Source: Oxford Business Law Blog

The Oxford Business Law Blog discusses a critical tension between intellectual property law and the effective regulation of artificial intelligence. The post argues that the broad protection of AI algorithms and models as "trade secrets" is creating a significant barrier to transparency and public oversight. While companies have a legitimate interest in protecting their proprietary technology, this legal shield allows them to operate "black box" systems without meaningful scrutiny from regulators, academics, or the public. This lack of oversight can conceal a host of problems.

The article contends that this secrecy could potentially undermine the objectives of major regulatory frameworks like the European Union's AI Act. For regulations to be effective, authorities need the ability to audit and assess high-risk AI systems for compliance with safety standards, fairness, and non-discrimination principles. However, if companies can refuse to disclose key information about their models by claiming trade secret protection, such audits become superficial or impossible. This creates a scenario of "secrecy without oversight," where the potential for algorithmic bias, security flaws, and other societal harms remains hidden, prioritizing corporate secrecy over public accountability and safety.