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By Tarso Mesquita Machado

The Future Legal Regulation Of Artificial Intelligence In Brazil

Several Bills are being debated in the Brazilian National Congress with the objective of regulating the development and use of artificial intelligence systems. We would like to expose herein an important and recent development of these debates.

In order to guide the legislative debates, the President of the Federal Senate appointed a commission made up of reputable legal scholars, which formally presented their extensive final report in December 2022. This report also presented a substitute draft for Bills nº 5.051, of 2019, 21, of 2020, and 872, of 2021, which were already being processed.

This new draft of the Bill is still preliminary, but given the authority and reputation of the members of the commission that prepared it, we believe that it will serve as the base text for the future law. The Bill establishes general standards at national level for the development, implementation and responsible use of artificial intelligence (AI) systems in Brazil, aiming to protect fundamental rights and guarantee the implementation of safe and reliable systems.

On the one hand, the Bill seeks to establish rights for the protection of natural persons, who are already impacted on a daily basis by AI systems, from recommending content and directing Internet advertising to analyzing their eligibility for taking credit and for certain public policies. On the other hand, the Bill seeks to create predictability conditions regarding its interpretation and, ultimately, legal certainty for innovation and economic-technological development in this important technical field.

The Bill does not delve on issues related to intellectual property, such as the patentability of inventions implemented by AI or the authorship of inventions or works created by AI.

With regard to copyright, the project proposes that the automated use of works in the process of mining and processing data by an AI does not constitute an offense to copyright, provided that the activity: I – does not have the objective of simply reproducing, displaying or dissemination of the original work itself; II – the use takes place to the extent necessary for the purpose to be achieved; III – does not unjustifiably harm the copyright holders’ economic interests; and IV – does not compete with the normal exploitation of the works.

Regarding patent protection, although the bill does not address the issue, Ordinance 411/2020 of the National Institute of Industrial Property (INPI), which establishes the Guidelines for Examining patent applications for computer-implemented inventions, points out that these innovations would be patentable in Brazil. More information about these guidelines can be found here.

As for inventions and creations generated by AI, the INPI’s Attorney General recently stated that an AI system cannot be considered the inventor of a patent application, while, in Brazil, it is known that currently the author of any copyrighted work must be a natural person.

If you are interested in obtaining more details on the topic or have specific questions, please do not hesitate to contact us at mail@kasznarleonardos.com.

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