By Samson Dada Esq
The fourth industrial revolution have caused a swift change to technology, economic and social organizations, societal patterns and the government. One of the most significant part of this phase of global technological change is the Artificial Intelligence (AI). Artificial Intelligence (AI) is simply the ability of a computer or a robot controlled by a computer to do tasks that are usually done by humans because they require human intelligence and erudition. These tasks are carried out with the adoption of deep learning and machine learning algorithms.
It is no longer news that AI disruption has affected several industries and its exponential growth seems unending as its disruption shall likely extend to every sector in the foreseeable future. AI is used in health care technologies, self-driving cars, digital assistants and many other areas of daily life and continues to develop. More products and services are coming onto the market which will optimally affect healthcare; automotive; financial services; retail and consumer; technology, communications and entertainment; manufacturing; energy; transport and logistics etc.
Without doubt, AI comes with its own flaws and imperfections – from
a design, programming or manufacturing defect, or improper use, or inadequate
warning label, all of which could cause damage to third parties.
Due to the concerns as regards potential misuse or unintended consequences of AI, Countries all over the world have rapidly commenced quintessential efforts to enact legislations and policies to regulate AI and specific AI technologies.
The article however shall explore the current legal regulation on Artificial Intelligence (AI) in Nigeria by identifying major approaches of Nigeria Laws on AI – from whether or not an AI can own an Intellectual property right, to the civil liability for damages caused by AI and the criminal liability of AI, if any.
CAN AN ARTIFICIAL INTELLIGENCE (AI) OWN AN INTELLECTUAL PROPERTY (IP) RIGHT IN NIGERIA?
The answer is in the Negative. As at now, The Nigerian Intellectual Property Laws are wholly human centric like most existing IP Laws, the Nigerian Patents and Designs Act vests the right in a patent in a statutory inventor i.e a person, and the Nigerian Copyright Act also ties the concept of authorship to personhood i.e an individual who is a citizen of, or is domiciled in Nigeria; or a body corporate incorporated by or under the laws of Nigeria.
Notwithstanding the fact that the Nigerian Copyright Act extends copyright protection to literary works defined to include computer programmes (software) irrespective of literary quality, it doesn’t at any point whatsoever envisage an instance where AIs or non-human creation would enjoy protection or where non-human authors could be vested with any rights.
I am of the opinion that steps should be taken in Nigeria to find a middle ground thereby enacting legislations that will enhance vesting machines with legal status and ownership rights, and devising means to accommodate and protect machines’ intellectual property without undermining the investment in AI and AI technologies by humans who feeds the AI with data which enables the AI to go on to invent based on the instructing contained in the algorithm(s) on which it is running. This is because, ‘what happens to the patent system when AI becomes completely independent and begins to make random inventions that are, by current standards, unpatentable? In whom would ownership reside when an AI algorithm develops a novel method of creating something like generating electricity? Who would be liable where an AI technology infringes on the IP rights of a human being?’etc.
CIVIL LIABILITY FOR DAMAGES CAUSED BY ARTIFICAL INTELLIGENCE (AI) IN NIGERIA
The categories of juristic persons who may sue or be sued under Nigerian laws include:-
- natural persons i.e human beings;
- companies incorporated under the Companies and Allied matters Act;
- corporations aggregate and corporations sole with perpetual
- certain unincorporated associations granted the status of legal personae by law such as:
- registered Trade Unions;
- partnerships; and
- friendly societies or sole proprietorships.
Notwithstanding the fact that currently the most common school of thought on the issue of the liability of AI, is that it is a “thing” or “product” that has no legal personality and cannot be personally responsible for its actions or a “person”
The Nigerian courts will uphold, as always, the fundamental maxim in the administration of justice that stipulates as follows, “ubi jus ibi remedium” meaning, “where there is a wrong there is a remedy”. Hence, where there is no remedy provided by common law or statutes, the courts have been urged to create one. The court cannot therefore be deterred by the novelty of an action.
For instance, anyone that has suffered loss or injury as a result of AI has several options for asserting claims for compensation against the manufacturer, owner, keeper, user, network provider, software provider, etc., under general torts law, contracts and statutes as the case may permit.
In addition, the Law Reform (Torts) Law of Lagos State creates a statutory cause of action by imposing strict liability on manufacturers of defective products and stipulates that a manufacturer or producer, importer, supplier or retailer is liable for damage caused wholly or partly by a defective product.Therefore, anyone that has suffered loss or injury as a result of AI has several options for asserting claims for compensation against the manufacturer, owner, keeper, user, network provider, software provider, etc., under general tortslaw, contracts and statutes as the case may permit under the Nigerian laws of tort.
CAN AN (AI) ARTIFICIAL INTELLIGENCE ENTITY BE SAID TO COMMIT A CRIME OR BE HELD CRIMINALLY LIABLE UNDER THE NIGERIAN CRIMINAL LAWS?
The answer to the question is in the Negative. This is mainly due to the word ‘person(s)’ in Nigeria Criminal Laws defining offences and setting out punishments.
There are provisions of the criminal code Act that evokes the notion of Criminal liability in Nigeria, some of which include Section 7, 22, 23, 28, 30 and chapter 5 of the Criminal Code Act, also, Section 36(5) of the Constitution of the federal republic of Nigeria. To Start with, Section 36(12) of the Constitution of the Federal Republic of Nigeria clearly uses the word‘ person’ in enshrining one of the principles of legality that must be considered before anyone is tried or punished for any alleged or purported criminal offence. This shows that it is a sine qua non that
before criminal liability is ascribed, it must be certain on whom the imputation is being made. Artificial Intelligence entities are not anywhere in Nigerian criminal laws recognized as having legal personality to be subjects of the law.
Furthermore, under the Nigerian Jurisprudence adopted from the Common Law, there are two elements or ingredients for fixing criminal liability which are Actus Reus (the guilty act) and Mens Rea (the guilty mind) and generally, once one element is missing, there shall be no criminal liability. Mens rea simply means to have ‘a guilty mind’ and the actus reus literally means ‘guilty act’ and generally refers to an overt act in furtherance of a crime. The above elements thereby introduces the question, ‘Do AIs have mental capacity so as to be held liable for an offence?’.
It is generally believed that machines are excluded from criminal liability for lack of mental capacity to know that the nature of their act is one that would result in an offence (since it is the programming of the maker or command of the user and not theirs) or to form or have general or specific intent (since it can be argued that machines do not know good or bad except the commands given it). Thus, the mental element to make them criminally
liable is missing.
Conclusively, Nigeria has to close the growing gap between emerging technologies and its Laws. We need express policies that will meet up rapid advancing technologies emerging under the fourth industrial revolution, consequent upon which Nigerian legislators and policy makers are urged to consider enacting, reviewing and adjusting various laws to meet up and regulate technological trends and the new reality. Surviving the future however depends on bringing technologist and policy makers together because AI is one of the technologies that need policy oversights to make.
Samson dada Esq. Writes from Lagos. He can be reached at firstname.lastname@example.org
Section 2 of the Patents and Designs Act, Chapter 344, Laws of the Federation of Nigeria 1990
 Section 2 of the Copyright Act, Cap C28, Laws of the Federation of Nigeria 1990
Section 51 of the Copyright Act, Cap C28, Laws of the Federation of Nigeria 1990
See Fawehinmi v. Nigerian Bar Association (No.2) (1989) 2 NWLR (Pt.105) 558; Iyke Med. Merch. v. Pfizer (2001) 10 NWLR (Pt. 722) 540
 CIL Risk & Asset Mgt. Ltd. v. Ekiti State Government (2020) 12 NWLR (Pt. 1738) 203; Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828 Orianzi v. A.-G., Rivers State
(2017) 6 NWLR (Pt.1561) 224; Omoyinmi v. Ogunsiji (2008) 3 NWLR (Pt. 1075) 471
Chapter L82 of the Laws of Lagos State 2015
 ORAEGBUNAM & UGURU: Artificial Intelligence Entities And Criminal Liability: A Nigerian