Arbitrating and mediating generative AI works present a unique set of legal and ethical challenges due to the unprecedented nature of AI-generated content and the evolving legal landscape.

Here are some of the key challenges in this context:

1. Authorship and Ownership:Determining authorship and ownership of AI-generated works can be complex. Traditional copyright frameworks may struggle to attribute ownership to humans when AI algorithms play a significant role in creating the content. This challenge can lead to disputes over who holds the rights to AI-generated works, affecting potential arbitration or mediation outcomes.

2. Attribution and Plagiarism:AI can generate content that closely resembles existing works, raising concerns about plagiarism and originality. In arbitration or mediation, distinguishing between genuine infringement and unintentional AI-generated similarities requires expertise in both AI technology and intellectual property law.

3. Accountability and Liability:Assigning responsibility in cases of AI-generated content that may infringe on copyrights, defame individuals, or violate laws becomes intricate. Deciding whether creators, developers, or users are liable for the content's consequences requires a comprehensive understanding of AI's role in the creative process.

4. Lack of Precedent and Legal Frameworks:The rapidly evolving field of AI lacks established legal precedent and frameworks. Arbitrators and mediators must grapple with the absence of clear guidelines for resolving disputes related to AI-generated works. Crafting decisions that balance technological advancement with established legal norms is challenging.

5. Ethical Considerations:The use of AI in content creation raises ethical questions about transparency, consent, and the potential for manipulation. Addressing the ethical implications of AI-generated content in arbitration or mediation proceedings requires a nuanced understanding of AI's impact on society and culture.

6. Expertise and Resources:Effective arbitration and mediation require professionals well-versed in both AI technology and the relevant legal domains. Finding experts with the necessary interdisciplinary knowledge can be challenging and may impact the quality and accuracy of dispute resolution.

7. Evolving Nature of AI:Generative AI technologies are rapidly advancing, leading to unpredictable changes in the capabilities and behaviors of AI systems. This dynamic nature adds complexity to arbitration or mediation, as outcomes may need to consider future developments in AI that were unforeseeable at the time of the dispute.

8. International and Jurisdictional Challenges:The global nature of the internet and AI-generated content means disputes can involve parties from different jurisdictions. Navigating varying intellectual property laws, data privacy regulations, and cultural norms requires an understanding of international legal complexities.

To address these challenges, arbitrators and mediators need to stay informed about AI advancements, legal precedents, and evolving ethical considerations. Collaborations between legal experts, AI researchers, ethicists, and policymakers are essential for developing frameworks that balance technological innovation, legal principles, and ethical standards. Additionally, proactive efforts to create standardized agreements and guidelines for disputes involving AI-generated works can help streamline resolution processes and promote consistency in outcomes.

ADR is always a good option to consider to free up court resources, so I applaud your question. The initial hurdle is to figure out how to get future parties to many of these generative AI dispute on an binding mediation or arbitration clause. For generative AI created via online or app platforms, the T&A of these platforms should start adopting a template arbitration clause. There are then a number of new questions that arise like choice of law and choice of forum.

And what about those generative AI cases that do not fall under a platform‘s template arbitration clause? How would they get to arbitration? So a good initial question here is where do most of these generative AI cases arise, and is it an environment suitable for arbitration?

Have a nice day.

The process of arbitrating and mediating generative AI works involves the careful navigation of complex legal and ethical considerations. The emergence of artificial intelligence (AI) has brought forth several issues pertaining to ownership, copyright, and responsibility, mostly stemming from the blurred boundary between the roles of creator and user. The establishment of content ownership and culpability in situations of infringement or injury is contingent upon the utmost importance of clarity. The process of formulating contractual agreements that delineate entitlements and obligations is similarly intricate. Ethical considerations comprise the need of maintaining openness about the use of artificial intelligence (AI), the need to remove biases that may arise in the material created by AI systems, the recognition of AI's role in the creative process, and the protection of user data privacy. It is essential to establish frameworks that can apportion legal accountability and effectively handle the ethical issues associated with the matter at hand. The use of arbitration and mediation may be beneficial in facilitating the settlement of disputes. However, it is crucial to establish thorough legal and ethical principles in order to efficiently address concerns related to AI-generated material.

The concept pertains to addressing legal and ethical hurdles concerning arbitration and mediation of generative AI creations. The focus is on alleviating court backlog and cultivating a panel of proficient judges specialized in this field. The geographical jurisdiction is less relevant. This approach aims to streamline the resolution of conflicts involving AI-generated content through alternative methods, fostering efficient case management and expertise cultivation within the domain.

The following two recent developments in Canada are perhaps notewothy:

Pursuant to a Practice Direction of the Manitoba Court of King’s Bench dated June 23, 2023, “when artificial intelligence has been used in the preparation of materials filed with the court, the materials must indicate how artificial intelligence was used.”

The Supreme Court of Yukon also has a Practice Direction dated June 26, 2023 whereby counsel and self represented litigants who

rely on “artificial intelligence (such as ChatGPT or any other artificial intelligence platform) for their legal research or submissions in any

mattter and in any form before the Court …. must advise the Court of the tool used and for what purpose”.