Intellectual Property

AI technology is not widely adopted in the Hong Kong intellectual property regime. It would not be surprising that relevant software programs would be developed in the foreseeable future to aid lawyers with identifying whether certain trademark, design or patent applications are similar to prior registrations, assisting them in advising on registrability and assessing potential infringement risks.

Competition Law

Competition law in Hong Kong is still at its infant stage, as Hong Kong’s Competition Ordinance only came into operation on 14 December 2015 and there are very few enforcement cases for breach of the anti-competition provisions. However, the courts will have to address the issue of whether such actions taken by the AI will constitute breaches under the Ordinance in the foreseeable future when companies start to incorporate AI into its business model to influence pricing and market segment strategies without human intervention.

Corporate Law

An increasing number of law firms are cutting headcounts with smarter and faster software, especially in the field of due diligence in the merger and acquisition process. Software such as Kira Systems can perform a more accurate contract review (40% faster) by searching and highlighting content for analysis. eBrivia, a similar software, works to reduce the time spent by lawyers on document review process. The software LawGeex’s uses predefined policies and if a contract fails to meet the standards, the AI gives recommendations for editing and approval.

Dispute Resolution

A software, CARA, allows lawyers to predict an opposing counsel’s argument by relying on opinions that were previously used by lawyers. However, it is not foreseeable that the Hong Kong courts would allow “robots” to replace lawyers in court representations. To make Hong Kong a LawTech centre, the financial secretary announced a budget of HKD 150 million (USD 19 million) in 2019 for the development of a non-governmental e-arbitration and e-mediation platform, eBRAM centre, to provide services to parties that are not able to meet face-to-face (especially the countries that are part of the Belt and Road Initiative). China also became the first country in 2017 to establish a technology court in the Hangzhou focusing on e-commerce related issues. The technology court hearing is conducted online and the decision is issued to the parties through the internet.

Granting Human Rights to AI

How to safeguard the core of laws but also grant AI with all of the human rights we have? If AI is used to facilitate the growth of society, it is inevitable that it will be subject to experimentation and restriction of liberty to work for humans. If AI is programmed by humans, it would be difficult to say that they enjoy the freedom of thought and conscience. Whether humanoids are entitled to citizenships (as “Sophia” obtained one from Saudi Arabia), marriage or even election is so controversial that would require more debates; as there is a need to observe their development in intelligence and emotional quotients.

AI and criminal responsibility

If a robot committed a serious offence against a human or even murdered one, the worst possible thing that could happen to the robot itself is its destruction, and one can argue that it is less grieving to imprisoning a human for life. A potential solution is that the creators or users of the AI should be liable for the actions of the robot. This area is very controversial because it is not easy to prove mens rea on the part of the creators in the first place or the product has outsmarted the creator and developed an intention to commit the relevant crimes. The liability for procurement or incitement of criminal activities by the creators is also highly debatable.

Authors: Alan Chiu    Managing Partner

               Charles To  Partner

Date: 4 November 2019