Pinning Down an Octopus:Towards an Operational Definition of AI Systems in the EU AI Act

This article examines the recently adopted EU AI Act, which lays the groundwork for AI regulation in the EU. We argue that the current problem definition for AI regulation is mainly conceptual, establishing jurisdictional authority; however, this definition alone is insufficient for effective AI regulation in practice. To contribute to discussions on future amendments to this regulatory framework, we propose an operational framework for the regulation of AI. We argue that defining AI systems should focus on their immutable, rather than mutable components. Much like the proverbial attempt to define an octopus—where one should not focus on mutable characteristics such as the colour and shape of its limbs, but rather on its immutable features (every octopus has one head, three hearts, and eight limbs, regardless of the colour and shape which do change over time)—the definition of AI systems should similarly have at its core the characteristics that do not change over time. Our framework, therefore, decomposes the development and use of AI products into three main components that enable adequate problem structuring: (1) decision models, (2) data, and (3) interface design. Within these components, we identify nine specific issues that warrant focused regulatory attention if we are to uphold the fundamental principles and values derived from the broader EU institutional framework, the values set out in the EU AI Act itself, and the traditional rationales—both social and economic—for regulatory intervention. Comparing the current EU AI Act with our proposed framework, our analysis reveals and discusses a number of areas where the current EU framework for the regulation of AI could be amended.