Blockchain and AI in law – new territory or proven terrain?

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 have the impression that we are moving into completely uncharted territory. But is that really the case?

Let’s take a 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, for example in the area of MiCA regulation (Markets in Crypto-Assets), are specific but not insurmountable. They require careful legal work, but no fundamentally new laws.

If we broaden our perspective, it becomes clear that many of the questions that arise can be answered using the general principles of the German Civil Code (BGB-AT). Copyright law, personality rights, trademark law and competition law also already provide a comprehensive set of rules that can be transferred to the new circumstances if interpreted and applied correctly. Future case law is 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. It is a matter of defining the role of the messenger, the authorized representative or the submission of declarations of intent in the context of smart contracts and clarifying when and under what circumstances there is performance. These and similar questions require an in-depth examination of legal principles which, although not regularly applied in the day-to-day work of many lawyers, nevertheless form the basis for the proper application of the law.

Translated with DeepL.com (free version)

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 changes to the law in order to clarify such issues. However, a closer look shows 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 establish such rights depends on whether it can be regarded as a “work” within the meaning of copyright law. This depends on the creative achievement, which, according to the current legal situation, requires human action. Accordingly, as things stand today, AI as a tool cannot establish its own exploitation rights. However, the human creator who uses the AI could certainly assert exploitation rights to the results, provided that their own creative achievement is recognizable.

The question of the liability of AI providers for legal infringements is more complicated, but here too the existing laws provide a framework. German law recognizes various liability concepts, ranging from direct liability and indirect liability to 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 way. German laws are often very good at adapting to new technical developments – provided we are prepared to make this adaptation. This requires a thorough examination of the subject matter and precise legal reasoning.

It is therefore not the legislation that is lagging behind, but 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 age of AI.

Translated with DeepL.com (free version)

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 therein lies the art of jurisprudence: 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, let alone legal laymen.

Conclusion: Proven laws as a basis for technological innovation

The solution is not to reflexively call for new laws, but to apply existing laws intelligently and carefully to new technologies. This 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. What is needed is not large-scale new legislation, but a well-founded legal examination of the technologies and their precise application

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.