The data economy
Data exploitation offers a considerable field of economic opportunities and developments, favoring practices such as data mining or data marketing; They artificial intelligence module vendors they understood this and implemented particularly innovative and protective strategies for their algorithms.
The issue of data management and ownership is therefore central to an entire ecosystem of players specialized in this area. Beyond the specifics of personal data and the difficult GDPR compliance for the “suppliers” of Artificial Intelligence modules, the data are protean and also concern areas other than personal data: industrial, technical data, etc.
Many actors gravitate to this ecosystem:
- The AI managers in charge of the design, programming, management, maintenance and security of the module and who can determine the conditions of use (for a sector of activity, an application domain…) ;
- Subcontractors who are called by managers to perform this or that service on the module environment;
- Data Contributors who are contracted to generate, produce or assemble data that will be used to “feed” the form;
- The contractual partners whose role may vary (ranging from simple use of the form to the transmission of a database to be processed, etc.);
- Data intermediaries who often seek to add value to data collected from particular customers (individuals).
This constellation of actors requires to provide clear, precise and transparent contractual relationships, the objective is in particular to be able to distribute the obligations and responsibilities of each of the parties in an area that a priori is particularly ill-defined.
Agreements relating to the provision or sharing of data
This may be a contract relating to the transfer, access, authorization to access, share or exploit data. Therefore, the data in question must have been collected lawfully and must be transferable/accessible/usable according to the applicable regulatory framework. While the personal data rules in the GDPR remain particularly detailed (consent, legitimate interest, purpose, security, etc.), this should not hide the fact that other sets of rules (confidentiality, intellectual property, etc.) remain applicable for other data types.
The legal and/or regulatory compliance clause is therefore an essential element for this type of contract. Another clause is to be foreseen regarding the fate reserved for the property of the result of the artificial intelligence module. Often, the supplier of the AI module claims co-ownership of the result under the pretext that the data thus generated is “part” of the module and therefore cannot be identified.
In any case, the conditions relating to this provision or sharing of data must be specified (e.g. for what purpose, what duration, what security measures, what format, etc.). Transparency is an element that can be fundamental. Indeed, it will probably be necessary to announce, if you are in contact with private individuals, that the application uses an artificial intelligence module.
Finally, the confidentiality of the algorithm but also the conditions of its eventual verifiability could constitute essential clauses which it will probably be appropriate to integrate and/or negotiate.
Data Services Agreements
Various services can be linked to the data used within the scope of an AI module such as data collection and archiving, data analysis, their organization, sorting, presentation, combining or even their deletion. These services must be carried out under the control of the person in charge of the AI module (or also of his contractual partner depending on whether the latter provides the data being processed himself); must not exceed the intended purposes for the data.
Furthermore, the ownership of the result of the service performed must be able to be transferred in full and in full to the Module Manager. The various contracts often interact with each other. Some need to be supported. It is understood that the submerged part of the contractual iceberg in terms of Artificial Intelligence is vast and any project that aims to use this module must take this aspect into account or risk sinking…
Eric A. Capriolilawyer, doctor of law, member of the French delegation to the United Nations
The opinions of the experts are published under the full responsibility of their authors and do not commit the editors in any way.
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