Perspectives for Open Source AI

The world’s first most comprehensive law regulating artificial intelligence, the EU Artificial Intelligence Act, has been enacted in June 2024 and entered into force in August 2024. The AI Act aims to provide transparency and ensure safe use of AI systems by introducing obligations and requirements for developers and deployers based on the risk posed by AI systems. Despite the long legislation process that launched in 2020 and multiple negotiations, the final version of the Act includes a number of controversial and arguable provisions that undermine both the concept of open source and the future of open source AI systems. Notoriously, the AI Act includes an exemption for “AI systems released under free and open source licenses” (Article 2(12)), however it does not provide a precise definition of such systems, thus incentivizing the creation of “openish” AI systems. Such approach taken in the first framework AI regulation with extraterritorial effect raises concerns both in the legal and IT circles, especially after the release of the Open Source AI Definition by the Open Source Initiative in October 2024. This research paper provides a critical and detailed analysis of the provisions of the EU AI Act on open source AI systems and aims to develop suggestions on filling in the legal gaps in the AI Act covering open source AI. This paper further examines the legislative initiatives covering open source AI systems in the USA, particularly California, and China and compares their legal approaches to promoting open source AI projects.