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This document contains a description of legal issues in robotics together with a set of recommendations and some elements for a roadmap to overcome any problems we identified. The document is the result of one of the first transnational dialogues between the law community and the robotics community. It is meant to stimulate a debate on this topic. It constitutes a proposal for a green paper on legal issues in robotics. This report can also be taken as a guidebook for robotics developers to understand the basics of legal issues in robotics as well as for lawyers as a reference to matters that concern robotics and its development in Europe. The document describes the methodology used to analyse legal issues and explains the advantage of choosing a top down approach, starting from existing laws. We provide a set of definition and some elements to frame the context before analysing for each domain of law, what the issues that hinder the development of robotics in Europe are. We propose for each of the domains analysed a set of solution and roadmap elements. We propose some further investigations on IPR, labour law and non-contractual liability. After explaining the concept of electronic personhood, we also suggest some further investigation in order to study how this concept could be implemented. In addition to the domain dependant suggestions, we also propose more generic strategies like harmonizing European legislation in order to facilitate the emergence of robotics in Europe. We also support the idea of keeping a top down approach when analysing legal issues in order to address the widest spectrum of robotics applications. In order to increase the possibilities to change the current legal system for the better, we also support the idea to make links between robotics and other technological domains and avoid considering robotics as a unique, distinctive and separate technology.
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euRobotics
The European Robotics Coordination Action
Grant Agreement Number: 248552
01.01.2010 – 31.12.2012
Instrument: Coordination and Support Action (CSA)
Suggestion for a green paper on legal
issues in robotics
Co n t r i b u t i o n t o D e l i v e r a b l e D 3 . 2 . 1 o n E L S i s s u e s i n r o b o t i c s
Authors
Christophe Leroux, Roberto Labruto, Chiara Boscarato, Franco Caroleo, Jan-Philipp
Günther, Severin Löffler, Florian Münch, Susanne Beck, Elisa May, Corinne Hueber-
Saintot, Madeleine de Cock Buning, Lucky Belder, Roeland de Bruin, Andrea
Bonarini, Matteo Matteucci, Pericle Salvini, Burkhard Schafer, Amedeo
Santosuosso, Eric Hilgendorf,
Editors
Christophe Leroux, Roberto Labruto
Lead contractor for this deliverable:
CEA LIST
ALENIA AERMACCHI
Due date of deliverable: December 31, 2012
Actual submission date: December 31, 2012
Dissemination level: Public
Revision: 1.0
euRobotics Contribution to Deliverable D3.2.1 on ELS issues in robotics Page 2 of 78
Executive summary
This document contains a description of legal issues in robotics together with a set of
recommendations and some elements for a roadmap to overcome any problems we identified. The
document is the result of one of the first transnational dialogues between the law community and the
robotics community. It is meant to stimulate a debate on this topic. It constitutes a proposal for a green
paper on legal issues in robotics.
This report can also be taken as a guide book for robotics developers to understand the basics of legal
issues in robotics as well as for lawyers as a reference to matters that concern robotics and its
development in Europe.
The document describes the methodology used to analyse legal issues and explains the advantage of
choosing a top down approach, starting from existing laws. We provide a set of definition and some
elements to frame the context before analysing for each domain of law, what the issues that hinder the
development of robotics in Europe are. We propose for each of the domains analysed a set of solution
and roadmap elements. We propose some further investigations on IPR, labour law and non-
contractual liability. After explaining the concept of electronic personhood, we also suggest some
further investigation in order to study how this concept could be implemented.
In addition to the domain dependant suggestions, we also propose more generic strategies like
harmonizing European legislation in order to facilitate the emergence of robotics in Europe.
We also support the idea of keeping a top down approach when analysing legal issues in order to
address the widest spectrum of robotics applications. In order to increase the possibilities to change
the current legal system for the better, we also support the idea to make links between robotics and
other technological domains and avoid considering robotics as a unique, distinctive and separate
technology.
euRobotics Contribution to Deliverable D3.2.1 on ELS issues in robotics Page 3 of 78
Content
1.
Introduction ....................................................................................................................................... 7
1.1.
What is the purpose of this document? ................................................................................... 7
1.2.
What is a “green paper” and a “white paper” ........................................................................... 7
1.3.
Why choosing a top down approach? ..................................................................................... 7
1.4.
What does the green paper not deal with? .............................................................................. 8
1.5.
Plan of the document ............................................................................................................... 8
2.
Framing the issue: critical aspects ................................................................................................. 10
2.1.
A matter of definition and products ........................................................................................ 10
2.2.
Autonomy for Philosophy, Engineers and Law ...................................................................... 11
2.3.
Law and legislation in Europe ................................................................................................ 13
2.4.
Robot abilities ........................................................................................................................ 14
2.4.1.
Sensors .......................................................................................................................... 15
2.4.2.
Roadmap for sensors .................................................................................................... 16
2.4.3.
Actuators ........................................................................................................................ 16
2.4.4.
Roadmap for actuators .................................................................................................. 16
2.4.5.
Computing system ......................................................................................................... 16
2.4.6.
Roadmap for computing system .................................................................................... 17
2.4.7.
Self-localization .............................................................................................................. 17
2.4.8.
Roadmap for self-localization ........................................................................................ 17
2.4.9.
Navigation ...................................................................................................................... 18
2.4.10.
Roadmap for navigation ................................................................................................ 18
2.4.11.
Physical interaction ........................................................................................................ 18
2.4.12.
Roadmap for physical interaction .................................................................................. 19
2.4.13.
Non-physical interaction ................................................................................................ 19
2.4.14.
Learning ......................................................................................................................... 20
2.4.15.
Roadmap for learning .................................................................................................... 20
3.
Robots’ market law and robots’ consumer law............................................................................... 21
3.1.
The inner circle: the Directive 2006/42 on Machinery ........................................................... 21
3.2.
The wider circle: the Directive 2001/95 on general product safety ....................................... 25
3.3.
The external circle: Directive 1999/44 on sale of consumer goods ....................................... 27
4.
Intellectual Property Rights facing to the Development of Robotics in Europe .............................. 28
4.1.
Relevance of IPR with respect to Conception of Robots and their Exploitation .................... 28
4.2.
Rules likely to be adjusted ..................................................................................................... 35
4.2.1.
Regarding the above mentioned principle related to ownership ................................... 35
4.2.2.
By contractual adjustments ........................................................................................... 36
4.3.
The limits of existing rules with regard to the development of autonomous robots .............. 37
4.3.1.
The limits facing the conditions of protection by intellectual property rights ................. 38
4.3.2.
Ownership of rights ........................................................................................................ 39
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5.
Labour law and robotics ................................................................................................................. 41
5.1.
Basis of European Labour Law ............................................................................................. 41
5.2.
Labour Law ............................................................................................................................ 42
5.3.
Labour Safety Law ................................................................................................................. 43
5.4.
Proposed roadmap for Labour law ........................................................................................ 44
5.5.
Summary for Labour law and robotics ................................................................................... 45
6.
Data Privacy Law & Robots............................................................................................................ 46
6.1.
Introduction ............................................................................................................................ 46
6.2.
Legal Sources of European Data Privacy Law ...................................................................... 46
6.3.
Basic Principles of Data Privacy ............................................................................................ 46
6.4.
Data Privacy in Research and Development ......................................................................... 47
6.5.
Data Privacy in Use and Application of Robots ..................................................................... 48
6.6.
Proposed roadmap for Data Privacy Law .............................................................................. 49
6.7.
Summary for Data Privacy Law & Robots ............................................................................. 50
7.
Criminal Law, Europe & Robots ..................................................................................................... 51
7.1.
Introduction ............................................................................................................................ 51
7.2.
Substantive law – common principles ................................................................................... 51
7.3.
Extraterritorial offenses .......................................................................................................... 52
7.4.
Proposed roadmap for Criminal Law ..................................................................................... 52
7.5.
Summary for Criminal Law, Europe & Robots ....................................................................... 52
8.
Conflicts and litigations involving robots ........................................................................................ 53
8.1.
Contractual liability................................................................................................................. 53
8.2.
Non-contractual liability ......................................................................................................... 54
8.2.1.
First case: the robot causes damage because of its manufacturing defects ................ 54
8.2.2.
Second case: the robot causes damage simply by acting or reacting with humans in an
environment. ................................................................................................................................... 55
9.
Exploration track: non-human agents and electronic personhood ................................................. 58
9.1.
Introduction ............................................................................................................................ 58
9.2.
Non-Human Agents on their way to a new status ................................................................. 58
9.3.
Software Agents .................................................................................................................... 58
9.4.
Robots ................................................................................................................................... 60
9.5.
Electronic Personhood .......................................................................................................... 60
9.6.
Artificial Humans .................................................................................................................... 62
9.7.
Summary ............................................................................................................................... 63
9.8.
Proposed roadmap for Regulation of Artificial Agents and Electronic Personhood .............. 63
9.9.
Summary for Exploration track: non-human agents and electronic personhood .................. 63
10.
Principles of robotics: a vision from common law ...................................................................... 64
11.
Conclusions, priorities and suggestions for further proceedings ............................................... 66
12.
Appendix A – Communication ................................................................................................... 67
13.
Appendix B - Bibliography ......................................................................................................... 68
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14.
Appendix C – Authors ................................................................................................................ 71
15.
Appendix D – Glossary .............................................................................................................. 72
16.
Appendix E – Experts and specialists that took part in the green paper elaboration ................ 76
17.
Appendix F – List of events and meetings organized on Legal issues in robotics .................... 78
euRobotics Contribution to Deliverable D3.2.1 on ELS issues in robotics Page 6 of 78
Illustrations
Figure 1: robots a matter of definition .................................................................................................... 11
Figure 2: the complexity of European legislation................................................................................... 14
Figure 3: Robots as product: current legislation. ................................................................................... 21
Figure 4: Procedures for the placing on the market .............................................................................. 24
Figure 5: IPR & Robots: Both object and (in future) subject of IP’s protection. .................................... 38
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1. Introduction
1.1. What is the purpose of this document?
This document constitutes a set of suggestions for a green paper on legal issues in robotics. It
describes the effort undertaken in the project euRobotics (euRobotics coordination action , 2012) on
legal issues hindering the development of robotics in Europe. The document contains
recommendations to address problems and some elements for roadmap to overcome these obstacles.
The document does not explore all legal issues in robotics. It is the result of one of the first dialog
between the law community and the robotics community. It is meant to stimulate a debate on this
topic.
euRobotics (Bischoff, Pegmann, Leroux, Labruto, & al, 2010) is a coordination action supported by the
European Commission
1
. The general objective of this coordination action is to identify obstacles
hindering the development of robotics with a specific focus on service robotics, and to propose actions
facilitating the developments of robotics activity in Europe in terms of research, development,
innovation, market or user uptake . This document represents one part of the road mapping effort
conducted in euRobotics on Ethical, Legal and Societal (ELS) issues that deter the development of
robotics in Europe. The study focused on legal issues specific to robotics. We try however to
emphasize the connections between legal issues in robotics and legal issues in other major technical
sectors of the industry in order to provide additional reason to stimulate an evolution of the current law
where necessary. We limited our study to European legislation, although we take cognisance of the
effort made in this domain outside Europe.
This document can also be taken as a guide book for robotics people to learn the basics in legal
issues in robotics, as well as for lawyers as a reference to matters that concern robotics and its
development in Europe.
In the following, sections, we describe the concept of the green paper and the methodology adopted to
identify legal issues in robotics.
1.2. What is a “green paper” and a “white paper”
This document constitutes a proposal for a “green paper” on legal issues in robotics. “Green paper” is
a term used by European Commission to define “a discussion document intended to stimulate debate
and launch a process of consultation, at European level, on a particular topic(Green paper). It may
be preparatory to a “white paper”. A White paper (EC terminology) is a “document containing
proposals for European Union action in a specific area” a document gathering some proposition to be
presented to the political instances of the EC. A white paper can be a set of recommendations to
change a legal framework for example. This document is not a green paper stricto sensu. It constitutes
a proposal for a green paper since it is not an official EC document.
The purpose of euRobotics action being rather broad - concerning Ethical Legal and Societal issues
simultaneously - limits the range of issues addressed in this proposal for a green paper. This
document does not pretend to provide a complete overview on the legal issues in robotics, nor to
provide an exhaustive list of actions to undertake. This document is the preamble to a further
document containing proposals for a “white paper”, which will be elaborated within the research project
Robolaw (www.robolaw.eu), a project also supported by the European commission under the
Framework Programme 7.
1.3. Why choosing a top down approach?
The methodology followed in the document consists in a top down approach that studies for each legal
domain the consequences on robotics. This chapter explains the reasons of this choice as well as the
global methodology chosen.
The first step of the project was to form a community of jurists, , philosophers and specialists in ethics
together with experts in robotics who were interested in the targeted topic. The list of experts and
specialists is in the appendix of this document. euRobotics organized a series of meetings in order to
1
grant agreement number 248552
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describe the objectives, make the legal and robotics communities know each other, “share” common
language, vision and objective and finally organize the work on the green paper. We paid attention to
choose experts from different countries to take into account the differences between different
jurisdictions and practices.
To define the issue, we tried in a first stage to organize the work around a set of case studies.
Studying the legal issues in robotics starting from case studies turned out to have several
weaknesses:
A bottom up approach presents the risk to forget some legal issues
Concentrating on case studies could lead to t a limited set of legal issues. The risk is to leave out
and forget important matters that pertain in fields other thn the ones chosen, and finally to show
only a limited and restricted impact of legal issues on robotics development and activities. For
example focusing on assistive robotics might highlight some major aspects but leave others out.
There is a risk of fragmentation of the problem
Considering legal issues from specific case studies (surgical robotics, autonomous transport or co-
working for example) could lead to a reduced impact of legal issues in the economy, thus limiting
the interest to change the existing legislations. For example detecting non-contractual liability
issues in assistive robotics have not the same impact has expressing these non-contractual
liability issues in service robotics as a whole.
A bottom up approach may drive to miss commonalities between robotics and other
technological disciplines.
For example leaving out to study autonomous transport would lead to miss the commonalities for
this case study with legal issues in the car industry more generlly, thus missing an opportunity to
take advantage of the dynamics of this important sector of the industry.
A bottom up approach is time consuming
There is a large number of case studies in robotics: co-working, autonomous transport, aerial,
surgical and assistive robotics, etc. Case studies are presented in detail in the Strategic research
Agenda for Robotics Source spécifiée non valide.. These case studies are heterogeneous in
legal terms: the issues are quite different in surgical robotics and in assistive robotics for example.
Analysing legal issues for each case study would need to understand whether current legislation is
in line with each specific case, in all European countries. This appeared to be too much time
consuming.
We decided therefore to choose a top down approach starting from existing legislations to analyse
their impact on individual case studies. The goal was to propose more efficient solutions, possibly
linking these issues to other economic sectors. This will emphasize the importance of the challenges
to be tackled. An illustration is for example to consider legal issues in autonomous transport as
connected to legal issues in the car industry generally, or to consider privacy issues in assistive
robotics as a particular case of privacy issues in computer applications.
It is interesting to see that the difference between this top down approach chosen in the green paper
and the bottom up approach mirrors the different approaches to legal regulation in civil law and
common law respectively. The common law based exerts favouring the bottom up approach.
1.4. What does the green paper not deal with?
This report deals with short or mid-term visions of robotics. We excluded case studies related to
futuristic visions of robotics such as post-humanism (androids). We also excluded from our study
military robotics. The analysis on ethical and societal issues is part of the report D3.2 Ethical Legal
and Societal issues in robotics, a deliverable from euRobotics project.
1.5. Plan of the document
The document contains 10 chapters.
Chapter 1 presents the context and the methodology chosen to analyse legal issues.
Chapter 2 frames the issue: we make a tour of some definitions of a robot. We then describe the
existing legal framework for legal issues in robotics in Europe. We also provide some basic conceptual
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clarification of autonomy and describe the abilities of a robot. In the next chapters we present an
analysis of the legal issues in robotics, following a top down approach analysing these issues in areas
of private law, criminal law, intellectual property law etc.
Chapter 3 focuses on market and consumer law,
Chapter 4 concentrates on Intellectual Property Rights,
The next chapter 5 concerns labour law, the following
Chapter 6 is on data privacy law.
Chapter 7 relates to criminal law.
Chapter 8 is on civil law, and presents contractual and non-contractual liability issues in robotics. In
the following
Chapter 9 we present solutions that could help solving issues that have been presented in the chaters
above. We then conclude this proposal for a green paper by summarizing the suggestions made in the
document.
The appendices contain a glossary, the list of people involved in the research for the document, the
publications made, the bibliography, the meetings organized and a visual presentation of the roadmap.
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2. Framing the issue: critical aspects
2
Robotics and law is quite a large field and any definition can be challenged for being too broad (and
elusive) or too narrow (and exclusive). Whatever the level of development of their cognitive
capabilities, robots can currently be considered as automatic machines. In this sense, it is crucial to
understand what a European legal framework should be, in order to allow
a) taking advantage from currently available technology in robotics and AI;
b) a proper regulation of production and commercialization of robots;
c) guarantee public safety;
d) protect individual freedom and rights.
2.1. A matter of definition and products
It is not so simple to find a clear definition of the word “robot”, neither in common nor in technical
language. Many websites seem to take the definition of robots for granted. But there is actually no
general consensus on what a robot is and which machines can be qualified as robots.
According to Wikipedia
3
, “a robot is a mechanical or virtual intelligent agent (but the latter are usually
referred to as bots) which can perform tasks on its own, or with guidance. In practice a robot is usually
an electro-mechanical machine which is guided by computer and electronic programming”. So, the
matter of robotics (the discipline dealing with the design, construction, and operation of robots) is
related to the sciences of engineering, electronics, mechanics, and involves also software and artificial
intelligence.
The Encyclopaedia Britannica
4
gives instead a more sociological definition: any automatically
operated machine that replaces human effort, though it may not resemble human beings in
appearance or perform functions in a humanlike manner”.
The Merriam-Webster dictionary
5
even gives three different (and perhaps misleading) definitions:
a) a machine that looks like a human being and performs various complex acts (as walking or
talking) of a human being;
b) a device that automatically performs complicated, often repetitive tasks;
c) a mechanism guided by automatic controls.
More technical definitions use a different wording and refer to non-human agents or intelligent
machines: “the intelligent machine can be a robot, an artificial agent or other machine that implements
some functions requiring autonomous decision making. Such a machine consists of the machine
hardware, software, and an additional level of abstraction, the machine cognition”
6
.
Last but not least the ISO 8373, Robots and robotic devices — Vocabulary”, has recently been
updated with the description of the general class hierarchy of types of robots. According to this
Standard, a robot is an actuated mechanism programmable in two or more axes (directions used to
specify the robot motion in a linear or rotary mode) with a degree of autonomy, moving within its
environment, to perform intended tasks”. The ISO divides robots into “industrial robot” or “service
robot” according to its intended application.
In general, some of these definitions emphasize the repetition of tasks and activities, often in place of
human beings, while others point out the autonomy of the robot. Still others go further and seek to
identify additional skills, such as reasoning, planning, adaptation. Indeed, none of these definitions is
totally wrong or right, since there are robots very different from each other. Existing so many
definitions and approaches, it is easier to understand what a robot is by looking at what it can do, its
2
For further details and bibliography see A. Santosuosso, C. Boscarato, F. Caroleo, R. Labruto, C.
Leroux, Robots, market and civil liability: a European perspective, paper presented at the conference
Ro-man, Paris, 12 September 2012.
3
http://en.wikipedia.org/wiki/Robot
4
http://www.britannica.com/
5
http://www.merriam-webster.com/dictionary/robot
6
Anniina Huttunen et al, Liberating Intelligent Machines with Financial Instruments, Nordic Journal of
Commercial Law, Issue 2010#2, available at: http://ssrn.com/abstract=1633460
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characteristics and tasks. As technical experts teach us, a robot may have many abilities: locomotion,
autonomy, the ability to interact, plan and even reason and learn.
Of course, every level and typology of abilities may have different legal implications.
Figure 1: robots a matter of definition
Robots are artefacts, instruments in the hands of manufacturer, programmer, owner and user. Legal
issues raised by the use of a robot can be traced to different macro-areas, such as the safety of new
technologies, especially for their use in workplaces or by carrying out dangerous activities; the placing
of the product "robot" on the market and the surveillance of the market, intellectual property rights
(who has the intellectual property rights when a robot makes a new invention?). But, on a second
layer, especially if autonomous and cognitive elements are emphasised, robots can also be seen as
agents, as entities which act and react in their environment. In this case, the liability for robot’s action
may become a crucial point.
For this reason, it is reasonable to split the analysis into two different sides: a) the European law on
technical requirements in order to protect consumers; b) the legal responsibility arising from a robot’s
harmful action.
2.2. Autonomy for Philosophy, Engineering and Law
Among the most critical and controversial terms currently used in robotics is that of autonomy. To
define autonomy (from Ancient Greek auto- meaning ‘self’ and nomos which means ‘custom, law’,
OED) is of critical importance since the term is related to an advanced form of control of artefacts
aimed at removing the constant dependence on human intervention. With respect to other forms of
control, such as an automatic or a tele-operated system, which are still dependent on a human
operator either for the acquisition of inputs or the making of decisions, an autonomous system
acquires inputs and makes decisions by its own.
Therefore, autonomy brings about challenges and tensions which go beyond the robotics fields into
ethics and law. Indeed, there is an compelling need to devise a legal framework for regulating the use
of autonomous robots, to ensure their safety by means of new standards and risk evaluation
procedures, and to establish criteria for ethically and socially acceptable applications. As pointed out in
a recent study on drones, ‘autonomy is no longer solely a feature of humans. Whether it is a desirable
quality for machines will be among the most important policy questions of the coming years’ (Marra
and McNeil, 2012).
This complex framework obliges roboticists, lawyers and ethicists to work together within a
multidisciplinary perspective in order to test and support their findings. It is precisely that
‘interdisciplinary’ collaboration that is the main reason for the current debate on the meaning of the
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word autonomy. As a matter of fact, as we shall see, autonomy means different things to different
people and sometimes its meanings are mutually exclusive.
Moreover, the terminological complexity surrounding the term autonomy is further increased by the
tendency typical for human beings to humanize objects, also known as “anthropomorphism”. In other
words, autonomy, likewise intelligence, cognition, and behaviour is among those qualities that human
beings attribute to inanimate entities, like cars, computers and also robots.
The confusion generated by anthropomorphism is of many kinds and affects mainly laypeople. For
instance, anthropomorphism may be responsible for raising the level of users’ expectations towards
the actual capabilities of an autonomous robot, or for making them believe that autonomous robots are
technologically independent, namely possessing a will of their own”. In so doing, anthropomorphism
generates in the user or beholder an attitude which tends to ignore that internally robots are not
mysterious mechanisms (e.g. ghost in the shell) but causal links, such as computer programs, which
have been realised by human beings.
Given the fact that robots are physically embodied and that often they are designed to resemble
human beings in their morphology and/or behaviour, the effects produced by anthropomorphism on
autonomous robots may be very strong.
The scope of this brief section is to shed some light on the usage of autonomy by considering its
meaning from the perspectives of robotics engineers, philosophers and lawyers and to highlight some
of the consequences which its different connotations may generate.
From the standpoint of the robotic engineer, an autonomous robot can be defined as a robot capable
‘to operate in the real-world environment without any form of external control, once the machine is
activated and at least in some areas of operation, for extended periods of time’ (Lin et al, 2011).
In actual facts, taking into account the current advancements of technology, today autonomous robots
are often characterised by degrees of autonomy. The terms “in the loop”, “on the loop” or “out of the
loop” are often used to describe the level of independence of a robot from a human being during the
various phases or tasks into which its goal has been subdivided. First, there is autonomy, which, as
has been pointed out above, refers to the ability to perform a task without human intervention (in this
case the human is out of the loop). Second, there exists also an intermediate level of autonomy, so
called semi-autonomy or shared control, in which the accomplishment of a task is shared between a
robot and the supervision of a human operator (the human is on the loop). Finally, in tele-operation,
the human operator is in the loop, since he/she is in full control of the robot during the execution of a
task.
It is not unusual, therefore, to find autonomous robots characterised by multiple degrees of autonomy.
For instance, a drone can fly autonomously during navigation but is supervised during ascent and
descent phases and tele-operated during a strike task.
The selection of different degrees of autonomy for controlling an artefact is primarily a matter of
choosing the right balance between safety and performance, which in technical jargon is referred to as
dependability. The right degree of autonomy ‘may be quantified by characterizing the safe operating
region within which the system acts appropriately’ (Antsaklis and Meystel, 1998). However,
notwithstanding its dependability, the degree of autonomy may be also depended on non-technological
factors. Indeed, there might be situations in which autonomy may not be desirable, for instance when
there are human beings involved in the task carried out by a robot. In other words, the desirability of
autonomy may depend on social (e.g. social resistance by prospected users), legal (inadequacy with
respect to the legal system), or ethical issues.
Turning our attention to the meaning of autonomy in the field of philosophy, it is important to introduce
the term as being related to self-rule, which is based on two components: ‘the independence of one’s
deliberation and choice from manipulation by others, and the capacity to rule oneself’ (Christman,
2011). Hence, in philosophy autonomy mainly refers to the ability to decide one’s own goals. The
emphasis is not on how the task is carried out, as it is in robotics, but on why, namely on volition
(Haselager, 2005) as well as on the authenticity of the goals that trigger someone to act. Applied to a
robot, such an understanding of autonomy would imply the possibility to set and decide its own
goal(s).
Such a difference of perspectives raises the issue of whether total autonomy, both for robots and
humans, will be ever possible and even desirable. In philosophy the question of whether human
beings can be fully autonomous, namely fully independent from external and internal forces is an over
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debated issue. It seems that a strong definition of autonomy applies neither to human beings nor to
robots. As a matter of fact, some scholars, such as Martha Nussbaum, see the relational dependence
on the other as a relevant element for a more humane definition and understanding of autonomy.
In robotics, absolute autonomy, as it has been pointed out, would imply a conflict between a robot and
those who have created and programmed it, which, in turn, would mean the negation of the very
raison d’être of robots i.e. to serve human beings. A completely different scenario, one in which
robots can rebel against humans will loom on the horizon. It is not surprising therefore, that looking at
the variety of definitions of autonomy currently used in robotics, the possibility of self-generating goals
is never contemplated: ‘such robots [autonomous robots] will accept high-level descriptions of tasks
and will execute them without further human intervention. The input descriptions will specify what the
user wants to do rather that how to do it. The robots will be any kind of versatile mechanical device
equipped with actuators and sensors under the control of a computing system’ (Latombe, 1991: IX).
Hence, it follows that the rules governing the robot, i.e. the programme and the input descriptions
received by the user (i.e. the goal) are the distinguishing features that characterize the understanding
of autonomy in robotics. They are the two ways in which human beings currently control the robots,
respectively from the inside and outside, and make them still dependent on human beings.
Finally, through the lens of law, the concept of autonomy can be related to several issues, depending
on the branches of law (e.g. private, public or administrative) and the legal system considered.
According to the Italian private law system for instance, autonomy is generally understood as ‘one’s
own power to rule his/her own interests and to decide about his/her own juridical sphere, in
accordance with the limits and duties established in the juridical order(Enciclopedia Treccani). By
contrast, the Italian administrative law defines autonomy as ‘the capacity to self-determination and
self-rule acknowledged to certain public bodies’ (Enciclopedia Treccani).
On a very general level, and taking into account several branches of law, it is possible to relate the
term autonomy to:
possessing a legal status (having rights and duties),
having legal capacity (making decisions or taking actions which are valid by law),
and being legally accountable for the decisions made or actions taken.
Therefore, with respect to robots, from the legal point of view, the notion of autonomy opens the
ontological issue of the ‘legal standing’ of robots according to the existing taxonomies, - namely
natural person, physical person, animal or things - and of the attribution of rights and duties.
Furthermore, autonomy would bring to the fore the question of whether robots should be endowed
with legal capacity and be considered responsible in case of damages according to civil and criminal
law.
2.3. Law and legislation in Europe
Laws and legislation in Europe set up a multi-layered reality. Currently in the European Union as a
whole and in each country of the Union, laws are the results of a multifaceted law-making process with
several law-makers at work:
a) International sources (international treaties and conventions involving also non-European
countries: e.g. World Intellectual Property Organization - WIPO - and the WIPO Convention
(1967), The World Trade Organization - WTO).
b) Conventions and agreements signed within the Council of Europe (i.e. European Convention
on Human Rights).
c) European Union law sources
7
:
7
Article 288 of the Treaty on the Functioning of the European Union (formerly Article 249 TEC):
“To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions,
recommendations and opinions. A regulation shall have general application. It shall be binding in its
entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be
achieved, upon each Member State to which it is addressed, but shall leave to the national authorities
the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is
addressed. Recommendations and opinions shall have no binding force”.
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a. Regulations (a legislative act of the European Union which immediately becomes
enforceable as law in all Member States simultaneously).
b. Directives (legislative acts of the European Union, which require Member States to achieve
a particular result without dictating the means of achieving that result. Unlike Regulations
(which are self-executing and do not require any implementing measures), Directives
normally leave Member States with a certain amount of leeway as to the exact rules to be
adopted.
c. Recommendations and Opinions (without binding force).
d) Transnational rules (i.e. legal concepts and standards which flow horizontally across national
borders and are adopted in Court decisions and similar).
e) National legislations and law sources (including local legislations)
Strictly national
National legislation that transpose international and/or EU sources and rules (such as
Directives) into the laws of a State.
Figure 2: the complexity of European legislation
2.4. Robot abilities
In this section, we summarize technical aspects related to activities that can be performed by
autonomous service robots.
The aim of this section is to focus on technical problems and possible consequences, and to point out
roadmaps to solve them. All the problems mentioned in this section are technological problems that
are faced by the research community in their everyday activity, with the aim to obtain more robust and
reliable autonomous robots.
As far as legal aspects are concerned, it should be clear what a robot can and cannot do, and in which
conditions, so that normal operating conditions could be defined by the manufacturer to state the
“range of environmental conditions and other parameters which can influence robot performance
within which the performance of the robot specified by the manufacturer is valid.” (ISO 8373:2012) In
this regards, the first step is to define sound models of the technical aspects to identify all the
characteristic features that affect the implemented functionalities. At this point it will be possible to
define all technical aspects in a standardized way and to evaluate the different implementations. The
second step will require defining standardized, unified benchmarks against which producers of parts,
as well as full robotic systems will have to evaluate their products, so that a quality level can be
guaranteed. It will then be possible to treat devices, and possibly robots, holding a certification in the
same way as it is done in other market fields.
In the following, we first present the main components, such as sensors and actuators, then the
computing system, and finally some of the main functionalities which are needed for autonomous
service robots. Our perspective is to highlight the deficiencies in each of them with respect to the
issues related to dependability, accountability, predictability of results and standardization/certification
issues. We provide also a tentative roadmap to face the aforementioned issues.
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2.4.1. Sensors
In general, a robot has a set of sensors that provide data about the environment it has to operate in.
Sensors are of uttermost importance in assessing robot abilities. Dangers may arise because of
inadequateness or faults of the sensors, and inadequateness of the processing of their signals.
2.4.1.1. Range sensors
Range sensors provide the distance from a surface in a given directions. The principal range sensors
used today are: sonar, laser scanner, infrared, and special cameras (TOF, stereo, and RGB-D
cameras). The main problems coming from these sensors are related to their limited range (not only in
distance, but also in angle) and to errors in the distance and direction estimation they may produce.
Details about prototypical examples are presented in the following.
i. Sonar
Sonar sensors provide a measure of distance from the sensor to a surface able to reflect an ultrasonic
wave produced by the emitter. Potential problems affecting their perception are described in the
following. Due to poorly-reflecting surfaces (e.g., some clothes, or furniture covering) or very smooth
surfaces (e.g., mirrors and glasses) some objects or obstacles may not be detected; for instance, if the
signal is used to stop in the presence of an obstacle, and this is not detected, the robot can damage it.
The produced ultrasonic wave may be reflected several times by different surfaces before reaching the
detector, so that the estimation of the distance can be very different from the real one (e.g., in
corners): if the signal is used to map the environment, an inaccurate map is drawn. Finally, any
reflecting surface in the volume of perception of the sensor, generally a cone, can be detected, but
there is no possibility to distinguish its direction within the volume.
ii. Laser scanners
These sensors measure the distance to an objects reflecting laser beam over a direction. If moved
horizontally, they provide a map of the distance to objects on a planar angle; if moved also vertically,
they can scan a solid angle. Among the main problems: the possibility of missing reflection due to
absorbing surfaces (e.g. black surfaces or surfaces too enlightened), and the fact that, for planar laser
scanners, the detected distances lie on a plane. In the latter case, for instance, if the scanning plane is
parallel to the floor, at 30 cm from it, and the scanner is pointed in the direction of a table, it can detect
legs of the table, but not the table board; if a robot would rely on this for navigation, it might easily try
to go through the table. Due to discrete angular resolution, it might happen that small objects are not
perceived when distant from the sensor also when they are within its range.
iii. Special cameras
Special cameras are able to provide an image containing information about the distance of each of the
points in the image from the camera system. We do not enter into technical details about them here,
but the typical problems are similar to the ones of standard cameras, mentioned below.
2.4.1.2. Cameras
The sensors embedded in cameras are organized in a matrix of pixels. Many issues are related to the
physical sensor, the optics, the electronics, the low-level control of the camera (e.g., automatic
adaptation to light intensity), but most of them can be managed by accurate programming of the
interpretation of the image signal. Among typical problems with cameras, which may affect the quality
of the image interpretation, we mention: the sudden changes in light intensity or different intensity in
different parts of the same image, the inadequate resolution of the image (e.g., to recognize distant
objects or details), the inadequate field of view.
Typical evaluations of the image allow to recognize coloured areas (problem: colours change with light
intensity) and shapes (problem: objects can be partially occluded by others or appear partially in the
image …), objects (even at a cognitive level, e.g., a chair, and including faces and body postures), and
many others. Computer vision is a rich discipline that has explored many issues needed to implement
such a complex process, such as identifying objects and places in an image, but a lot of work has still
to be done to get reliable information under any of the common conditions a service robot has to face.
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2.4.2. Roadmap for sensors
To improve the quality of sensors improving their dependability and accountability, a first step should
be in the direction of formal standardization and characterization, so that it would be possible to define
formally and completely their functionality and the range of their operating conditions. This will also
make it possible, in a second phase, to define standard benchmarks to evaluate sensors against their
ability to provide the desired functionalities. For robotic applications, it would also be important to
define functionalities at high level of abstraction (e.g. provide the distance to a person, in a cluttered
environment), and have benchmarks suitable to evaluate them. To overcome intrinsic limitation of
sensors, multi-sensor fusion is already been tried and will provide interesting results.
2.4.3. Actuators
Usually, mechanical devices that implement actuators are associated with controllers able to obtain
from them an action as similar as possible to that decided at computational level and expected by the
designer. Being physical devices, they take some time to reach the desired set point, and this might be
a problem in some situations. For instance, if a robot is running at 1m/sec and its sensors detect a
person traversing its trajectory, the high level decision of stopping suddenly might be taken in
milliseconds, but it might require one or more seconds to reach the set point (null speed), during which
time the robot will travel one or more meters. If the robot is a 300 grams cleaning robot, this might be
almost irrelevant, if it is a 80 kg care-bot or a wheelchair, this behaviour might cause injury to people
and damage to things.
2.4.4. Roadmap for actuators
Besides achieving higher precision and dexterity, an important aspect concerns active and passive
compliance: a robot should be intrinsically compliant to external objects so to reduce the possible
effects of mis-actuation, accidental contact with people, and unpredicted collisions with obstacles.
2.4.5. Computing system
On the robot there might be a certain number of computers, running programs that interpret data
provided by sensors, possibly building on them some map or a so-called “world model”, merging new
data with old data, considering a priori knowledge, eventually planning actions, and, finally taking a
decision about the actions to be requested from the actuators. Amongst possible malfunctions, we
mention problems of correctness of the programs, which have to face situations that are a priori
difficult to identify and even hard to list exhaustively. The problem is well known and faced through
specific software production procedures in fields such as space applications and automotive.
Definition of functionality
and the range of the
operating conditions.
Standard benchmarks.
Multi sensor fusion
capable of provide the
required Safety Integrity
Level (SIL).
ROADMAP
FOR SENSORS
Formal standardization
and characterization.
Risk analysis concerning
safety issues.
Active and passive
compliance. Safety aspects with back-
drivable actuators with
extensive memory
handling; energy buffering;
new design shapes.
ROADMAP
FOR ACTUATORS
Higher precision and
dexterity.
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2.4.6. Roadmap for computing system
The roadmap to face problems related to computing has already been developed and followed in other
fields, and it is only needed to select the degree of quality that is needed for the software and
hardware controlling a specific robot. Since developing software and hardware with high reliability is
expensive, it will be necessary to characterize the risks of each robotic application and to require the
corresponding software development process and reference hardware platform. Getting all of this low-
cost is the real challenge.
2.4.7. Self-localization
A robot is designed to perform tasks by moving its body, or, at least, some of its parts. To perform
such tasks it is necessary that the robot knows where its parts are located w.r.t. objects and people it
has to interact with. Following up from was said above, the self-localization process depends on data
acquisition and interpretation, as well as on reasoning about data and world modelling. Problems with
self-localization result in an erroneous position estimate that may affect the achieving of a goal.
Among the problems that might occur are those related to precision. For instance, the accumulation of
self-localization errors may cause a robot to get lost, or a poor estimation of the distance from the
table surface might lead a robot to drop a glass some centimetres from the surface, instead of placing
it on it. Other problems might be related to the possible similarities among places (e.g., in a hospital)
that, according to the available data and their interpretation cannot be distinguished, so leading to an
ambiguous self-localization.
2.4.8. Roadmap for self-localization
The research community has done a lot of work in the field of localization and several solutions, off-
board or on-board, exists also as commercial-off-the-shelf options. As usual a trade-off between cost,
affordability, and set-up burden is needed and the latter should guide future development. Indeed, one
of the main limitations to the diffusion of self-localizing robots is due to the complexity of set-up, which
greatly influences the quality of the whole process. Making set-up and deployment easier is one of the
first steps to face. Robustness is another important aspect to achieve, and the definition of
benchmarks will help to characterize it in the operating conditions. The next important aspect to
achieve is long-life performance (especially for on-board solutions), with the possibility to adjust to
modifications of the environment. Finally, semantics will have to be introduced to make the robot to
self-localize w.r.t. elements of the word (e.g., a bathroom, an arm-chair, a workbench) that have
relevant semantic roles in the applications.
Increase the degree of
quality for the software
and hardware controlling
a specific robot.
Generic robot controller that
accepts all sort of models,
control laws, sensor input.
Models of behaviors including
tolerance to the real world
uncertainties.
ROADMAP
FOR COMPUTING SYSTEMS
Characterize the risks of
each robotic application and
require the corresponding
software development
process and reference
hardware.
Robustness and
benchmarks to
characterise the
operating conditions.
Long-life performance with the
possibility to comply to
modifications of the
environment.
Autonomous planning for
complex tasks.
ROADMAP
FOR SELF LOCALIZATION
Easier set-up and
deployment.
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2.4.9. Navigation
Navigation, at least in the mobile robotics jargon, is the set of activities that a robot does to move from
one place to another. Usually, this requires self-localization, motion planning, motion control and
obstacle avoidance. Navigation is usually supported by a map which can be either provided by the
designer, or learned by the robot through a mapping activity. When this is performed simultaneously
with localization we have SLAM (Simultaneous Localization And Mapping). Navigation, too, relies on
data acquisition and interpretation, and on reasoning, but also on actuators and control. Problems with
navigation affect its goal of bringing the robot to the desired location, and might be due to all the
processes mentioned above, as well as to problems specific to the environment, which may change its
structure (open/close passages, people in passages, etc.), if the robot is not able to manage such
situations.
2.4.10. Roadmap for navigation
A key point in navigation would be the definition of a standard reference architecture which could be
instantiated on the different robots, enabling easy integration of robust solutions for each of the
components of this complex function. Several efforts have been carried out in this direction and they
have failed to converge toward a single commonly agreed solution. This missing convergence has led
to several options with different pros and cons, but no single one of them has become the (de-facto)
standard. A definitive harmonization of these efforts toward the decision about a single standard which
would respect real-time constraints and safety should lead to a single architecture to be compliant
with.
2.4.11. Physical interaction
2.4.11.1. Transportation and physical treatment
Some robots can be used to transport people, or to physically treat them. In both cases, a physical
interaction is performed, requiring adapting the dynamics of the robot (speed, force) to the task and
the comfort of the involved persons.
Among the problems in this area: the possibility of a wrong estimation of position (see above), a
possibly incomplete perception or an unsuitable control can make the robot apply an undesired force
(or move at an undesired speed) so that the subject is injured, or suffers, or simply feels
uncomfortable with the robot.
2.4.11.2. Manipulation
Service robots can manipulate objects to bring them to the user, or to interact with the users, e.g., to
feed them or to give them an object. In this case, most of the problems may come both from wrong
localization (w.r.t. the target, or elements around), and wrong speed or force selected to perform the
action.
2.4.11.3. Mobile manipulation
Many robots are able to move in the room, and, at the same time, manipulate objects with mechanical
arms attached to the body. This requires the ability to plan and execute actions for many actuators in
an integrated way, and monitor the execution of the plan from different points of view. For instance, an
Standard reference
architecture
Improved navigation in
unstructured outdoor
environments.
Standard reference architecture
that respect real-time
constraints.
Safe and reliable navigation in
unstructured outdoor
environments.
ROADMAP
FOR NAVIGATION
Harmonization of the
current architectural
solutions.
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arm on a wheelchair should be kept within the wheelchair footprint when passing a door, and, at the
same time, it should avoid to hit the user seated on the wheelchair, and, possibly, continue to perform
its task (e.g., bring a glass of water just taken from the fridge).
2.4.12. Roadmap for physical interaction
Most of the problems are related to sensors, the estimate based on their data, actuators, and control.
In physical interaction, passive compliance is an important feature that is being achieved by some
systems: this would reduce problems due to wrong estimation and actuation, by making the physical
contact intrinsically compliant. Other important aspects already being faced are dexterity and better
sensibility.
2.4.13. Non-physical interaction
2.4.13.1. Verbal interaction
Care robots may interact with people using natural language (NL). Problems possibly arising from
verbal interaction are related to the goals of this type of interaction, including: missing information
transfer (from both sides), and missing (or undesired) emotional effects.
2.4.13.2. Gestural interaction
Gestural interaction is usually performed to induce or understand emotions and signals in the other.
We can include among gestural signals: face expressions (also represented on a screen), body
movements, and body positioning. Gesture recognition is mainly related to artificial vision and shares
its problems. Gesture generation is related to the actuators, their performance and their control at
different levels. Problems possibly arising can be missing or misinterpreted signals or inappropriate
emotional relationships.
2.4.13.3. Roadmap for non-physical interaction
For verbal interaction, the next steps will concern NL interpretation from generic users in generic
environments, which include signal analysis, as well as semantics. NL interpretation has been an open
problem for dozens of years at it is coming to its solution within the NLP community. Robotics should
harmonize its efforts jointly with the NLP community in this direction. For gesture recognition, we will
need more accurate movement descriptors and detectors, so to better characterize gestures and
recognize them in the different natural situations that may occur.
Strictly connected to the
sensors roadmap. Passive
compliance.
User intention estimation to
make systems fault tolerant.
Further improvements to make
intrinsically compliant the
physical contact.
Detection of the intention of the
persons in the working area of
the robots.
ROADMAP
FOR PHYSICAL INTERACTION
Strictly connected to the
sensors roadmap.
Better dexterity and
sensibility.
Gesture recognition.
Techniques for learning
the user’s intentions by
experience.
Advanced human motion
interpretation of unknown or
unlearned gestures.
Recognition of emotions, user
behavior and intent
interpretation.
ROADMAP
FOR NON
-
PHYSICAL INTERACTION
NL interpretation from
generic users in generic
environments.
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2.4.14. Learning
In some situations, it is possible to avoid programming the robot, or to feed it with a model, and make
it learning models and behaviours by itself. More often, a possibly incomplete or generic model or
behavioural module is refined and adapted by a learning/adaptation process. This activity is critical
since, while learning, the robot could reach an unstable state, and may not behave as expected. To
reduce this type of problems, in other fields such as automotive and white goods, the range of
behaviours and the range of model parameters are defined so to keep the device always in an
acceptable, although not optimal state, and then, by interacting with the user, collecting data, and
applying learning/adaptation algorithms, the configuration is updated within a set of acceptable
configurations.
Learning/adaptation can be done by different techniques: teaching by doing (someone controls the
robot to do the desired action), imitation learning (the robot should imitate the correct action shown by
some other agent), reinforcement learning (the robot tries different actions in different situations, the
effects are evaluated and a reinforcement is provided to the robot that uses it to modify its model), or
supervised learning (a set of correct pairs <input configuration, desired output> are provided to the
robot, which uses a learning algorithm to generalize a model to produce the correct output from
possibly all the possible input configurations). Learning/adaptation can be performed either while the
robot is operational in its activity (online learning) or in special situations (batch or offline learning).
Problems in this area come when the final model is not satisfactory, and this may depend on many
factors amongst which are: the set of data provided in the learning/adaptation process, the way the
process has been performed (the teacher …), the learning algorithm and its implementation. This
opens a problem of accountability
2.4.15. Roadmap for learning
Algorithms especially suited to robot learning (in its different aspects) have to be defined keeping into
account the learning/adaptation goals and contexts in which they will have to be applied. In particular,
as it is done in other application fields, the limits left to the learning/adaptation algorithm should be
characterized in order to achieve and maintain always an acceptable performance also in life-long
learning.
Learning/adaptive control.
The learning modules react
flexible to changing conditions.
The behavior is learned within
strict pre-defined boundaries.
Adaptation and reinforcement
learning.
The learning robotic systems can
adapt their behavior to changing
situations and altered requirements.
Learning teamwork.
ROADMAP
FOR LEAR
NING
Learning in well defined
circumstances/conditions
.
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3. Robots’ market law and robots’ consumer law
Hereinafter a big picture of the rules, which can apply to robots from a European point of view, is
drawn.
The situation of EU laws in the field of robotics can be described as a series of circles having a
common centre: the inner circle (constituted by EU Directive 2006/42/EC, which regulates the specific
sector of machinery and, according to the commonly shared opinion, can encompass the category of
robots considered as mechanical artefacts); the wider circle (constituted by more general measures
governing policies to protect health, public safety and consumer interests: the EU Directive
2001/95/EC, the EU Decision 768/2008/EC and the EU Decision 765/2008/EC, which settle the rules
on the product safety) and the external circle (which encompasses rights and guarantees recognized
by the EU Directive 1999/44/EC on the sale of any kind of consumer goods).
Figure 3: Robots as product: current legislation.
3.1. The inner circle: the Directive 2006/42 on Machinery
The Directive 2006/42 has the twofold aim of harmonising the health and safety requirements
applicable to machinery on the basis of a high level of protection of health and safety, while ensuring
the free movement of machinery on the EU market.
Scope and definitions
Article 1 sets out the scope of the Directive, that is to say the products to which the provisions of the
Directive are applicable. There are listed seven categories to which the Directive applies:
a) machinery;
b) interchangeable equipment;
c) safety components;
d) lifting accessories;
e) chains, ropes and webbing;
f) removable mechanical transmission devices;
g) partly completed machinery.
Obviously, we focus on the first one, “machinery”, which Article 2 defines as follows:
“ ‘machinery’ means:
an assembly, fitted with or intended to be fitted with a drive system other than directly
applied human or animal effort, consisting of linked parts or components, at least one of
which moves, and which are joined together for a specific application,
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an assembly referred to in the first indent, missing only the components to connect it on
site or to sources of energy and motion,
an assembly referred to in the first and second indents, ready to be installed and able to
function as it stands only if mounted on a means of transport, or installed in a building or a
structure,
assemblies of machinery referred to in the first, second and third indents or partly
completed machinery referred to in point (g) which, in order to achieve the same end, are
arranged and controlled so that they function as an integral whole,
an assembly of linked parts or components, at least one of which moves and which are
joined together, intended for lifting loads and whose only power source is directly applied
human effort”.
What seems to be essential to be included in this category is to be a product with parts or components
linked together in an assembly. The robots, as described above, easily fill in some of these definitions.
Placing on the market and putting into service
Article 5 provides a summary of the obligations to be fulfilled by manufacturers of machinery or their
authorised representatives. According to this article, before placing their products on the market or
putting them into service, they have to:
a) ensure that it satisfies the relevant essential health and safety requirements set out in Annex I;
b) ensure that the technical file referred to in Annex VII, part A is available;
c) provide, in particular, the necessary information, such as instructions;
d) carry out the appropriate procedures for assessing conformity in accordance with Article 12
8
;
e) draw up the EC declaration of conformity in accordance with Annex II, part 1, Section A and
ensure that it accompanies the machinery;
f) affix the CE marking in accordance with Article 16
9
.
Therefore, the manufacturer or his authorised representative shall have, or shall have access to, the
necessary means of ensuring that the machinery satisfies the essential health and safety requirements
set out in Annex I
10
. The means may include, for example, the necessary qualified staff, access to the
8
Art. 12: «2. Where the machinery is not referred to in Annex IV, the manufacturer or his authorised
representative shall apply the procedure for assessment of conformity with internal checks on the
manufacture of machinery provided for in Annex VIII.
3. Where the machinery is referred to in Annex IV and manufactured in accordance with the
harmonised standards referred to in Article 7(2), and provided that those standards cover all of the
relevant essential health and safety requirements, the manufacturer or his authorised representative
shall apply one of the following procedures: (a) the procedure for assessment of conformity with
internal checks on the manufacture of machinery, provided for in Annex VIII; (b) the EC type-
examination procedure provided for in Annex IX, plus the internal checks on the manufacture of
machinery provided for in Annex VIII, point 3; (c) the full quality assurance procedure provided for in
Annex X.
4. Where the machinery is referred to in Annex IV and has not been manufactured in accordance with
the harmonised standards referred to in Article 7(2), or only partly in accordance with such standards,
or if the harmonised standards do not cover all the relevant essential health and safety requirements
or if no harmonised standards exist for the machinery in question, the manufacturer or his authorised
representative shall apply one of the following procedures: (a) the EC type-examination procedure
provided for in Annex IX, plus the internal checks on the manufacture of machinery provided for in
Annex VIII, point 3; (b) the full quality assurance procedure provided for in Annex X»
9
Art. 16: « 1. The CE conformity marking shall consist of the initials ‘CE’ as shown in Annex III.
2. The CE marking shall be affixed to the machinery visibly, legibly and indelibly in accordance with
Annex III.
3. The affixing on machinery of markings, signs and inscriptions which are likely to mislead third
parties as to the meaning or form of the CE marking, or both, shall be prohibited. Any other marking
may be affixed to the machinery provided that the visibility, legibility and meaning of the CE marking is
not thereby impaired».
10
Ian Fraser (ed.), Guide to application of the Machinery Directive 2006/42/EC, European Commission
Enterprise & Industry, 2010, http://ec.europa.eu/enterprise/sectors/ mechanical/files/machinery/guide-
appl-2006-42-ec-2nd-201006_it.pdf,visited on 14
th
Feb. 2012.
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necessary information, the competency and the equipment needed to carry out the necessary design
checks, calculations, measurements, functional tests, strength tests, visual inspections and checks on
information and instructions to ensure the conformity of the machinery with the relevant essential
health and safety requirements.
Procedures for assessing the conformity of machinery
Article 12
11
concerns the conformity assessment procedure that must be carried out by the
manufacturer of machinery or his authorised representative before placing machinery on the market
and/or putting it into service. The conformity assessment procedure is mandatory, however, for certain
categories of machinery, the manufacturer can choose between several alternative procedures
(internal checks on the manufacture of machinery, Annex VIII; EC type-examination procedure, Annex
IX, plus the internal checks; full quality assurance procedure, Annex X).
CE Marking
Regulation (EC) 765/2008 defines CE marking” as a marking by which the manufacturer indicates
that the product is in conformity with the applicable requirements set out in Community harmonisation
legislation providing for its affixing.
By affixing or having affixed the CE marking, the manufacturer indicates that he takes responsibility for
the conformity of the product. The CE marking consists of the initials ‘CE’ with the graphic form shown
in Annex III. The various components of the CE marking must have substantially the same vertical
dimension, which may not be less than 5 mm. The minimum dimension may be waived for small-scale
machinery. The CE marking must be affixed to the machinery visibly, legibly and indelibly in the
immediate vicinity of the name of the manufacturer or his authorised representative, using the same
technique. Where the full quality assurance procedure has been applied, the CE marking must be
followed by the identification number inserted by the Notified Body that approved the manufacturer's
full quality assurance system
12
.
The CE marking shall be the only marking which attests the conformity of the product with the
applicable requirements of the relevant EU harmonisation legislation providing for its affixing. Article
16
13
of the Directive requires the Member States to forbid the affixing on machinery of markings, signs
or inscriptions which are likely to mislead third parties as to the meaning or form of the CE markings or
both.
11
See under note 2.
12
Ian Fraser (ed.), Guide to application of the Machinery Directive 2006/42/EC, European Commission
Enterprise & Industry, 2010, http://ec.europa.eu/enterprise/sectors/ mechanical/files/machinery/guide-
appl-2006-42-ec-2nd-201006_it.pdf, visited on 14
th
Feb. 2012.
13
See 3.
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Figure 4: Procedures for the placing on the market
14
Titles and references of harmonised standards under the directive
The Commission Communication 20.07.2011 to favour the implementation of the Machinery Directive
sets out the titles and references of harmonised standards. In particular, the Communication states the
application of the standard EN ISO 10218-1:2008 for robots for industrial environments (Safety
requirements - Part 1: Robot - ISO 10218-1:2006, including Cor 1:2007). The ISO 10218-2: 2011 (Part
2: Robot systems and integration) specifies the safety requirements for robot’s integration. In
particular, this International Standard defines the “safeguarded space” and the “restricted space”
established by means, which limit the motion of the machine to protect people from the hazards
presented by the robot system. The limiting devices (integral to the robot or external) could be
mechanical or non-mechanical. But in case of non-mechanical devices, they have to be characterized
by a high performance level.
It is also important to mention the ISO Draft International Standard (DIS) 13482, which is intended to
be a harmonised European standard related to safety requirements for robots in personal care
applications. This standard would be an interpretation of ISO 12100, which is the general standard for
safety of machinery. The ISO (DIS) 13482 defines “personal care robot” as a robot that performs
aiding actions and actions contributing directly towards improvement in the quality of life of humans,
excluding medical applications. It divides personal care robots in three different classes based on the
level of physical interaction with users: 1) mobile servant robot (capable of travelling to perform serving
tasks in interaction with humans); 2) physical assistant robot (that assists a person to perform required
tasks by providing supplementation or augmentation of personal capabilities); 3) person carrier robot
14
Source: European Commission Enterprise and Industry, Ian Fraser (General Editor), Guide to the
application of Machinery Directive 2006/42/EC, 2nd edition, June 2010.
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(with the purpose of transporting humans to an intended destination). This International Standard
covers human-robot physical contact applications, describes hazards associated with the use of these
robots and provides requirements to eliminate, or adequately reduce, the risks associated with these
hazards.
The Machinery Directive’s large scope allows considering that robots can easily be included in the
categories of machinery (Article. 1, letter a) or partly completed machinery (Article. 1, letter g).
Therefore, robots’ production and the following placing on the market have to respect the procedures
for assessing conformity and the manufacturer has to satisfy all the relevant essential requirements
and conditions set out by the Directive (declaration of conformity, CE marking, instructions, technical
file).
3.2. The wider circle: the Directive 2001/95 on general product
safety
The Directive imposes a general safety requirement on any product put on the market for consumers
or likely to be used by them, including all products that provide a service. A safe product is one which
poses no threat or only a reduced threat in accordance with the nature of its use and which is
acceptable in view of maintaining a high level of protection for the health and safety of persons.
Safe product
A product is deemed safe once it conforms to the safety provisions provided in European legislation,
or, in the absence of such rules, if it complies with the specific national regulations of the Member
State in which it is being marketed or sold. The product is also deemed safe if it complies with the
European standard established according to the procedures in this Directive
15
. In the absence of such
regulations or standards, the product's compliance is determined according to the following (Article 3):
a) the voluntary national standards (transposing other relevant European standards), the
Commission recommendations (setting out guidelines on the assessment of product safety);
b) the standards of the Member State in which the product is being marketed or sold;
c) the codes of good practice as regards health and safety;
d) the current state of the art;
e) the consumers' safety expectations.
Manufacturer and distributor obligations
Manufacturers must put on the market products, which comply with the general safety requirements. In
addition, they must:
provide consumers with the necessary information in order to assess a product's inherent
threat, particularly when this is not directly obvious (Article 5);
take the necessary measures to avoid such threats (e.g. withdraw products from the market,
inform consumers, recall products which have already been supplied to consumers, etc.)
16
.
Distributors are also obliged to:
supply products that comply with the general safety requirement;
monitor the safety of products on the market;
provide the necessary documents ensuring that the products can be traced.
If the manufacturers or the distributors discover that a product is dangerous, they must notify the
competent authorities and, if necessary, cooperate with them. This obligation to inform the competent
authorities is clarified in Annex I of the Directive.
15
Summaries of EU legislation, Product safety: general rules,
http://europa.eu/legislation_summaries/consumers/consumer_safety/l21253_en.htm, visited on 14
th
Feb. 2012.
16
Summaries of EU legislation, Product safety: general rules,
http://europa.eu/legislation_summaries/consumers/consumer_safety/l21253_en.htm, visited on 14
th
Feb. 2012.
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Member States' obligations
The Member States ensure that the manufacturers and the distributors comply with their obligations
(Article 6). They put in place structures, which are responsible for:
monitoring product compliance with the safety requirement;
taking the necessary measures as regards risk products (e.g. prohibiting such products being
marketed) and informing the Commission of the details
17
.
Member States set out rules to punish offenders and ensure that consumers benefit from a system,
which investigates complaints.
Decision 768/2008 and Regulation 765/2008 on marketing of products
The Decision 768/2008 provides, in the form of reference provisions, definitions and general
obligations for economic operators and a range of conformity assessment procedures from which the
legislator can select as appropriate. It also lays down rules for CE marking. This Decision establishes
clear definitions of fundamental concepts such as “manufacturer”, “distributor”, “importer”, “harmonised
standard”, “placing on the market” and “conformity assessment”. The establishment of explicit, single
definitions will make it easier to interpret and correctly apply future laws in this field.
Obligations of manufacturers, importers and distributors
In order to be placed on the market, a product must comply with certain essential requirements. The
manufacturer must ensure that his products comply with the applicable requirements by carrying out or
commissioning a product conformity assessment procedure
18
. The procedures, which are to be used,
shall be chosen from among the modules set out and specified in Annex II.
If the product complies with the essential requirements, the manufacturer affixes the CE marking on
the product and draws up an EC declaration of conformity. The manufacturer indicates his name
(registered trade name or registered trade mark) and his address on the product.
The product must be accompanied by instructions and safety information in a language which can be
easily understood.
The importer and the distributor must ensure that the manufacturer has fulfilled his obligations (e.g.
check that the product has a conformity marking and that the required documents have been
supplied)
19
.
Manufacturers (or their authorised representative), distributors and importers must provide the
competent authorities with all necessary information on the product concerned in order to ensure
product traceability.
Accreditation and market surveillance
The Regulation 765/2008, complementary to Decision 768/2008, envisages the laying down of rules
on the organisation and operation of accreditation, in the Member States, of conformity assessment
bodies performing assessment of any substance, preparation or other product, transformed or not, to
be placed on the Community market.
This Regulation provides a framework for European accreditation policy. Accreditation is characterised
by the following (Articles 4, 5, 6):
there is only one accreditation body per Member State;
there is no competition between accreditation bodies and conformity assessment bodies;
accreditation is carried out by a public authority;
17
Summaries of EU legislation, Product safety: general rules,
http://europa.eu/legislation_summaries/consumers/consumer_safety/l21253_en.htm, visited on 14
th
Feb. 2012.
18
Summaries of EU legislation, Marketing of product CE conformitymarkin,
http://europa.eu/legislation_summaries/consumers/consumer_safety/l10141_en.htm, visited on 14
th
Feb. 2012.
19
Summaries of EU legislation, Marketing of product CE conformitymarkin,
http://europa.eu/legislation_summaries/consumers/consumer_safety/l10141_en.htm, visited on 14
th
Feb. 2012.
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accreditation bodies operate on a not-for-profit basis and comply with the principles of
impartiality and objectivity.
Member States must guarantee effective surveillance of their market. They are required to organise
and carry out close monitoring so that the products covered by Community harmonisation
legislation meet the requirements for protection of public interests such as health or safety.
The competent market surveillance authorities in each Member State monitor products on the
Community market. They are responsible for (Article 18, 19):
monitoring compliance with product safety requirements;
following up complaints or reports on product-related risks;
monitoring accidents and damage to health suspected to have been caused by these
products;
verifying corrective action has been taken;
following up and updating scientific and technical knowledge concerning safety issues;
following up on the notification of dangerous products.
3.3. The external circle: Directive 1999/44 on sale of consumer
goods
The purpose of this Directive is the approximation of the laws, regulations and administrative
provisions of the Member States on certain aspects of the sale of consumer goods and associated
guarantees in order to ensure a uniform minimum level of consumer protection in the internal market
20
.
Contract of sale
Consumer goods must be in conformity with the contract of sale. Goods are deemed to be in conformity
with the contract if, at the moment of delivery to the consumer, they (Article 2):
a) “comply with the description given by the seller and possess the qualities of the goods which
the seller has held out to the consumer as a sample or model;
b) are fit for any particular purpose for which the consumer requires them and which he made
known to the seller at the time of conclusion of the contract and which the seller has accepted;
c) are fit for the purposes for which goods of the same type are normally used;
d) show the quality and performance which are normal in goods of the same type and which the
consumer can reasonably expect, given the nature of the goods and taking into account any
public statements on the specific characteristics of the goods made about them by the seller,
the producer or his representative, particularly in advertising or on labelling.”
The seller shall be liable to the consumer for any lack of conformity, which exists at the time the goods
were delivered. In the case of a lack of conformity, the consumer shall be entitled to have the goods
brought into conformity free of charge by repair or replacement or to have an appropriate reduction
made in the price or the contract rescinded with regard to those goods.
Compliance with the commercial guarantee
Any commercial guarantee offered by a seller or producer is legally binding upon them under the
conditions laid down in the guarantee document and the associated advertising (Article 6). The
guarantee must state that the consumer also has statutory rights and clearly state that these rights are
not affected by the guarantee. Furthermore, the guarantee must state its content, in simple and
understandable terms, and indicate the conditions for claiming under it, notably its duration and
territorial scope and the name and address of the guarantor.
20
Summaries of EU legislation, Sale of consumer goods and associated guarantees,
http://europa.eu/legislation_summaries/consumers/protection_of_consumers/l32022_en.htm, visited
on 14
th
Feb. 2012.
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4. Intellectual Property Rights facing to the Development
of Robotics in Europe
4.1. Relevance of IPR with respect to Conception of Robots and
their Exploitation
IPR doctrine distinguishes more than nine IPR regimes, all covering different objects of protection.
21
In
this section we will propose an overview of the IP-regimes that are relevant in the development of
robot-technology: Patents, Copyrights, Databases Rights, Trademark Rights, Industrial Design Rights,
Semiconductor Topography Rights and Trade Secrets. National Intellectual Property Rights-regimes
are largely based upon or influenced by international conventions, treaties and European regulations
and directives. The following section provides a first introduction to the relevance of IPR for the
development of robotics in Europe by indicating the significant international/European legislation per
object; Object of protection and protection requirements Right holders; Exclusive Rights; Limitations;
Relevance for developments in the field of robotics.
Panorama of the Applicable European Intellectual Property Legislations
IPR are likely to be relevant in the whole process of robot development.
Copyright
Legislation – International:
- Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS);
- Berne Convention for the Protection of Literary and Artistic Works (BC);
- UNESCO Universal Copyright Convention (UCC);
- WIPO Copyright Treaty (WCT);
Legislation – EU:
- Directives 2001/29/EC on the harmonization of certain aspects of copyright and
related rights in the information society (Infosoc-dir.);
- Directive 2004/48/EC on the enforcement of intellectual property rights (IP-
Enforcement Dir.);
- Directive 96/9/EC on the legal protection of databases (Database dir.);
- Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of
copyright and certain related rights (2011 Term dir.);
- Directive 2006/116/EC on the term of protection of copyright and certain related rights
(2006 Term Dir.)
- Directive 2009/24/EC on the legal protection of computer programs (Software dir.)
- Directive 93/83/EEC on the coordination of certain rules concerning copyright and
rights related to copyright applicable to satellite broadcasting and cable
retransmission (Satcab-dir.)
Object of protection and requirements for protection: Every literary, scientific or artistic work is
copyright protected, as long as it is original (not copied or derived from other works).
22
Within the EU,
21
See for example the index of the TRIPS-agreement. See also Cornish & Llewelyn Intellectual
Property: Patents, Copyright, Trade Marks and Allied Rights: London: Sweet & Maxwell 2007 (W.
Cornish & D. Llewelyn 2007); L. Bently & B. Sherman. Intellectual Property Law, Oxford (USA): Oxford
University Press 2009 (Bently & Sherman 2009).
22
Art. 1 BC
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a second requirement for a work to be copyright protected is that it must be an author’s own
intellectual creation.
23
This second criterion implies that the author should have been able to make
subjective choices in the creation of the work. Ideas cannot be subject to copyright.
24
The Berne
Convention provides a non-exhaustive list of work-categories, amongst which are books, pamphlets,
lectures, dramatic works, musical compositions, choreographies etc. Computer programs are also
protected by copyright. The EU-Software Directive also allows preparatory material to be protected,
under the condition that the computer program is original in the sense that it is an author’s own,
intellectual creation. As indicated, original literary or artistic works that are the author’s own,
intellectual creation can be copyright protected. No copyright (©) symbol on the work is required.
Right holders & Exclusive rights: Generally, the actual creator of the work is the copyright-holder. The
copyright holder has the exclusive rights to make reproductions of the work and communicate the work
to the public. The rights holder is the only one who may copy his work, translate it, make adaptations
or derivative works from it, distribute it, broadcast it, or rent copies of the work.
25
Article 6 Infosoc-dir.
prohibits the circumvention of effective technological measures protecting the right holder’s
exploitation rights.
26
Limitations: Copyright is limited in time and lasts until 70 years after the death of the author.
27
During
the protection-period, copyright may be limited to serve certain purposes. General rule is that
exceptions to copyright may be provided (by national legislators) in certain special cases which do not
conflict the normal use of works and do not unreasonably prejudice the legitimate interests of the right
holder.
28
The Berne Convention states that States parties may – under certain conditions - also
provide for compulsory licensing mechanisms.
29
Examples of exceptions to copyright are educational
purposes; purposes of the well-functioning of democracy and the freedom of speech; as well as for
purposes of the preservation of cultural heritage.
30
In view of software-interoperability reverse
engineering by means of decompilation may be allowed without consent of the right holder.
31
Relevance of copyright for the development of robots: Many aspects of a robotic device
can be copyright protected. As long as there is originality and an author’s own, intellectual
creation, all sorts of (including preparatory material) programming code may fall under this
IPR-regime. Also the design of a robot can be copyright protected. Note that for the
development of the steering software of a robotic device, permission of the original
programmer/right holder can be required.
Databases
Legislation – International:
- Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS);
- Berne Convention for the Protection of Literary and Artistic Works (BC);
- UNESCO Universal Copyright Convention (UCC);
- WIPO Copyright Treaty (WCT);
23
CJEU 16 July 2009, Infopaq & CJEU 1 December 2011, Painer.
24
Art. 9(2) TRIPS; art. 2 WCT. See also P. Goldstein & P.B. Hugenholtz, International Copyright, New
York: Oxford University Press 2010, p. 5. (Goldstein & Hugenholtz 2010).
25
See art. 9-12 BC; 6-8 WCT; 2-4 Infosoc-dir.
26
See on this subject Bently & Sherman 2009, pp. 318-327.
27
Art. 1 2006 Term Directive.
28
The three-step test: Art. 9(2) BC; Art. 13 TRIPS; Art. 10 WCT 5(5) Infosoc-dir.
29
See Art. 12bis(2) and 13(1) BC.
30
See Art. 5 Infosoc-dir.
31
Art. 6 Software-dir; also Bently & Serman 2009, pp. 230-231.
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Legislation – EU
:
- Directives 2001/29/EC on the harmonization of certain aspects of copyright and
related rights in the information society (Infosoc-dir.);
- Directive 2004/48/EC on the enforcement of intellectual property rights (IP-
Enforcement Dir.);
- Directive 96/9/EC on the legal protection of databases (Database dir.);
- Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of
copyright and certain related rights (2011 Term dir.);
- Directive 2006/116/EC on the term of protection of copyright and certain related rights
(2006 Term Dir.)
- Directive 2009/24/EC on the legal protection of computer programs (Software dir.)
- Directive 93/83/EEC on the coordination of certain rules concerning copyright and
rights related to copyright applicable to satellite broadcasting and cable
retransmission (Satkab-dir.)
Object of protection and requirements for protection: Databases can be protected under two IPR-
regimes. Whenever the selection or arrangement of data in a database is original and is the own,
intellectual creation of an author, a database is protected by copyright.
32
Databases are also protected
by a sui generis-regime provided by the Databases Directive (DD). A collection of independent works,
data or other materials, organised in a systematic or methodical way, and individually accessible by
electronic or other means, is defined as a database.
33
Databases are protected by a databases right
(DR) whenever there has been a substantial investment in the obtaining, verification or presentation of
the contents of a database.
34
Investments in the actual creation of data are not taken into
consideration. Databases rights arise automatically upon the creation of a database, no registration is
required for protection.
Right holders & Exclusive rights: The author of a database is the right holder,
35
who has the exclusive
right to the qualitative or quantitative extraction or re-utilization of the whole or a substantial part of the
database. Also the repeated and systematic extraction/re-utilization of insubstantial parts of the
database is not allowed without permission of the right holder. Extraction may be considered as the
reproduction of the contents of a database. Re-utilization is the making available of the contents to the
public, including the distribution or renting of copies.
36
The non-substantial extraction or re-utilization
may be done without consent of the right holder, given that this is done by a lawful user.
37
Limitations: A databases right is valid for fifteen years after the date of completion of the database.
38
EU Member States may implement exceptions to the exclusive rights regarding the extraction of a
non-electronic database for private purposes only. Also the extraction of databases for the purposes of
non-commercial education, or public security and administrative or judicial procedure may be
allowed.
39
32
See art. 3 Databases dir.
33
Art. 1(2) DD.
34
Art. 7(1) DD.
35
Art. 4 DD.
36
Art. 7(1-2).
37
Art. 8 DD.
38
Art. 10 DD.
39
Art. 9 DD.
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Relevance of databases rights for the development of robots. Collections of data for
example containing test results, environmental data,
GPS
-location data etc. may be
protected by a sui generis databases right, as long as a substantial investment in the
obtaining, verifying or presentation, in other words: in the creation of the database-
infrastructure and the acquisition of the contents, has been made.
Patents
Legislation – International:
- Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS);
- Paris Convention for the Protection of Industrial Property (Paris Convention);
- Patent Cooperation Treaty (PCT);
Legislation – European:
- EEC Agreement relating to Community Patents (not in force), 89/695/EEC (CPA);
- Convention on the Grant of European Patents (EPC)
Object of protection and requirements for protection: Any inventions (products or processes) in the
field of technology that are new, involve an inventive step and are capable of industrial application can
be patented.
40
Inventions that are not part of ‘the state of the art’ - which comprises all information that
has been published worldwide before, in writing or orally- are considered to be new.
41
An invention
has an inventive step whenever it is ‘not obvious to a person skilled in the art’.
42
Some subject matter
is however excluded from patentability, amongst which are: immoral inventions; diagnostic, therapeutic
and surgical methods for the treatment of humans and animals; aesthetic creations; discoveries,
mathematical methods and scientific theories; schemes, rules and methods for playing games or doing
business; computer programs and presentations of information.
43
In order to obtain a patent, an
application can be filed at the respective national patent offices. To obtain an European patent (which
consists of a ‘bundle’ of national patents), an application can be filed at the European Patent Office in
Munich.
44
After a (lengthy) procedure is run through successfully,
45
a bundle of national patents is
granted to the applicant.
Right holders: The inventor who files the patent application will become the owner of the patent.
46
Exclusive rights: The owner of a patent may exclusively produce, import, bring into circulation, rent,
deliver or otherwise exploit the patented object,
47
as it is defined in the claims.
48
If the patented subject
matter is a process, the exclusive rights comprise in particular the using, offering for sale, selling and
importing thereof.
49
Limitations: The maximum term of protection of a European patent is 20 years.
50
Article 30 TRIPS
states that exceptions to the exclusive rights may be provided that do not unreasonably conflict with
the normal exploitation of the patent and that do not unreasonably prejudice the legitimate interests of
the patent owner. Art. 31 TRIPS allows States parties – under strict conditions to arrange for the
40
Art. 27(1) TRIPS, see also art. 52(1) EPC.
41
Art. 54 EPC.
42
Art. 56 EPC.
43
Art. 27(2)&(3) and 52(2), 53 EPC.
44
Art. 75 EPC.
45
See for example E. Baden-Powell, A. Bleakley & J. Eneberi, Intellectual Property and Media law
Companion, West Sussex: Bloomsbury 2010, p. 119-126 (Baden-Powell a.o. 2010).
46
Art. 58, 60 EPC.
47
Art. 28(1) TRIPS.
48
See Art. 6 PCT, art. 69 EPC.
49
Art. 28(2) TRIPS.
50
Art. 63(1) EPC.
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compulsory licensing of patents. The Dutch legislator has implemented that under certain conditions
in the public interest; in case a patent is not used; or if it is necessary for the application of another
patent – a compulsory license can be obtained against the will of the patentee.
51
Relevance of Patent Rights for the development of robots. Many inventions in the field of
robotics can be patented, given that they are new (not known of in whatever form, wherever
in the world) and add to the state of the art, in a way that the invention is not a too obvious
step in the natural process of development. Patentable inventions may lie in specific parts of
a larger system, and also in certain specific production methods. Software as such may
however not be patented.
Trademarks
Legislation – International:
- Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS);
- Paris Convention for the Protection of Industrial Property (Paris Convention);
- Madrid Agreement Concerning the International Registration of Marks (MA)
- Madrid Protocol Relating to the Madrid Agreement Concerning the International
Registration of Marks (MP)
Legislation – European:
- Council Regulation 207/2009 on the Community Trade mark (CTMR);
- Directive 2008/95/EC to approximate the laws of the Member States on trade marks
(Harmonization-dir.)
Object of protection and requirements for protection: Any sign or combination of signs capable of
distinguishing goods or services of an undertaking is capable of constituting a trademark.
52
For
example words, letters, numerals, names, figurative elements, combinations of signs and colours are
mentioned as examples in TRIPS. The CTMR, which allows the registration of trademarks that are
valid in the whole European Union, requires in article 4 that signs are capable of being represented
graphically. Trade marks without a distinctive character, for instance signs describing the particular
good or service, cannot be registered.
53
As indicated, in order to obtain protection for trademarks,
signs should be registered. This may be done at a national level (according to national legislation), at
an international level (internationally coordinated by the MA or the MP) or, in Europe, at community
level (coordinated by the CTMR).
Right holders & Exclusive rights: Any natural or legal person, including public authorities may be the
owner of a Community trademark.
54
The owner of a trademark may forbid others to use the same or a
similar sign to identify the same or similar goods or services, where such use would constitute a
likelihood of confusion of the public.
55
The owner of a ‘well-known’ community trademark may forbid
others to use the same or similar sign to identify other goods or services, which, without due cause,
takes advantage of, or is detrimental to, the distinctive character or the repute of the trademark.
56
Limitations: TRIPS allows States parties to provide limited exceptions to the rights conferred by a
trademark, under the condition that exceptions take account of the legitimate interests of the owner of
51
Art. 47 Dutch Patent Act.
52
Art. 15(1) TRIPS, art. 4 CTMR.
53
Art. 7 CTMR.
54
Art. 5 CTMR.
55
Art. 16(1) TRIPS, 9(1)(a-b) CTMR.
56
Art. 19(1)(c) CTMR.
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a trademark and of third parties.
57
Trademarks protect signs for at least 7 years and can last forever,
as long as they are being used by their owners.
58
Relevance of Trademark Rights for the development of robots. Trademarks can be used
to identify (certain aspects of) the outcome of developments in robotics. For example end
products, logos, names could, provided that they are non-descriptive signs, be protected.
Also, the respective names of working groups could be registered trademarks
Industrial Designs
Legislation – International:
- Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS);
- Paris Convention for the Protection of Industrial Property (Paris Convention);
Legislation – European:
- Council Regulation 6/2002 on Community Designs (CDR);
- Directive 98/71/EC on the legal protection of designs (Design-dir.)
Object of protection and requirements for protection: Article 25(1) TRIPS states that industrial designs
that are new and original may apply for protection. The Community Design Regulation arranges for the
protection of designs in the European Union. Designs are defined to be the appearance of a (or part of
a) product resulting from the features of, in particular, the lines, contours, colours, shape, texture
and/or materials of the product or its ornamentation.
59
Designs that are new (no identical
predecessors)
60
and have an individual character (different from other designs)
61
that have not solely
been dictated by their technical functions
62
can be protected under the CDR.
63
Two types of
Community designs are distinguished:
64
an unregistered community design is automatically protected
after it had been made available to the public.
65
A Registered Community design is protected after
registration.
66
Right holders: & Exclusive rights: The designer is the first to obtain the design right.
67
The right holder
to a registered design has the exclusive right to use it by, for example, creating, selling, importing or
exporting products in which the design is incorporated (or other designs that do not produce a different
overall impression to the informed user). Right holders to unregistered designs may forbid others to
copy the design.
68
Limitations: Unregistered Community designs are protected for three years after first making available
to the public, registered designs can be protected for 5 years (renewable 5 times) from the date of
filing for registration.
69
Article 26(2) TRIPS leaves room for the limitation of the design right, provided
that exceptions do not unreasonably conflict with the normal exploitation of the legitimate interests of
the right holder or third parties. Art. 20 CDR allows –under certain conditions- the use of designs
57
Art. 17 TRIPS.
58
Art. 18 TRIPS, art. 15 CTMR.
59
Art. 3(a) CDR.
60
Art. 5(1) CDR.
61
Art. 6(1) CDR.
62
Art. 8(1) CDR.
63
Art. 4(1) CDR.
64
Art. 1(2)(a)&(b) CDR.
65
Art. 11(1) CDR.
66
Art. 12(1) CDR: This registry is the Office for Harmonisation of the Internal Market (OHIM).
67
Art. 14(1) CDR.
68
Art. 19(1-3) CDR, see also 10 CDR for definition of the scope of protection.
69
Art. 11, 12 CDR.
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without permission of the right holder for private, non-commercial purposes, for experimental purposes
and for citation or teaching.
Relevance of Community Design Rights for the development of robot. The layout of a
robot that is new and has an individual character which is not purely the outcome of a
technical process can be protected with a Community Design Right. Besides the total layout,
elements of robots that are visible, such as designed limbs, shapes and curves of respective
robot-parts can also be protected against copying or ‘borrowing’.
Topographies of Semiconductors
Legislation – International:
- Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS);
- Treaty on Intellectual Property in Respect to Integrated Circuits (TRIC, not in force);
Legislation – European:
- Directive 87/54/EEC on the legal protection of topographies of semiconductor
products (Semiconductor-dir).
Object of protection and requirements for protection: Article 35 TRIPS provides for the protection of
the layout-designs (topographies) of integrated circuits, in accordance with TRIC. The Semiconductor-
dir. (TSD) defines that the topography of semiconductor products can be protected, in so far as it is the
result of its creator’s own, intellectual effort and is not commonplace in the semiconductor industry.
70
A
topography is a series of related images representing the three-dimensional pattern of the layers of
which a semiconductor is composed and in these series, each image has the pattern or part of the
pattern of a surface of the semiconductor product in any stage of its manufacture.
71
Registration is
necessary for the establishment of exclusive rights.
72
Registered topographies may carry a capital ‘T’
to indicate that they have been registered.
73
Right holders & Exclusive Rights: The creators of topography of a semiconductor are the initial right
holders.
74
They have the right of reproduction of the topography and the commercial exploitation or the
importation of the topography for that purpose, or of a semiconductor product that is manufactured
using the topography.
75
Limitations: Topography Rights last up to 10 years after first commercial exploitation.
76
Article 5(2)
TSD allows the private and non-commercial reproduction of a topography without prior permission of
the right holder. Also the reproduction for the purpose of analysing, evaluating, or teaching the
concepts, processes, systems or techniques embodied in the semiconductor product may be done
without permission.
77
70
Art. 2 TSD.
71
Art. 1(b) TSD.
72
Art. 7(1) TSD.
73
Art. 9 TSD.
74
Art. 3(1) TSD.
75
Art. 5(1)(a-b) TSD.
76
Art. 7 (3-4) TSD. See also art. 38 TRIPS
77
Art. 5(3) TSD.
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Relevance of topographies for the development of robots. Topographies of
semiconductor products that are used in robotic devices, which are new and owned by their
creators, may be registered, thus instituting a right against copying of that semiconductor
product. In the commercial exploitation of robotic devices, it should be acknowledged that the
microchips used in the retail or wholesale robotic devices may be protected, and therefore
permission of the right holder may be required.
Trade Secrets
Legislation – International: Agreement on Trade-Related Aspects of Intellectual property
Rights (TRIPS); Paris Convention for the Protection of Industrial Property (Paris Convention).
Object of protection and requirements for protection: According to TRIPS, Secret information is to be
protected.
78
Information is deemed to be secret as long as it is not generally known among, or readily
accessible to persons that normally deal with that specific kind of information; and the information has
a commercial value – because it is secret; and reasonable steps have been taken to keep the
information secret.
Right holders & Exclusive Rights: Natural and legal persons have the right to prevent secret
information from being disclosed to, acquired by or used by others without their consent, in a manner
contrary to honest commercial practices. This is understood to mean ‘at least’: breach of contract,
breach of confidence, inducement to breach an obligation and the acquisition of undisclosed
information by third parties who knew or should have known that such practices were involved in the
acquisition.
79
These TRIPS provisions have not lead to specific European legislation; they can
however play an important role on a national level. For instance in The Netherlands, company secrets
are protected by criminal law
80
and the Dutch Civil Code states that employees who disclose company
secrets can be fired.
81
Relevance of trade secrets for the development of robots. Information can – as we have
seen – be protected by Intellectual Property Rights. Re-use of such information generally
requires permission of the right holder. Information that is not IP-protected can however still
be protected in case it is kept secret, which means that it may not be acquired or used in, for
instance, a robot-development process.
Ownership of IPR is based on a fundamental principle: in most cases, the rights arise on the head of
the creator who is an individual.
However, the economic logic requires an adjustment of these rules especially in the event of a
creation made by an employee in the framework of his professional duties. Thus, it may seem evident
that the rights belong to the employer who funded the creation.
4.2. Rules likely to be adjusted
4.2.1. Regarding the above mentioned principle related to ownership
As part of the creation of Europe and to achieve its objectives, a corpus of rules ("EU law") has been
established. EU law is supranational law that means that it is incumbent on Member States to
transpose the European provision into national law to enable the achievement of the goal set by the
EU law.
However, the EU law does not rule all of legal fields or provide options so that Member States may
have different laws on specific subject matters, notably concerning the ownership of a creation
realized by an employee.
78
Article 39 TRIPS.
79
Art. 39(2) and footnote 10 TRIPS.
80
Artt. 272-273 Dutch Criminal Code.
81
Art. 7:678(3) Dutch Civil Code.
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Initially, intellectual property was an area left to the legislative authorities of the Member States.
Indeed, the original Treaty of Rome of 25 March 1957 was not intended to regulate intellectual
property. Article 222 of this Treaty stated elsewhere that “This Treaty does not in any way prejudice
the rules of the property regime in Member States.”
However, dissemination of intellectual works tends increasingly to exceed the
strictly national framework. That is why it appeared necessary to harmonize EU countries’ legislation,
in order to ensure that intellectual property enjoys an equivalent level of protection in the internal
market. It is the aim of the different CE’s Directives.
When the work is created under an employment contract, the principle mentioned above remains
unchanged: the owner is the creator of the work and not the employer. It does not matter whether the
work was created at the request of the employer, according to his instructions, in execution of a
contract of employment or with his instruments and tools.
This solution is probably unfair and debatable from an economic point of view because, in concrete
terms, the rule means that the employer cannot hold the ownership on the work created under an
employment contract except if an assignment is made in such contract which must comply with
provisions of intellectual property law and public order.
That is why exceptions were made which have been instituted by EU and/or national laws, notably
concerning software and patents.
Concerning software creation - This is especially true with regard to software creations. Indeed, the
devolution of IPR of software created by an employee to the employer was consecrated in France by
Law No. 85-660 of July 3, 1985.
A Directive of the European Communities dated 14 May 1991 introduced at European level a common
legal regime for software. This Directive adopted the position of French law: Article 2. “Where a
computer program is created by an employee in the execution of his duties or following the instructions
given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the
program so created, unless otherwise provided by contract “.
This text therefore meets the wishes of employers who, if they wanted a software protection by
copyright, were hostile to the rule of “employee-creator-owner”.
Note that the text concerns exclusively the economic rights (the employee remains the author of the
software within the meaning of IP law) and that the text reserves the right to organize, especially in the
contract of employment, a more favourable devolution of the rights to the employee (including a right
to remuneration for the employee). However, this case is rare in practice.
Concerning patents - If the inventor is an employee, the right to a European patent is defined under
the law of the State in which the employee performs his principal activity or in the territory of his
employer.
In many countries like Germany and France, the law provides that “inventions of mission” within the
framework of the mission entrusted to the employee or made with the means of the employer (financial
or human means, equipment, raw materials) are automatically transferred to the employer.
The employer shall pay to the inventor employee additional compensation. The amount of this
additional compensation may be fixed or variable and depends on various factors, including the profit
from the exploitation of the invention, the value of the invention, the personal contribution of the
employee inventor.
When the invention is made by an employee outside the scope of his duties and by his own means,
the employer may, under certain conditions, and payment of a fair price, claim the patent right or
obtain an exclusive license.
In other countries, such as the United Kingdom, the ownership of employee inventions must be set by
contract.
4.2.2. By contractual adjustments
Under intellectual property law, owners are granted certain exclusive rights. Like any exclusive right,
any intellectual property right reveals its true economic interest insofar as it is exploited.
Intellectual property law allows the holder to exploit his personal property, to oppose exploitation by a
third party but also to assign or license his rights. The contracts on the exploitation of intellectual
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property rights can take various forms: license agreements, distribution, sponsorship, franchise
agreements, R & D collaboration agreement, etc.
Other than by an owner exploiting himself his property, licensing is the most common
commercialization way. Licensing occurs when a licensor grants exploitation rights over his property to
a licensee. A license is also a legal contract, and so it will set out the terms upon which the exploitation
rights are granted, including performance obligations that a licensee must comply with.
Subject to compliance with certain legal provisions relating to public policy or competition law for
example, the owner is free to exploit his rights and assign them. Under these restrictions, we can
mention for example two French law provisions regarding copyright.
In French law, the assignment clause must respect legal constraints of form and substance if
economic rights are transferred or licensed in whole or in part: each right transferred must be stated
separately and its field of exploitation must be defined as to its extent, destination, territory and
duration. All rights not expressly assigned will be considered as reserved
6282
.
Copyright laws grant to the author economic rights such as rights of reproduction, distribution,
adaptation, public performance but also some noneconomic rights known as “moral rights”. Moral
rights originated in French law and are representative of the desire of protection of the author.
According to these rights, the author has the right of paternity, that is to say the right to claim
ownership of the work and prevent others from using his name, the right of integrity which gives author
the right to prevent alternation, mutilation or distortion of its work and the right of publication which is
the right of the author to decide whether he is going to publish or not his/her work. In French law,
moral rights are perpetual, that means that these rights shall be maintained after the death of the
author and shall be exercisable by the persons authorized by the legislation of the country (for
example the descendants of the author).
Considering the fact that these rights are attached to the author’s personality, moral rights are
inalienable. Thus, an author is not able to assign his moral rights to a third party.
4.3. The limits of existing rules with regard to the development of
autonomous robots
The above mentioned legal IP systems are based on the fact that computers are inert tools, so that
current intellectual property regimes usually only apply to humans or legal persons creations and not
to creations coming from computers or inert tools. However, artificial technologies have advanced
rapidly to the point that intelligent agents do not assist humans in the creation of works, but generate
them autonomously. Thus, intelligent agents are capable of creativity.
Than it raises issues about possible protection of "robot generated works" by IPR and on the
conditions of such protection (see section 4.3.1) and furthermore on the ownership of such kind of
creations (see section 4.3.2) and on the limits of the current rules.
82
Art L 131-2 Code de la Propriété Intellectuelle
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Figure 5: IPR & Robots: Both object and (in future) subject of IP’s protection.
4.3.1. The limits facing the conditions of protection by intellectual property
rights
4.3.1.1. Patentability of the robot-generated work
The key issue concerns an "invention" which would have been conceived by a robot. This invention
might not have the possibility to be protected by a patent.
Indeed, in our case, the invention is not based on a robot-aided work but from a robot-generated work,
in other terms the invention is realized independently by the robot without human intervention. And in
this case, to obtain patent protection, the inventor should be designated in the application. The
designation of an inventor in a patent application is a legal act. It is essential to indicate in the patent
application the real inventor because a false designation may result in the loss of the patent.
The inventor must be designated by his name and his address. That implies that the inventor must be
a physical person, even if the applicant can be a corporation.
Also, an invention made by a robot, even if the criteria of patentability are met, cannot be protected by
patent.
Last but not least, it could be necessary to review the criteria of patentability of a robot-generated
work. In fact, TRIPS provides patent protection for any inventions whether products or processes in all
fields of technology provided that they are new, involve an inventive step and are capable of industrial
application.
An invention involving an inventive step is defined as an invention which involves technical advance
as compared to the existing knowledge or having economic significance or both. The invention must
not be obvious to a person skilled in the art, in other terms this person must not be able to come to
that invention unless he develops some special skills.
Regarding robot’s potential high level of intelligence, is this non obviousness criterion still relevant?
Should this criterion be replaced or modified?
And what about the copyright protection?
4.3.1.2. Copyright protection of the robot-generated work
Can copyright be applied to robot-generated works?
Within the EU, the first requirement for a work to be copyright protected is that it is original. Thus, the
work will necessary involve intellectual effort and should not be copied or derived from other works.
The second one is attached to the person who created it, in other words it is connected to the
personality of the author. In fact, creation is related to the human consciousness: the author should
have made subjective choices in the creation of the work.
It appears that if the activity of creation is performed by a machine, without human intervention, there
is no creation in the sense of copyright. Human intervention is necessary.
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Thus, we can note that, in the absence of human intervention in achieving the creation, a protection by
an IPR seems to be difficult to obtain for this creation. With regard to the development of artificial
intelligence, there is no doubt that intelligent agents are no longer inert tools but that they can select
among several inputs the relevant ones and summarize them. Users of intelligent agents have no
control, or if any, a very little one, over the final work created by it.
That is why, it seems to be relevant to adapt the criteria of IP protection in order to grant such
protection to robot-generated works.
Another key issue about such robot self-developed invention will be to determine who will be vested of
the ownership of these creations.
4.3.2. Ownership of rights
Current IP system is based, on one hand, upon the distinction between authorship and/or inventorship
and, on the other hand, on ownership.
In the case of a robot-generated work, the robot itself is in fact the author or the inventor. If a
protection by an IPR is provided to a robot-generated works, who will be entitled to the rights thereto?
Several possibilities could be envisaged.
The designation of the owner is important particularly because several issues can be identified about
their exploitation.
Indeed, who is responsible for damage caused by the robot? Can the owner license or sell the robot
as is, in other terms without guarantee of safety? Who is responsible for the acts of infringement
committed by an autonomous robot? How control the data collected by the robot, particularly personal
data?
4.3.2.1. The computer programmer
The key issue is whether or not the programmer should be considered as the author and so as the
owner because he is the one who introduced the original expression into the work.
If the programmer contributes substantially to the creation of the intelligent agent and makes the
arrangements necessary for the making of the work, he has no control over the works created by the
robot and he cannot conceive that works.
Can we consider that robot-generated works are derivative works so that the programmer is invested
of intellectual property rights? The answer seems to be no because robot-generated works do not
necessarily meet the requirements for qualification of derivative works. In fact, the original code is not
included in the robot-generated works.
Granting ownership to the programmer would mean that he might automatically own everything the
intelligent agent is generating. So, why would the user buy the program?
This solution does not seem appropriate due to the economic purpose of the intellectual property.
4.3.2.2. The user
The user seems to be the person most directly concerned by the robot-generated works, lawfully
acquired, and capable to create this work in a tangible form.
However, considering the autonomy of the intelligent agent, this solution is not very satisfying
because, as already explained, users of intelligent agent have no control over the final work created
by this agent, unlike a user with his camera. Also, can a user grant the ownership of robot-generated
works because he just pressed a button?
4.3.2.3. The intelligent agent itself
An intelligent agent can independently produce creative works. It seems therefore logical to consider
whether the intelligent agent could be the owner of its works. It should be noted that some national
laws recognize legal companies as copyright holders so the question is not hypothetical.
This solution is supported by some people and implies that intelligent agent acquires a legal
personality.
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However this hypothesis raises other issues. In fact, even though an intelligent agent is capable of
creativity, it is not capable of transferring rights to others (for example to negotiate and formalize this
transfer). Moreover, it cannot have standing to sue an alleged infringer of its work. So who will enforce
the copyright owned by an intelligent agent in this case?
In addition, the main purpose of granting copyright protection is to stimulate creation and promote
original works of authorship and/or innovation. Intelligent agents have not to be encouraged to
perform, so granting exclusive rights to robots makes no sense.
4.3.2.4. The investor
As previously mentioned, IP law is based on an economic logic. Thus, should we vest the ownership
of robot-generated works in the robot owner or in the person who makes financial and logistical
contributions for the development of robot-generated works?
a. The robot owner
By analogy with civil law which provides that the owner of a property has a right over its fruits
regardless of who possesses it, we could consider that the owner of a robot should own the works
generated by its robot.
Under this assumption, if a licensee wants to obtain ownership of the potential works generated by the
robot licensed, the parties will have to negotiate and establish a contract providing for this transfer of
ownership.
By this way, IPR will provide incentives to innovators to invest in research and development. Thus,
IPR fosters this virtuous cycle of innovation and creation.
b. The person who makes financial and logistical contributions for the development of
robot-generated works
Following the example of databases protection and considering the main purpose of IPR, it might be
interesting to introduce a sui generis protection law which would vest ownership in the person who
made financial and logistical contributions for the development of robot-generated works.
That person could be the owner of the robot, the licensee or the user. It could be a corporation. In any
case, it could be the person who makes possible the production of the work.
Note that the legislation of the United Kingdom contains specific provisions in this sense defining a
specific regime for work “generated by a computer in circumstances such that there is no human
author”. Pursuant to this law, the copyright belongs to the “person by whom the arrangements
necessary for the creation of the work are undertaken”
83
.
To conclude, it appears that current IP regimes are still relevant to the development and the
exploitation of inert robots and also to the exploitation of robot-aided works. However, there is a gap in
the law concerning the protection and the exploitation of robot-generated works which has to be filled.
The specificity of such kind of development works should be taken into account by an adequate legal
framework.
83
Copyright
Designs and Patents Act, 1988, s9 (3) UK
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5. Labour law and robotics
5.1. Basis of European Labour Law
For the last fifty years national labour law has been being influenced more and more by European
legislation. But it is still not fully harmonized.
After Treaty of Lisbon one of the most important enabling rules, with exception of other competences,
can be found in Art. 153 Treaty on the Functioning of the European Union (TFEU). This competence
was already implemented in former contracts. Labour law in a common sense needs to be
distinguished from safety regulations in the area of labour law. The background of Art. 153 TFEU is to
create and strength a common European market by introducing minimum standards related to working
conditions.
Article 153 TFEU - (ex Article 137 TEC)
1. With a view to achieving the objectives of Article 151, the Union shall support and complement the
activities of the Member States in the following fields:
(a) improvement in particular of the working environment to protect workers’ health and safety;
(b) working conditions;
(c) social security and social protection of workers;
(d) protection of workers where their employment contract is terminated;
(e) the information and consultation of workers; EN C 83/114 Official Journal of the European Union
30.3.2010
(f) representation and collective defence of the interests of workers and employers, including co-
determination, subject to paragraph 5;
(g) conditions of employment for third-country nationals legally residing in Union territory;
(h) the integration of persons excluded from the labour market, without prejudice to Article 166;
(i) equality between men and women with regard to labour market opportunities and treatment at work;
(j) the combating of social exclusion;
(k) the modernisation of social protection systems without prejudice to point (c).
Until now there are various directives and regulations made by European institutions regulating
several areas regarding labour. For example directives on “protection of employees in the event of the
insolvency of their employer”, “informing and consulting employees”, “protection of young people at
work”, “European Works Council or a procedure in Community-scale undertakings and Community-
scale groups of undertakings for the purposes of informing and consulting employees”, etc. Most of
them are less important for labour law and robotics, but they have significant influence on the
relationship between the employer and the employee. These directives mostly setup only minimal
standards so member states can deviate by stipulation a higher standard.
On the other hand there are directives regulating technical details are important for labour law,
especially to labour safety law. For example the govern product safety and use of hazardous material.
Member states are not allowed to deviate from this norm in general. These directives are passed on
the basis of Art. 114 TFEU:
Article 114 - (ex Article 95 TEC)
1.Save where otherwise provided in the Treaties, the following provisions shall apply for the
achievement of the objectives set out in Article 26. The European Parliament and the Council shall,
acting in accordance with the ordinary legislative procedure and after consulting the Economic and
Social Committee, adopt the measures for the approximation of the provisions laid down by law,
regulation or administrative action in Member States which have as their object the establishment and
functioning of the internal market.
Article 26 TFEU - (ex Article 14 TEC)
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1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the
internal market, in accordance with the relevant provisions of the Treaties.
A function of the internal market is only possible if a proper protection of the single person is achieved.
So product safety and hazardous material is governed by European legislation as well. As dangerous
materials could be used as working appliances during the working process they influence the
employment relationships related to work safety. Most important directives for robotics and labour law
are:
Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on
general product safety,
Directive 2006/95/EC of the European Parliament and of the Council of 12 December 2006 on
the harmonisation of the laws of Member States relating to electrical equipment designed for
use within certain voltage limits,
Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on
machinery, and amending Directive 95/16/EC (recast).
But with the idea to protect the employees some other directives were passed in the area of work
safety for example:
Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage
improvements in the safety and health of workers at work,
Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating
to the assessment and management of environmental noise - Declaration by the Commission
in the Conciliation Committee on the Directive relating to the assessment and management of
environmental noise,
Directive 2002/44/EC of the European Parliament and of the Council of 25 June 2002 on the
minimum health and safety requirements regarding the exposure of workers to the risks arising
from physical agents (vibration) (sixteenth individual Directive within the meaning of Article
16(1) of Directive 89/391/EEC) and
Directive 2006/25/EC of the European Parliament and of the Council of 5 April 2006 on the
minimum health and safety requirements regarding the exposure of workers to risks arising
from physical agents (artificial optical radiation) (19th individual Directive within the meaning of
Article 16(1) of Directive 89/391/EEC).
These directives aim especially for occupational safety. The national regulations derived from these
directives are very often very detailed and give the employer special pre-sets what he has to consider
related to the protection of the employee.
Despite the existence of some of these European laws the labour law in the member states labour law
is still influenced by national legislation or case law to a high degree. This refers to proceedings,
liability or even to safety norms and relationship between the employer and Employers' Liability
Insurance Association. Due to the principle of conferral only some areas of labour law can be
regulated by the EU.
Because of the high importance of the national law, the following paragraphs shall introduce some
principles of labour law with connection to liability (mostly national law) and work safety influenced by
European legislation.
5.2. Labour Law
Image the following record: An Employee was hurt by a transportation robot. It is questionable if the
employer has to pay compensation to the employee. If the workers’ health was damaged, in most
cases the German Social Accident Insurance pays for compensation because of a legal disclaimer (§§
104, 105 of German Social Code VI). If the damage was caused through gross negligence the Social
Accident Insurance can claim their paid compensation from the employer. But what does gross
negligence mean?
The Employer commits gross negligence if he fails to carry out reasonable care in a particular way.
Negligence is evaluated in an objective way. So it is important how an average employer had acted.
Norms of occupational safety can have an influence on this evaluation. From the contract relationship
derive special (secondary) duties, such as duty of care. This duty of care is affected by the norms of
occupational safety as well. So, ISO Norms, EU Directives (Directive 2006/42/EC on machinery) or
recommendations made by Employers' Liability Insurance Association can influence the interpretation
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of negligence. This can be used as orientation. One could say that an employer who does not follow
these rules may act gross negligent. Something similar could be said regarding an employer who does
not do a risk assessment. But problems occur where such rules do not exist yet or if these rules are
not up to date any more. If there are no norms or recommendations, the employer has to orientate to
state of science and technology with the aim to keep risk for health and life especially low.
But additional duties appear in the area of collaboration of employees and robots. The worker has to
be instructed properly; he has to know about dangers arising from the machine and the reasonable
use of it.
Regarding transportation robots at work several duties may appear and could differ from case to case
for the employer. A breach of these duties could lead to liability towards the Employers' Liability
Insurance Association or the Employee itself in cause of non-health damage. By installing the robot in
the factory hall the employer has to keep the risk for the worker as low as possible. He has to follow
the recommendations made by Employers' Liability Insurance Association regarding collaborating
robots and has to instruct his employees properly (training, manual, documentation, information signs).
Referring to the driving feature if the robot moves autonomously he has to prevent that the robot goes
off the track. This means for example to ensure that the sensor or a robot-arm for the collision avoiding
system work properly. This could be guaranteed through regular services and technical checks. It
could be very difficult for an employee to detect such defects because of the complex system.
Regarding the robot working autonomously the employer has to keep an eye on the safety features. If
the robot supports the human, an individual risk assessment must be made before installing the
workplace. Practically it is important to evaluate not only the setup of the robot, but also the setup of
the workstation (pinch points, point of evasion).
Therefor several duties for the employer appear. Problems occur especially if there are no technical
rules or recommendations.
Another problem is the question of prove when an accident has happened. Again, as sometimes
discussed in liability law, an event recorder or black box implemented in the robot could be helpful to
provide information on the circumstances of the accident.
5.3. Labour Safety Law
The use of robots in practical application was once limited to stationary, industry-related robots. The
use of such robots assumed strict precautionary measures that sought to protect workers from injury
within the robot’s sphere of movement. Recent technological development has changed this with the
introduction of more complex industrial robots that can move themselves and work mutually with
humans. The same is shown in the development of mobile service robots, which operate in both
private and public spaces shared by humans and are increasingly more common. This rapid
development may suggest that the future technological application of fully-automated robots that can
learn, make decisions, determine appropriate actions, perceive their surroundings, and react with
flexibility is a reality.
A producer is required to make a legal assessment of risk when his robot is made to operate in any
work environment. This assessment could reach back to a number of legal sources including the EU
Machinery Directive or norms for industrial robots. However, the making of such an assessment is
unreliable because the current standards regulating the organization and layout of work in businesses
that employ robot technology to support production are insufficient. They could lack the stature of law
and regulations, and may not reach the level of safety requirements or test procedures for risk
assessment.
An employer creates potential hazards when he uses machines or employs industrial robots in a work
environment and is thus responsible for any ramifications. In cases involving personal injury,
employers often escape liability under legal disclaimer (see above), and liability is often shifted to
public accident insurance that entitles the injured person to damages except those arising from pain
and suffering. Nevertheless, the possibility to claim recourse against an employer with the help of an
employee’s professional association exists (§§ 110, 111 of German Social Code VII), providing that
the damage sustained, having arisen from intentional or gross negligent action, qualifies for insurance.
Under the Labour Protection Law, an employer must recognize certain legal duties that enable a third
party to protect himself against danger. These include the obligation of risk prevention, the obligation
of risk avoidance, and the obligation of risk removal (Art. 3-5 German Occupational Health and Safety
Act), as well as the duties to warn and instruct (Art. 4 Nr. 7, Art. 9, 12, 14 German Occupational Health
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and Safety Act). In addition to these, he must also recognize risk control duties, organizational duties,
duties of selection and supervision, and the duty to notify (Art. 3, Para 2, 6, Art. 9 Para. 2 German
Occupational Health and Safety Act). The due diligence required in the design of a workplace with a
robot, as well as the respective conduct of a worker within such a workplace, often reaches greater
definition by reaching to applicable ISO or DIN norms. The norms established by EN ISO 10218-1, EN
ISO 10218-2 and European Directive on Machinery are the most relevant in the design of workplaces
with collaborative robots.
Sufficient standards and regulations may lack in some areas. However, this may frustrates the
specification of an employer’s duties to implement safety precautions and to maintain a standard of
care. Moreover, ISO and safe-regulation norms do not have legal character and thus cannot effect a
binding regulation on employers. An employer’s compliance with safety requirements can only be
considered an indication that he has acted with care.
Compliance with technically-advanced safety measures does not always provide protection from risk.
Indeed, residual risk will always appear in the application of robots because the possibility of a robot’s
malfunction can never be eliminated. That is why the legal options for employees require a more
intensive examination, in particular the refusal to work or the right to demand hazard pay.
The development of autonomous robots will go hand in hand with the development of new approaches
for the protection of workers. The idea of a safe work environment may not continue to focus on the
application of independent safeguards or warning devices, but rather the role a robot can play in the
protection of its surrounding workers.
Technological development in the field of robotics always accompanies new questions of law and
safety. The more autonomous a robot is, the more his actions are unpredictable, which raises
concerns about the foreseeability about a robot’s behaviour in certain situations and what dangers can
arise from it. The potential danger is very difficult to estimate, which encumbers the development of
appropriate safety standards and requirements for producers and employers that wish to employ an
autonomous robot under the Industrial Safety Regulation.
If a robot malfunctions, the question remains whether this malfunction is the responsibility of a
concrete legal person, such as a human. It is difficult to discern or predict whether a malfunction
happened due to bad programming, incorrect input of information, faulty operation of a worker, or a
wrong “decision” of the robot (see above)
Most humans who come into contact with autonomous robots will not be robot experts. Even if
employees are trained to work with a robot, new robotic systems are simply too complex for an
employee to be expected to have much more than basic user knowledge. This complicates the
determination of an employee’s responsibility when he causes damage to or by mishandling a robot.
5.4. Proposed roadmap for Labour law
Step 1: Fundamentals: clarify following issues:
Clarify in which area robots should be used?
Do we really need regulations (vs. over-regulation or self-regulation) and in which fields?
Consider crucial problems
In which cases do we need safety regulations for (potential) dangerous robots?
Should we consider collaborative robots (non-autonomous), as well (see above)?
Step 2: deeper investigation of current regulations, by reviewing
EU directives (general/safety)
Implementation of directives into national law
Gaps of EU regulations (analyse competences)
Degree of protection in different member states. Is a derivation given?
Compare national/European rules with others (US/Asia)
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Review implementation of the “magic word” autonomy (or other term) in regulations;
autonomy not considered by EU directive on machinery or self-regulation (DIN, ISO) until
now
Step 3: Find answers
Posing “open” questions which are not answered by current regulations
Formulate concepts, based on these regulations