Rafael Dean Brown (2021)
Information & Communications Technology Law,
30:2, 208-234.
DOI: 10.1080/13600834.2020.1861714
Abstract
This paper adds to the discussion on the legal personhood of artificial intelligence by focusing on one area not covered by previous works on the subject – ownership of property. The author discusses the nexus between property ownership and legal personhood. The paper explains the prevailing misconceptions about the requirements of rights or duties in legal personhood, and discusses the potential for conferring rights or imposing obligations on weak and strong AI. While scholars have discussed AI owning real property and copyright, there has been limited discussion on the nexus of AI property ownership and legal personhood. The paper discusses the right to own property and the obligations of property ownership in nonhumans, and applying it to AI. The paper concludes that the law may grant property ownership and legal personhood to weak AI, but not to strong AI.
(cut)
Persona ficta and juristic person
The concepts of persona ficta and juristic person, as distinct from a natural person, trace its origins to early attempts at giving legal rights to a group of men acting in concert. While the concept of persona ficta has its roots from Roman law, ecclesiastical lawyers expanded upon it during the Middle Ages. Savigny is now credited for bringing the concept into modern legal thought. A persona ficta, under Roman law principles, could not exist unless under some ‘creative act’ of a legislative body – the State. According to Deiser, however, the concept of a persona ficta during the Middle Ages was insufficient to give it the full extent of rights associated with the modern concept of legal personhood, particularly, property ownership and the recovery of property, that is, without invoking the right of an individual member. It also could not receive state-granted rights, could not occupy a definite position within a community that is distinct from its separate members, and it could not sue or be sued. In other words, persona ficta has historically required the will of the individual human member for the conferral of rights.
(cut)
In other words, weak AI, regardless of whether it is supervised or unsupervised ultimately would have to rely on some sort of intervention from its human programmer to exercise property rights. If anything, weak AI is more akin to an infant requiring guardianship, more so than a river or an idol, mainly because the weak AI functions in reliance on the human programmer’s code and data. A weak AI in possession and control of property could arguably be conferred the right to own property subject to a human agent acting on its behalf as a guardian. In this way, the law could grant a weak AI legal personhood based on its exercise of property rights in the same way that the law granted legal personhood to a corporation, river, or an idol. The law would attribute the will of the human programmer to the weak AI.
The question of whether a strong AI, if it were to become a reality, should also be granted legal personhood based on its exercise of the right to own property is altogether a different inquiry. Strong AI could theoretically take actual or constructive possession of property, and therefore exercise property rights independently the way a human would, and even in more advanced ways.Footnote151 However, a strong AI’s independence and autonomy implies that it could have the ability to assert and exercise property rights beyond the control of laws and human beings. This would be problematic to our current notions of property ownership and social order.Footnote152 In this way, the fear of a strong AI with unregulated possession of property is real, and bolsters the argument in favor of human-centred and explainable AI that requires human intervention.
My summary:
The author discusses the prevailing misconceptions about the requirements of rights or duties in legal personhood. He argues that the ability to own property is not a necessary condition for legal personhood. For example, corporations and trusts are legal persons, but they cannot own property in their own name.
The author then considers the potential for conferring rights or imposing obligations on weak and strong AI. He argues that weak AI, which is capable of limited reasoning and decision-making, may be granted property ownership and legal personhood. This is because weak AI can be held responsible for its actions and can be expected to uphold the obligations of property ownership.
Strong AI, on the other hand, is capable of independent thought and action. The author argues that it is not clear whether strong AI can be held responsible for its actions or whether it can be expected to uphold the obligations of property ownership. Therefore, he concludes that the law may not grant property ownership and legal personhood to strong AI.
The author's argument is based on the assumption that legal personhood is a necessary condition for property ownership. However, there is no consensus on this assumption. Some legal scholars argue that property ownership is a sufficient condition for legal personhood, meaning that anything that can own property is a legal person.
The question of whether AI can own property is a complex one that is likely to be debated for many years to come. The article "Property ownership and the legal personhood of artificial intelligence" provides a thoughtful and nuanced discussion of this issue.
