Introduction: Discourses at the interface of technology and law
Last week, there was an exciting discussion with a doctoral student at the University of Hanover on the topic of blockchain law. The question was: Are the legal challenges associated with blockchain and AI really so new that they cannot be dealt with using existing laws? This question came up again yesterday when I came across similar problems in the field of artificial intelligence (AI) during my “Ask me anything” session at the People and Cultures Festival.
Blockchain: traditional law meets modern technology
The fascination with technologies such as blockchain is great – and with it the uncertainty as to whether our current legal system can cope with these innovations. We often get the impression that we are moving in completely unfamiliar territory. But is that really the case? Let’s look at blockchain: this is about issues such as contract security, transparency and the traceability of transactions. These aspects are by no means new to lawyers. Rather, they are the cornerstones on which contract law has always been based. The challenges posed by blockchain technology, such as in the area of MiCA (Markets in Crypto-Assets) regulation, are specific but not insurmountable. They require careful legal work, but no fundamentally new laws. If one broadens the perspective, it becomes apparent that many of the questions that arise can be answered with the general principles of the BGB-AT (General Part of the German Civil Code). Copyright law, personality rights, trademark law and competition law also already provide a comprehensive set of rules that can be applied to the new circumstances, provided they are interpreted and applied correctly. Future rulings are likely to focus primarily on the specific application and interpretation of these existing laws, without the need to create fundamentally new legal issues. In practice, this means that lawyers have to deal with issues that are related to new technologies but can be resolved using traditional legal methods. The aim is to define the roles of messenger, proxy or the submission of declarations of intent in the context of smart contracts and to clarify when and under what circumstances there is fulfillment. These and similar questions require an in-depth study of legal principles that may not be regularly applied in the day-to-day business of many lawyers, but nevertheless form the basis for the proper application of the law.
Artificial intelligence: existing law in a new light
In the field of artificial intelligence (AI), questions arise time and again that appear new and complex at first glance. One of these questions concerns exploitation rights: Can works created by AI establish exploitation rights? And to what extent can AI providers be held responsible for infringing the rights of third parties? It is a widespread assumption that the rapid development of AI technology requires legislative amendments to clarify such issues. However, a closer look reveals that the German legal system – especially the “old” laws – is remarkably flexible and adaptable to new technological developments. Let’s take the right of exploitation: it is enshrined in the Copyright Act and protects the economic interests of the authors of works. The question of whether AI-generated content can give rise to such rights depends on whether it can be regarded as a “work” within the meaning of copyright law. What matters here is the creative achievement, which, according to the current legal situation, requires human activity. Accordingly, AI as a tool cannot – as things stand today – establish its own exploitation rights. However, the human creator who uses the AI could certainly assert exploitation rights to the results, provided that his own creative achievement is recognizable. The question of the liability of AI providers for legal infringements is more complicated, but here too, existing laws provide a framework. German law recognizes various liability concepts, ranging from direct liability to indirect liability and fault-based liability. These concepts can be applied to situations in which AI systems infringe the rights of third parties. It is therefore not a question of creating new liability rules, but of applying the existing rules to the respective circumstances and developing them further if necessary. The challenge is not to create new laws, but to work with what already exists in a scientifically sound manner. German laws are often very good at adapting to new technical developments – provided we are prepared to make this adaptation. This requires an in-depth examination of the subject matter and precise legal argumentation. It is therefore not the legislation that is lagging behind, but rather the interpretation and application of the laws, which must be carried out with care and expertise. In this sense, the “old” laws can and should serve as a solid basis for ensuring legal certainty and justice in the era of AI.
Legal precision work: the application of existing laws
Of course, there is room for interpretation and uncertainty when applying these laws to new technologies. But this is precisely where the art of jurisprudence lies: the clean subsumption and interpretation of existing laws in order to apply them to new situations. This requires precise legal work, which – as experience shows – is a challenge even for many lawyers, not to mention legal laymen. In this context, it is crucial that lawyers understand not only the letter of the law, but also its spirit and the principles behind it. This makes it possible to effectively apply laws that were drafted in a time before the digital revolution to modern technologies such as blockchain and AI. The aim is to grasp the underlying legal principles and apply them to today’s technologically advanced circumstances. This requires not only legal expertise, but also a deep understanding of the technologies themselves and their impact on society and the economy. An interdisciplinary approach that combines legal, technical and ethical aspects is essential in order to arrive at balanced and sustainable solutions.
Conclusion: Proven laws as a foundation for technological innovations
The solution is not to reflexively call for new laws, but to apply the existing laws intelligently and carefully to new technologies. It is a question of legal craftsmanship that has been confirmed time and again in 25 years of experience as an entrepreneur and lawyer. In summary, it can be said that the legal issues raised by blockchain and AI can certainly be dealt with using the existing legal framework. There is no need for large-scale new legislation, but rather a well-founded legal examination of the technologies and precise application
