Science Fiction and AI: Lawmaking lessons from the mythical origins of copyright law

To what extent should we regulate novel technologies based upon the mythology attributed to them through literature? This question is central to both my work and to a recent presentation by EUI Professor Nicolas Petit to the European Parliament’s Special Committee on Artificial Intelligence in the Digital Age (AIDA). This blog provides a brief analysis of the role of myth, allegory, and origin stories in lawmaking. It reveals the influence myth and fiction have on policy-makers and asks how we might make better use of these sources of knowledge.

When something is truly novel, we often lack the ability to measure it. This is particularly the case when it comes to artificial intelligence and finding the appropriate approach to its regulation. The inevitable challenges that result from incomplete information and speculation as to the capabilities of this technology create challenges for lawmakers. Policy-making, after all, is an inherently rational exercise. There must be some intelligible basis for developing policy to avoid arbitrariness and to maintain a rational connection to an intended outcome or objective.

Sci-Fi as a point of reference

In the case of artificial intelligence, we have no established arena for carrying out the rational exercise of policy-making. This, perhaps above all, is why lawmakers must rely upon speculation and imagined futures to develop policy around it. As Petit has shown, one imagined future that is often cited in the context of artificial intelligence regulation is Issac Asimov’s Three Laws of Robotics. These three laws stipulate that a robot should not harm humans; should obey humans; and should protect themselves in so far as this does not conflict with the other laws.  Being clear, logical, and memorable, these three laws have proven so influential that in 2017 the European Parliament referred to them in its Resolution on Civil Law Rules in Robotics.

The reliance on Asimov’s three laws illustrate how, when policy-makers are unable to easily understand a novel technology which requires regulation, they may find it easier to look to prophecies and stories. Science fiction is a particularly apt source of literature for this purpose because of its inherently predictive nature. Asimov’s 1975 lecture to the American Association for the Advancement of Science included comments on the prophetic nature of science fiction, where he remarked:

[Science fiction] deals with a society different from today by virtue in changes in science and technology. And therefore, it is today the only relevant form of fiction. Because the overwhelming fact of today is that things are changing because of changes involving our science and technology. No one who is alive now is going to be living in a world that is remotely like this one thirty years from now…Therefore, science fiction is important insofar as it allows prophecy to be made…

My feeling is this: the best prediction you can make is to predict the inevitable. You may think you will get very little credit for predicting the inevitable…well you’re quite wrong. Because as a matter of fact, people in general are completely unaware of the inevitable and are thoroughly astonished when you predict it, and it comes to pass.

Asimov’s thoughts on the matter are instructive. They illuminate the fact that science fiction is a type of ‘prophecy of the inevitable’. It is an attempt to imagine the future using the modalities and techniques available today. This helps us understand why this genre seems to be so influential to lawmakers.

Choosing the right story: the case of copyright law

The question, therefore, is one of degree. To what extent should we view the influence of literature and culture on policy-making legitimate or reasonable? Petit cautions that we ought to be weary of the potential for various works of literature and culture to be misinterpreted. Asimov, after all, wrote nearly 500 science fiction works, which often touched upon his three laws in different ways. They did not all view the three laws as being effective. In fact, Asimov’s work includes many instances where catastrophes or moral dilemmas resulted from the exercise of his three laws. They were as much a tool for criticism as they were a prescriptive solution.

Getting the story right is important. As tempting as it may be for policy-makers to cherry-pick trite concepts and phrases from works of literature and science fiction, the cost of blind reliance and misconstruing these works can cause more harm than merely upsetting the author’s most loyal fans. The ‘origin story’ attributed to a body of law can have powerful effects on the way it is regulated centuries into the future.

Perhaps more than any other area of the law, the power of origin stories and mythology are felt in copyright law (Drahos 2016). Much like artificial intelligence, copyright is an intangible legal subject matter. It yields no obvious material presence that makes its regulation intuitive. Several stories have developed to justify its existence, yet none of them have emerged victorious. One origin story, rooted in utilitarianism, relies on the ‘tragedy of the commons’ metaphor created by British economist William Forster Lloyd. Using the story of unregulated grazing on common land, the metaphor captures the danger presented by unowned goods that, in the absence of regulation, will be over utilised and overexploited. This story has led to a justification for copyright law as an incentive and reward structure to encourage access and dissemination of works for the public benefit.

Yet another origin story, popular in the European tradition, is the personality theory for copyright. Touted by enlightenment philosophers Immanuel Kant and Friedrich Hegel, the personality theory views creative and artistic works as ‘extensions of the author’s personality’, which acquire the status of property by manifesting an individual’s ‘will upon the world’. Under this origin story, creative works are said to ‘bear the stamp’ of their authors. This appeal to natural rights offers a very personal and individualistic role for copyright law.

These origin stories do more than just uncover the legal or philosophical traditions of the cultures in which the law developed. In the end, they enable and authorise distinct approaches to the law. They determine the normative realities in which the law will later operate and determine the scope of potential debate and policy outcomes. On this point, Majid Yar (2008) has observed:

[M]yths serve to naturalize what are in fact historically, culturally and politically contingencies and represent them as something simply given in natura rerum, in the nature of things and, as such enduring and inviolable. (p. 605)

In other words, myths, metaphors, and stories frame future debates. The origin stories of copyright law have led to deep disagreements surrounding the scope of protection and the public interest. There is little reason to think that the same should not be true for artificial intelligence.

Proceed with caution

The role of origin stories and myth should provide some caution here. There is a real danger in subscribing to mythology or allegory through science fiction which may later hinder the appropriate legal response to artificial intelligence. This is particularly the case for Asimov, whose works can be complex, contextual, and were written for purposes other than assisting lawmakers with policy-making. We ought to be wary of policy-making which both misunderstands the nature and capabilities of the technology to be regulated, and the literature upon which it adopts its normative influence for regulation.

What lessons can be learned then for policy-makers seeking to regulate artificial intelligence? For one, get your origin stories right. The value of mythology to policy-making exists only to the extent that its rationale remains consistent. Secondly, consider more than one story or myth. Perhaps the only saving grace for copyright’s origin stories is that many have developed over the centuries. Multiple origin stories allow for debate and competing visions around the proper trajectory and rationale of the law. Overall, policy-makers are right to look to Asimov’s insights in regulating artificial intelligence, but a blind reliance on them may do more harm than good. For the European Parliament, it may be time to dig deeper. The goods news is that science fiction fans in the academic community are ready to help.

Anthony Rosborough is a first year Law researcher from Canada. Before entering academia, he practiced for several years in a commercial law firm in the intellectual property area. He completed his LLM at the University of Glasgow and JD at the Schulich School of Law at Dalhousie University (Canada), where he is currently a Lecturer. His research focuses on the relationship between intellectual property laws, human agency, and how we might take better control and authorship over new technologies.