Investigator: Amedeo Rizzo

Abstract:
In the field of AI regulation, harmonized standards prove necessary to shape the obligations for AI users in accordance with the current levels of scientific knowledge and technical capability. In this sense, the European Commission, following the introduction of the EU AI Act, has initiated a process to reform the EU standardization strategy in multiple areas of the internal market, among which, artificial intelligence. In the US, the sudden repeal of Biden’s Executive Order on Safe and Trustworthy AI calls for a new definition of the US standardization strategy that aligns with the intentions of the current Administration.

In this uncertain regulatory context, AI standardization is progressively growing as one of the areas of greatest interest for states and international organizations, due to the major role that standardization could play in the geopolitical race of AI innovation. This paper provides a comparison of the EU standardization strategy and the US standardization strategy in the area of AI regulation. The focus of this comparison rests on the distinction between a “centralized” standardization strategy, which describes the EU approach to standardization strategy, and a “market-based” standardization strategy, which has been adopted by the US. After examining and comparing these two approaches, this paper illustrates the legal implications of different standardization approaches in the field of AI.

On the EU side, this article relies on the recent development in the case-law of the CJEU concerning the relationship between harmonized standards, copyright protection, and public interests, with reference to case “C-588/21 P, Public.Resource.Org and Right to Know v Commission and Others”, decided on 05/03/2024. On the US side, this article addresses the main implications of a market-based standardization strategy in terms of competition and regulatory compliance. Building on this analysis, the paper discusses how both the European and American legal systems could benefit from a “hybrid” standardization strategy that mixes, both, market solutions and central oversight in the development of AI standards.”