary self-regulation by the industries. The approach of such self-regulation could form the basis of a later legislative act.

How does the German position relate to the wider EU and US positions?

According to the survey, Noerr LLP and the BDI carried out, the legal framework is seen as less restrictive towards robotics and digitalization on the European level. There is still a need to catch up on protection of personal data and cloud computing. The industry would prefer a regulatory solution on a European level as common requirements enhance distribution possibilities throughout the single market and ensure fairness of competition. European product compliance law, for example, shows the effectiveness of such an approach and also proves that technical standards can be successfully integrated in a legal framework. An important step towards harmonization regarding digitalization has been taken with the general data protection regulation which makes a uniform data protection law applicable across the entire EU. This does not only apply to companies based in the EU but to all companies which offer goods or services within the EU.

The rest of the world seems to see only minor obstacles created by law. This might be explained by the fact that there is less regulation in these regions than in Europe. This result has to be seen in the context of Anglo-American disclosure requirements in case of civil proceedings. Internationally active companies should be prepared to provide data and documentation via digital procedures.