Desafíos actuales de la Inteligencia Artificial

Generative AI content misuse and the DSA 87 Most importantly, it prompts questions about the necessity and form of a regulatory in- tervention. The form that such regulatory intervention takes must, however, be based on an examination of existing legal frameworks and their capacity to effectively address the problem at hand. While the AI Act has now been published in the Official Journal of the European Un- ion 14 , it does not primarily address issues related to content. It is true that art. 50 of the EU AI Act attempts to mitigate certain aspects of synthetic content 15 , but this is not a comprehensive solution to content-related challenges. Conversely, one might turn to the Digital Services Act (henceforth DSA), which encapsulates the more established EU framework with regards to user-generated content and the role of the digital infrastructure that is involved in the process of storing and disseminating it. This paper will primarily focus on the relationship between the DSA and Generative AI tools that facilitate the production of user-generated content. Specifically, it will explore whether Generative AI applications can be regulated under the safe harbour provisions of the DSA. To achieve this objective, the paper is structured into two parts. The first part will present the current literature discussing the applicability of the DSA to Generative AI tools. The second part will critically assess the positions expressed in the current discourse and will endeavour to suggest alternative avenues of interpretation. The conclusion will summarise the findings and suggest directions for future research. 2. GENERATIVE AI AND THE DSA: A SHORT LITERATURE REVIEW. Legal literature has already begun to address the issue of whether Generative AI ap- plications can be included within the regulatory scope of the DSA. This should come as no surprise, given that the risk profile of Generative AI applications, as established in the introduction of this paper, aligns in many respects with the regulatory goals of the DSA, particularly regarding content moderation. This section aims to categorise and present the various opinions expressed by different commentators. The subsequent part of this paper will critically assess the opinions presented in this section. 14 Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence and amending Regulations (EC) No 300/2008, (EU) No 167/2013, (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1139 and (EU) 2019/2144 and Directives 2014/90/EU, (EU) 2016/797 and (EU) 2020/1828 (Artificial Intelligence Act) Text with EEA relevance [2024] OJ L1689/12. 15 The EU AI Act, through art. 50, aims to regulate part of the problem of deep fakes and AI Generated content by mostly imposing transparency obligations throughout the AI value chain. For a more detailed outlook see ŁABUZ, Mateusz, “Deep fakes and the Artificial Intelligence Act—An important signal or a missed opportuni- ty?”, Policy & Internet, Online Version of Record before inclusion in an issue available at https://onlinelibrary. wiley.com/doi/full/10.1002/poi3.406 (last access 30.07.2024).