Intellectual Property Practice Group 4th Industrial Revolution and Autonomous Vehicles: Foreign Legislations on Autonomous Vehicles (Part II) 1. INTRODUCTION The Korean government has selected and actively supported autonomous vehicles as one of its nine National Strategic Projects with the aim of commercializing autonomous vehicles by 2020. However, for autonomous vehicles to run on real roads, legal and systematic preparation is necessary to address various issues ranging from technological issues (such as performance and safety) to compensation for damages during accidents. Some advanced nations with automated driving technologies, such as the U.S. and Germany, are in the process of establishing legislations concerning autonomous vehicles which do not need the driver’s intervention. As a follow-up to our previous newsletter “Current Status of Autonomous Vehicles”, we introduce the recent trends in the legislations on autonomous vehicles of advanced nations, including the U.S. and European nations, in this Article. 2. INTERNATIONAL LEGISLATIVE TRENDS (applicable to Europe) A. 1968 Vienna Convention on Road Traffic of the UN Most EU nations have ratified the “Vienna Convention on Road Traffic” and enacted laws to implement the Convention. These nations regulate autonomous vehicles in accordance with such laws. Previously, Article 8(5) of the Convention had stated that “every driver shall at all times be able to control his vehicle”. However, ever since Article 8(6) was inserted as follows, partial autonomous driving has been allowed (amended in March 2014 and effectuated in March 2016). Vehicle systems which influence the way vehicles are driven and are not in conformity with the aforementioned conditions of construction, fitting and utilization, shall be deemed to be in conformity with paragraph 5 of this Article and with paragraph 1 of Article 13, when such systems can be overridden or switched off by the driver. (Source: Amendments to the 1968 Vienna Convention on Road Traffic, March 3, 2016) The foregoing Amendment has enabled test driving and commercialization of autonomous vehicles in countries that are parties to the Vienna Convention (72 countries), i.e., most EU nations (such as Germany, France and Italy), Russia and the U.S. (Korea is not a party). B. Plan for Amendment of International Safety Standards regarding Automobiles (UN Regulation) Since December 2014, the UN World Forum for Harmonization of Vehicle Regulations (UN/ECE/WP29) is in the process of revision to increase the speed limit for Intellectual Property Practice Group Automatically Commanded Steering Function (“ACSF”), i.e., a core function of autonomous vehicles (the current speed limit for ACSF under international safety standards is 10km/hour; UN Regulation No. 79). “ACSF” is a function that allows a vehicle to maintain or change the driving route itself without the driver tampering with the steering wheel. In November 2012, the UN World Forum for Harmonization of Vehicle Regulations (UN/ECE/WP29) adopted manufacturing standards for the Advanced Emergency Braking System (“AEBS”) (UN Regulation No. 131), which is expected to be mandatorily implemented in all new cars starting from November 2018. “AEBS” is a function that automatically stops the car when the driver fails to act on the warning that it is nearing towards a moving or stationary vehicle. 3. CURRENT STATUS OF GERMANY’S LEGISLATION A. Legislative Trends Germany enacted a law to implement the “Vienna Convention on Road Traffic” in December 2016. The proposed amendment to the “Road Traffic Act” of Germany that allows autonomous vehicles to run on public streets was approved by the German Bundesrat on May 12, 2017 and became effective as of June 21, 2017. Germany agreed to reexamine and amend such Act in 2019 in consideration of the rapidly advancing automated driving technologies. B. Major Issues of the Amendment to the Road Traffic Act Allowable scope of automated driving Highly and fully automated driving systems are allowed if they comply with international conventions and are used in accordance with intended purposes (however, driverless automated driving is not permitted). Cases where a driver is required to directly operate the vehicle - The driver should immediately take control of driving if the automated driving system requires the driver’s direct intervention or if the driver was or may become aware that using automated driving system is impossible, such as in the case of a tire failure. - Requests from the system should be transmitted to the driver through a recognizable means, including visual or acoustic means. Liability for accidents - If an accident occurs due to a system error while the automated driving system controls the driving, the manufacturer should be held liable. - The maximum limit of the damages should be EUR 10 million for personal injuries and EUR 2 million for property damages. Obligation to install black box for - All automated driving systems should have a black box installed to identify the responsible entity in the case of an accident. - The black box records three types of information: (i) whether the Intellectual Property Practice Group accountability system or the driver was in control of driving at the time of accident; (ii) whether there was a malfunction in the vehicle; and (iii) when and where the vehicle was at the time of accident. - The black box data should be retained for six months in principle, and after an accident, the period is extended to three years. 4. CURRENT STATUS OF THE U.S.’ LEGISLATION A. Legislative Trends Since Nevada enacted the first law regarding automated driving in 2011, 20 states in total, including California, Florida and Michigan, have enacted such laws. The federal government announced the “Federal Automated Vehicles Policy” on September 20, 2016 and as of July 26, 2017, the House of Representatives is considering the proposed enactment of the “Self Drive Act” which addresses cybersecurity and personal information issues in automated driving. B. Federal Automated Vehicles Policy of the U.S. Federal Government (1) Basic Trends The Federal Automated Vehicles Policy recommends standardization of relevant regulation on automated vehicles among states and provides industry standards to ensure that automated vehicle systems will be safely operated under real-world conditions. The Policy is not definite or final and it will be amended on a regular basis through public feedback on technological developments. However, the National Highway Traffic Safety Administration (“NHTSA”) is considering establishing components of this Policy as legislation or as legally binding regulation. (2) Division of Regulatory Responsibility for Autonomous Vehicles The Policy divides regulatory responsibility for autonomous vehicles between federal and state authorities: the federal government is responsible for regulations on automobiles and automobile parts, whereas the state governments are responsible for regulations on human drivers and driving operations. (3) Performance Guidance for Autonomous Vehicles 1) Levels of Automation The Guidance adopts the levels of automation (i.e., six levels) provided by the Society of Automotive Engineers (SAE) in 2013. SAE SAE Execution Monitoring of Fallback NHTSA NHTSA Intellectual Property Practice Group Level Definition of Steering and Accelerati on/Decele ration Driving Environment Performance Level Definition 0 No Automation Driver (human) Driver Driver 0 No Automation 1 Driver Assistance Driver Driver Driver 1 Function Specific Automation 2 Partial Automation AI system Driver Driver 2 Combined Function Automation 3 Conditional Automation AI system AI system Driver 3 Limited Self-Driving Automation 4 High Automation (with a driver) AI system AI system AI system 4 Full SelfDriving Automation (no driver) 5 Full Automation (no driver) AI system AI system AI system The Guidance names autonomous vehicles as “Highly Automated Vehicle (HAV)” and such term represents SAE Levels 3-5 vehicles equipped with automated systems that monitor and reflect the driving environment. 2) Vehicle Safety Assessment Standards The Policy defines 15 safety assessment areas based on the six levels of automation. Safety Standards Description Data Recording and Sharing Event, incident and crash data during the test should be collected and documented. Privacy The driver should be aware of which data are collected and retained (transparency) and a vehicle user should be allowed to refuse the collection of personal information, including biometric and driver behavior data (choice). System Safety Vehicle safety system should be verified by an objective external entity and the vehicle should prove that it is capable of safe operation even where there are technical errors. Vehicle The security system which may protect the vehicle against Intellectual Property Practice Group Cybersecurity cybersecurity threats should be in place, the manufacturer should record security-related programs and assessments thereof and such information should be shared within the industry. Human Machine Interface HAVs should be able to immediately convey information on pedestrians, other vehicles and itself to the driver. Crashworthiness HAVs are expected to meet NHTSA’s crashworthiness standards and should exercise and demonstrate due care to provide countermeasures that will fully protect all occupants in any case of accident. Consumer Education and Training Consumer education and training programs are imperative for operating HAVs on real roads. Registration and Certification Description of all software updates related to autonomous driving and a new driverless driving function should be reported to NHTSA. Post-Crash Behavior The manufacturer should validate that an HAV is safe when it is reinstated into service after being involved in a crash. In other words, if sensors or critical safety control systems are damaged, the vehicle should not be allowed to operate in HAV mode. Federal, State and Local Laws HAVs should comply with state and local laws and practices that apply to the operators. Ethical Considerations Strategies or programs for responding to situations that require ethical considerations should be reported to the government. Operational Design Domain (ODD) The manufacturer should prepare an operational design domain (“ODD”) that defines and documents the specific operating domain(s) in which the HAV system is designed to properly operate. * “ODD” is a manual that defines or specifies functions or systems that operate in each different situation, e.g. different roadway types, speed range, and environmental conditions. Object and Event Detection and Response (OEDR) How an HAV detects objects and events and responds appropriately to them should be validated. The OEDR capability should be divided into normal driving and crash avoidance capability and thereby validated. Fall Back HAVs should have a documented process to minimize the risks at the time of emergency, such as technical malfunctions while driving. Validation Methods Performance test approaches for HAVs should include a combination of simulation, test track and on-road testing. C. State Law – California (1) Vehicle Code (Div. 16. 6. Section 38750) The manufacturer should obtain a test driving permit annually from the Department of Motor Vehicles (DMV) and only those manufactures with appropriate qualifications should be allowed to conduct test driving. The driver should be seated in the vehicle’s driver seat and always monitor his/her Intellectual Property Practice Group operation to ensure that he/she may take the manual control of the vehicle in case of an emergency. Before the test driving, the manufacturer should purchase self-insurance of which the net worth is not less than five million dollars ($5,000,000) and submit the certificate of such self-insurance to the DMV. The manufacturer conducting the testing (i.e., operating under the testing permit) should report any accident that occurs under the automated driving system within ten days of such accident. Relevant data in case of disengagement of autonomous mode due to system errors or difficulties in autonomous driving should be retained and reported on a regular basis. If this legislation conflicts with other laws, the federal regulations enacted by NHTSA should prevail. (2) California Code of Regulations (3rd draft) This Guideline is a guideline for interpreting the foregoing Vehicle Code. The first and second drafts of this Guideline were released on December 2015 and September 2016, respectively, and the third and final draft was announced on March 10, 2017 and is being amended based on public feedback. The noticeable feature of this third draft is that it provides for “completely driverless vehicles (Level 5 of SAE’s level of automation).” 1) Major Details of Testing of Autonomous Vehicles (Article 3.7) Definition of Autonomous Vehicle - Any vehicle equipped with technology that can perform the driving task without the active physical control or monitoring of a human driver - Vehicle equipped with technologies that meet the definition of Levels 3, 4 and 5 under the SAE international classification system for autonomous vehicles. Requirements for Manufacturer’s Permit to Deploy Autonomous Vehicles - The manufacturer should purchase an insurance of which the net worth is not less than five million dollars ($5,000,000) and submit such insurance certificate to the DMV. - Prior to the actual deployment on public roads, the manufacturer should submit a certificate for an internal test conducted under the conditions like those of real roads. - Safety of the vehicles should be assessed in accordance with the “Performance Guidance for Automated Vehicles” in the Federal Automated Vehicles Policy. - The period of permit should be extended from one year to two years. - Autonomous vehicles without a driver (“completely driverless vehicles”) should be permitted under additional conditions, including limiting operation to areas of operational design domain and enabling communication link between the vehicles and the remote Intellectual Property Practice Group operator. Conditions for Driver - The driver should be able to immediately take physical control of the vehicle. - The driver should not drive the vehicle without being designated by the manufacturer to drive the autonomous vehicle or without a driver’s license. 2) Major Details of Deployment (Article 3.8) Deployment - Means operation of an autonomous vehicle on public roads by members of the public who are not employees, etc. of a manufacturer or other testing entity. Liability for Accidents - SAE Level 3 vehicles: If the driver is in control of the vehicle or is driving in areas outside of the operational design domain, the driver should be held liable. The manufacturer should be held liable for accidents that occur in the autonomous mode within the areas of operational design domain. - SAE Level 4 or 5 vehicles: The manufacturer should be held liable for accidents that occur in areas of operational design domain. Information Security - All information collected during autonomous driving, including personal information, should be disclosed to the driver. - Any information that is unnecessary for the safe operation of the autonomous vehicle should be anonymized. - If the information is not anonymized, the manufacturer should obtain the written approval of the driver. 5. CONCLUSION The advent of autonomous vehicles is expected to usher in various changes not only to the automobile industry but also to a wide range of sectors, including road traffic, insurance and security areas. Considering that the commercialization of autonomous vehicles is impending due to the significant technological advancements, many countries are realigning their laws and systems concerning safety accidents, insurance and security. In this context, Korea should refer to such foreign legislative efforts so that it can appropriately improve its own laws and systems. The next newsletter will discuss the status of Korea’s legislation and plans for improvement. Intellectual Property Practice Group: Won Il Kim, Kwang Wook Lee and Keun Woo Lee
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