Driving into the future: Regulating Autonomous Vehicles

Driving – or the controlled operation and movement of a vehicle – is not an overwhelming task for humans. But what goes into the mechanics of driving is a complex operation of vehicle controls while constantly monitoring surroundings. This is in fact a mammoth task and machines have been limited to driver-assisted roles for decades. With recent developments in software and artificial intelligence (AI), we could be seeing self-driving vehicles plying on Indian roads within the decade. Autonomous vehicles (AVs), as they are also known, can be categorized broadly along a spectrum of six levels of autonomy, 0 being no autonomy and 6 being full autonomy of the vehicle. Level 3 autonomy vehicles have begun gaining traction in India. Driver-assist systems like cruise control, lane departure warnings, and advanced driver assistance systems (ADAS) are already currently being offered in vehicles.

But getting AVs of a higher autonomy grade onto the road is not going to be easy, as the technology faces numerous challenges ranging from socio- and political concerns to questions of legality, the latter of which is the focus here.

The legal issues surrounding AVs can be divided into two broad categories. The first relates to the intellectual property (IP) around the technology. Semi-autonomous vehicles utilize driver-assist and monitoring systems based on computer software, and even fully autonomous vehicles use software to implement algorithms and AI to understand the environment around the vehicle. All these elements fall within the scope of Section 3(k) of the Indian Patents Act, 1970. This provision says that mathematical methods, business methods, computer programmes per se and algorithms are not considered patentable inventions. This provision is yet to be fully tested in Indian courts, particularly as regards the interpretation of the word “per se” in the law (which was added by a 1999 amendment to the Act), which could extend to allowing patentability based on the technical effect caused by such programs or algorithms. AV-related patents would arguably be permissible, subject to meeting the requirements of Section 3(k). For example, Indian patent application IN339462, for a driver assistance system and methods was granted based upon a demonstration of technical advancement and practical application and not excluded as an algorithm or computer program. Data shows that over 1800 AV-related patents have been filed in India in recent years (2020-2022), and this number only promises to increase.

The second category of legal issues relates to the regulation of the use of AVs. The primary law in the domain is the Motor Vehicles Act, 1988. Although recently amended in 2019, the law on motor vehicles does not anticipate the licensing or use of autonomous vehicles. In the absence of a proper legal framework, a host of questions follow, particularly around liability relating to AVs, as who will be responsible in an accident situation. Debates in other jurisdictions are at a more advanced stage than in India, examining whether it will be the assist/autonomous system or the driver/owner of the vehicle who will be liable for such accidents. In the US, accidents involving self-driving cars or operating in autopilot mode have invited lawsuits against the respective vehicle manufacturers, but definite conclusions and precedents are yet to be arrived at. In India, the existing law follows the “no-fault” principle (where a person is liable even if there was no negligence on their part, and even if due care and caution was taken): this could be one route that the regulation takes here.

AVs will invite privacy debates too. While on the road, sensors onboard an AV will go through enormous amounts of data regarding to both the environment and vehicle occupants, in order to feed the algorithms that operate the vehicle. Connected AVs will be vulnerable to cyber-attacks, malware or hacking by third parties. Regulation of the data and protection against cyber-attacks is another issue that will need to be addressed.

Advancements in AVs are happening at breakneck speed, and like their international counterparts, domestic automobile manufacturers are also dipping into this space. To exploit its full potential, though, laws around IP, regulation of the use of AVs, and data protection, will need to be amended to allow this technology to take off in India. The law is always two steps behind new technology, but there is a huge incentive for India to play catch up quickly, for AV technology could have valuable solutions for the country’s long-standing road safety issues.