Kenya encourages trade liberalization to promote fair competition, but the rise of artificial intelligence (AI) is creating unfair competition for incumbent businesses and AI solutions.
Competition improves consumer welfare because it forces companies to continually improve quality, innovate, invest in research and development, and lower prices.
Unfair competition involves unfair and deceptive trade practices that result in injury to another person's business.
As the use of AI solutions increases, excessive competition between AI and existing businesses may be counterproductive and negatively impact the business. How can businesses effectively compete with AI solutions and survive?
There is a need to enact some protectionist legislation in the relevant sector as excessive competition will lead to business closures and job losses, which will be bad for the economy in the long run.
Global AI legislation is an emerging legal trend, but there are many grey areas. One of the grey areas is how to enact protectionist laws after AI creates harmful competition. This is a tricky situation because the prevailing legal environment encourages liberalization and fair competition.
One of the biggest challenges in regulating AI is the fact that most laws apply to natural or legal persons, i.e. individuals or legal entities. This is why it has been difficult to apply laws such as intellectual property rights to AI.
AI cases of unfair competition have already occurred, including the infringement of intellectual property rights and trade secrets, such as AI creating new music from sampled beats without recognizing the rights of the copyright holder. AI could establish a dominant market position, leading to unfair competition.
Kenya’s current laws do not address unfair competition caused by AI. Kenya does not have a standalone AI law that is needed to protect consumers and businesses from the harmful effects of AI.
Some laws may allow some leeway. Unfair competition remains illegal, whether the result of AI or not. Intellectual property and data protection laws protect companies from unfair competition, even if it is generated by AI.
However, enforcement of the provision remains difficult as AI solutions are not recognized as people. The only respite is for the individual or persons who own the AI.
AI can also raise jurisdictional issues, especially if the AI solution is provided from another jurisdiction: the cyber world has no borders, making it difficult to enforce against violators.
I believe that where the owner of the AI is clearly identified and the damage caused by an AI solution is clearly identified, it may be possible to bring a civil lawsuit to stop the use of such AI.
In such cases, victims may file lawsuits against the companies or individuals that own the AI solutions in question, alleging damages that have clearly been caused to them.
For example, if an AI infringes a trademark, you can bring a trademark infringement lawsuit in the normal way.