Introduction: Discourses at the Interface of Technology and Law
Last week, an exciting discussion unfolded with a doctoral student at the University of Hanover on the topic of blockchain law. The core question was whether the legal challenges posed by blockchain and AI are truly so novel that existing laws cannot adequately address them. This question resurfaced recently during an "Ask me anything" session at the People and Cultures Festival, where similar issues concerning artificial intelligence (AI) were raised.
Blockchain: Traditional Law Meets Modern Technology
The fascination with technologies like blockchain is undeniable, yet it often comes with uncertainty. Many wonder if our current legal system can effectively handle these innovations. There's a common impression that we are venturing into completely uncharted legal territory. But is this perception accurate?
Let's examine blockchain. This technology involves critical aspects such as contract security, transparency, and the traceability of transactions. These are not new concepts for lawyers; rather, they form the very foundation of contract law. While the challenges presented by blockchain technology, for instance in the context of MiCA regulation (Markets in Crypto-Assets), are specific, they are far from insurmountable. They necessitate meticulous legal work but do not demand fundamentally new laws.
By broadening our perspective, it becomes clear that many emerging questions can be answered using the general principles of the German Civil Code (BGB-AT). Furthermore, areas such as copyright law, personality rights, trademark law, and competition law already offer a comprehensive regulatory framework. When interpreted and applied correctly, these existing rules can be transferred to new technological circumstances. Future case law will likely focus on the specific application and interpretation of these laws, rather than creating entirely new legal issues.
In practice, this means legal professionals must engage with questions related to new technologies, but these can be resolved using traditional legal methods. It involves defining the role of the messenger, the authorized representative, or the submission of declarations of intent within smart contracts. It also means clarifying when and under what circumstances performance is rendered. Such questions require an in-depth examination of legal principles, which, though perhaps not routinely applied in the daily work of many lawyers, are nonetheless fundamental to the proper application of the law.
Artificial Intelligence: Existing Law in a New Light
In the realm of artificial intelligence (AI), questions frequently arise that initially appear novel and complex. One such question concerns exploitation rights: Can works generated by AI establish such rights? And to what extent can AI providers be held liable for infringing the rights of third parties?
A widespread assumption is that the rapid evolution of AI technology necessitates legislative changes to clarify these issues. However, a closer look reveals that the German legal system – especially its "older" laws – demonstrates remarkable flexibility and adaptability to new technological developments.
Consider exploitation rights, which are enshrined in the Copyright Act to protect authors' economic interests. Whether AI-generated content can establish such rights depends on its classification as a "work" under copyright law. This classification, under current law, hinges on a discernible creative achievement, which presupposes human action. Therefore, as things stand, AI itself cannot establish its own exploitation rights. Nevertheless, the human creator who utilizes AI could potentially assert exploitation rights to the results, provided their own creative contribution is identifiable. For more details on this, see our article on legally compliant publication of AI images.
The question of AI providers' liability for legal infringements is more intricate, but here too, existing laws provide a robust framework. German law encompasses various liability concepts, including direct liability, indirect liability, and fault-based liability. These concepts can be applied to scenarios where AI systems infringe on third-party rights. Consequently, the challenge lies not in formulating new liability rules, but in applying and, if necessary, developing existing rules to fit the specific circumstances. For insights into related topics, consider our discussion on the New EU Product Liability Directive 2023.
The real challenge is not to legislate anew, but to work with the existing legal framework in a scientifically sound manner. German laws often prove highly adaptable to new technical developments, provided we are prepared to undertake this adaptation. This demands a thorough understanding of the subject matter and precise legal reasoning.
Therefore, it is not the legislation that lags, but rather the interpretation and application of laws, which must be executed with diligence and expertise. In this regard, "old" laws can and should serve as a solid foundation for ensuring legal certainty and justice in the age of AI.
Legal Precision Work: The Application of Existing Laws
Naturally, applying existing laws to new technologies involves room for interpretation and uncertainty. Yet, this is precisely where the art of jurisprudence lies: in the precise subsumption and interpretation of current laws to apply them to novel situations. This calls for meticulous legal work, which—as experience shows—can be challenging even for many lawyers, let alone legal laymen.
Conclusion: Proven Laws as a Basis for Technological Innovation
The solution to emerging legal challenges in technology is not to reflexively demand new laws. Instead, it involves intelligently and carefully applying existing laws to new technologies. This is a matter of legal craftsmanship, a principle confirmed repeatedly over 25 years of experience as an entrepreneur and lawyer.
In summary, the legal issues arising from blockchain and AI can certainly be addressed within the existing legal framework. What is needed is not extensive new legislation, but rather a well-founded legal examination of these technologies and their precise application.