AI unfair competition: Why Kenya needs to adopt protectionist policy 

AI may also create jurisdictional challenges especially where the AI solution is sourced from another jurisdiction.

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As Kenya encourages liberalisation of trade to spur on fair competition, the rise of artificial intelligence (AI) to cause unfair competition against established businesses and AI solutions.

Competition leads to better consumer welfare as businesses have to constantly improve quality, innovate, invest in research and development and lower prices.

The unfair competition entails dishonest and fraudulent trade practices bound to harm another person’s business.

With the increased usage of AI solutions, too much competition between AI and established businesses may be counterproductive. It may be harmful to businesses. How does a business compete effectively against AI solutions and still survive?

Some sort of protectionist legislation should be made in relevant sectors because too much competition may lead to closure of businesses and unemployment, which is not good for the economy in the long run.

Global legislation on AI is an emerging law trend, but there are a lot of grey areas. One grey area is how to have protectionist legislation in the wake of harmful competition created by AI. It is is a dicey situation because the general legal environment encourages liberalisation and fair competition.

One of the largest challenges in regulating AI is the fact that most laws apply to either natural or legal persons. That is, individuals or body corporates. This is why it has been difficult to apply laws such as intellectual property rights to AI.

AI incidences of unfair competition including breach of intellectual property rights and trade secrets are already happening, for example where AI creates new music out of sampled beats without recognition of the author’s rights. AI may create market dominance positions which could lead to unfair competition.

The current legislation in Kenya does not address AI-generated unfair competition. Kenya lacks a stand alone legislation on AI which may be necessary in protecting consumers and businesses from the harmful effects of AI.

Some reprieve may be found in some laws. Unfair competition, whether as a result of AI or otherwise, will still be illegal. Intellectual property rights and data protection laws protect businesses from unfair competition even the same is generated by AI.

However, enforcement of the provisions remains challenging due to the fact that AI solutions are not recognised as persons. The only reprieve one has is as against the individual or person who owns the AI.

AI may also create jurisdictional challenges especially where the AI solution is sourced from another jurisdiction. The cyber world has no boundaries and so it is difficult to enforce against an offender.

I believe that where the owner of the AI can be clearly identified and the damage caused by the AI solution is clearly identified then it is possible to file a civil lawsuit to stop the usage of such AI.

In such a case then, an aggrieved person would file a lawsuit against a company or individual that owns the offending AI solution, setting out a clear injury caused to him.

For example, where the AI has infringed on a trademark. He may then file a trademark infringement suit in the normal manner.

Ms Mputhia is founder of C Mputhia Advocates | [email protected]

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