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Drones – Future of Aviation Law?

Interference of Public Law in Private Law

by Piotr Kasprzyk (Author) Anna Konert (Author)
©2023 Monographs 286 Pages
Series: Ius, Lex et Res Publica, Volume 24

Summary

Drones, like any new technology, give rise to many challenges that require discussion and solutions. Their integration with the manned aviation system is one of the most important challenges for the future of aviation and requires the development of regulations regulating related issues to their use. As part of the monograph, the current safety regulations in civil aviation were analyzed in terms of assessing their application to drone opera-tions and analyzing of all those issues that should be taken into account when creating legal regulations for the use of drones. In addition, an in-depth analysis of issues such as the protection of the right to privacy, protection of property rights, liability for damage caused by drones, liability insurance was made.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Table of Contents
  • Acknowledgement
  • Introduction – Drone as new technology. Drone law
  • Chapter 1 Terminology and classifications
  • Chapter 2 Development of regulations in the field of unmanned aviation safety: Differences between manned and unmanned aviation
  • Chapter 3 The development of international standards in the field of safety of unmanned aviation
  • Chapter 4 Public law regulations in the EU and their impact on national regulations
  • Chapter 5 Key issues regarding the safety of UAS operations (including those related to investigating accidents)
  • Chapter 6 Drones as aircraft – finding solutions to civil liability cases
  • Chapter 7 Drones as a new technology – finding solutions to civil liability
  • Chapter 8 Privacy and data protection
  • Conclusions
  • Bibliography
  • Index
  • Series Index

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Acknowledgement

We would like to express our gratitude to Mateusz Kotliński for the guidance and instruction he provided us throughout our book.

The opinions and conclusions expressed herein are those of the author. They are not intended to and should not be thought to represent official ideas, attitudes, or policies of the International Civil Aviation Organization (ICAO), the ICAO Council, or other bodies of the Organization, or any ICAO Member State(s).

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Introduction – Drone as new technology. Drone law

A decade ago, unmanned aircraft (UA) were talked about mainly in the context of their military applications. First, it was just reconnaissance missions. Then, UA were being used in combat scenarios, especially during the wars in Iraq and Afghanistan1. It seemed that development of unmanned aircraft and technological development on the modern-day battlefield were intertwined. Manned aviation was perfecting aircraft designs and the automation of aircraft systems and subsystems was progressing year after year. Satellite technology enabled the development of navigation systems, as well as better data transfer over long distances. Add to that was the miniaturization of equipment necessary to conduct, for example, remote observations from the air. At the end of the 1990s, American and Israeli armed forces began using UA systems for reconnaissance activities on a large scale. It was just a matter of time before they started using them as combat platforms. After the 9/11 attacks, the US military and intelligence agencies carried out the world’s first attacks using UA armed with laser-guided missiles. That was when the first unmanned aircraft systems designed for combat saw the light of the day. In the following years, the use of unmanned aircraft for so-called selective elimination drew many controversies, including legal ones2. Nevertheless, this new technology not only changed the modern-day battlefield, but also military doctrines. Along with these changes, it became difficult to separate technological progress from politics, as new technology allowed for combat operations to be conducted in a way that minimized risk to human life, leading to a lower, politically accepted threshold for the use of force3.

Today, we are seeing numerous civil applications for drones. There are solar-powered drones, which have giant wingspans and can be used as mobile Internet ←9 | 10→access points since they don’t need to land for months4. Medium-sized drones can be used in logistics and transport services, fleet management, electronic media, in the movie and entertainment industries and even in agriculture (in the inventory of crops, forests, animals, etc.). Moreover, drones can support local government units and municipal economies in areas including geodesy and spatial management, crisis management, public safety (urban surveillance, mass events, command systems support, atypical event detection, law enforcement support, search and rescue operations), infrastructure inspection (flood embankments, rivers, monitoring of critical infrastructure), construction inspections and support for logistics work in the construction sector, environmental protection (location and air quality check-ups, illegal landfill detection), ground and surface waters inspections, transport management support, etc. And finally, drones can also be the size of an insect. For example, scientists at Harvard have created miniature RoboBees, which use so-called swarm intelligence to search for victims of natural disasters, pollinate plants, monitor road traffic or enable research to be carried out in environments too hostile for humans.5

The general development of unmanned aircraft has been closely related to technological development in many other fields, but the popularization of lithium-ion batteries was a key factor for its widespread expansion. This solution enabled the construction of electrically powered flying devices, which, combined with device miniaturization and satellite navigation positioning, led to the popularization of the new technology. The first unmanned devices used by civilians brought on the development of the very first legal regulations concerning their use. These regulations focused on UA operations conducted within an operator’s visual line of sight, and applied to aircraft weighing less than 25 kg. Denmark was one of the first countries to adopt such regulations in 1986,6 when UA were commonly referred to as consumer drones. However, contrary to their name, they were often used for commercial purposes, for example for filming videos or taking photos. Tech companies design and manufacture such devices on a mass scale. The Chinese company DJI turned out to be particularly successful in this segment, taking a 70% share in the global consumer drone market within the span of just a couple of years7.

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People have been working on more complex UA systems for over a decade. These systems are intended to perform operations beyond an operator’s line of sight and are designed with commercial services in mind, including the transport of goods and the provision of services for the public sector. For example, at the beginning of 2020, trade media informed about UA test flights being carried out in the area of cargo shipping (Japan Airlines8), search and rescue operations for British state services9, or stratospheric UA flights (pseudo-satellites)10.

Numerous reports indicate that drones will gradually replace “traditional” (manned) aviation in such fields as aerial photography, search and rescue operations, transmission network monitoring or precise aerial application activity11. The costs of using unmanned systems are incomparable to those incurred through manned aviation. Various services can be provided both remotely, i.e. with an operator (pilot) remotely controlling a UA, or autonomously in a pre-programmed manner without an operator’s (pilot’s) intervention or with their role simply limited to system supervision. Some believe that unmanned aircraft systems could result in the creation of completely new types of services which would stem from their ability to operate at very low altitudes and in urban areas. They could be used to provide emergency medical services12 or deliver parcels. Some groups are also working on replacing satellites with solar energy-powered UA operating at very high altitudes (HAPS; High-Altitude Pseudo Satellite), which are capable of carrying out long-term missions without having to land to refuel. Such platforms can be used, for example, to transmit ICT data.

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It is estimated that the changes brought about by this new technology will be comparable to those that took place in the service sector after the widespread development of computer technology, the Internet and mobile phones13.

The dynamics of UA technology development are best illustrated by economic data and forecasts. It is estimated that the global value of the civil application sector of the drone market in the years 2017–2026 will amount to nearly USD 73.5 billion, including USD 3.3 billion in Poland14. However, it is quite difficult to rely on data from estimates and forecasts as these tend to change. For example, according to forecasts prepared at the request of the European Commission in 2016, it was estimated that there would be around 7 million consumer drones and 400,000 specialized drones in use in EU countries by 205015. Meanwhile, according to the data provided by the European Commission in 201916, the total number of consumer drones around the world will reach approx. 35 million in 2022, 25% of which will be in Europe. At the same time, it is estimated that the number of specialized drones (used in BVLOS operations) will reach 9 million worldwide by 2022.

Concrete data on the number of UA and their users seems a lot more reliable than forecasts. According to conservative estimates from 2016, there were about 1–1.5 million consumer drones and about 10,000 specialized drones in the EU at the time17. It is worth noting that as new EU regulations requiring the registration of operators of drones with a mass of over 250 g enter into force (in December 2020), these numbers regarding individual EU Member States will change. It will be possible to actually see not just estimates, but rather real-life data on the actual total number of drone operators and their devices.

For example, in the USA at the end of 2018, there were18:

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1. over 900,000 registered owners of so-called models, i.e. drones weighing up to 25 kg (55 lbs.) used for recreational or hobby purposes, estimating the number of such drones at over 1.25 million,

2. over 277,000 registered drones weighing up to 25 kg (55 lbs.) used for commercial purposes.

Based on the dynamics of UA registration in the US, the FAA forecasts that the number of models will increase to approx. 1.4 million registered devices by 2023. However, it is estimated that the number of drones (with a mass of up to 25 kg) used for commercial purposes could grow threefold and reach up to 835,000 (from today’s 277,000) by around the same time.

Interestingly, the categorizations of unmanned aircraft into consumer and specialized (adopted in the EU) and into model and commercial (adopted in the US) do not coincide. Moreover, consulting companies use different types of classification in their UA sales estimates.

Consulting firm Gartner estimates that there will be 500,000 drones sold worldwide in 2020. This would signify a 50% jump in sales compared to 201919. And this number is expected to reach 1.3 million in 2023. Experts also predict the construction industry to be the sector with the widest range of UA applications. One of the tasks that drones are being used for in this industry is BIM (Building Information Modeling). It is estimated that the total number of drones sold for monitoring construction work will increase from 141,000 in 2019 to over 510,000 in 2023. Subsequently, it is believed that UA will be purchased more and more often for purposes related to fire protection, public safety (police services), logistics services, or for the purposes of performing damage assessments in liquidation proceedings.

It is safe to say that UA technology has been developing very dynamically in recent years. Therefore, it can be argued on reasonable ground that, based on the number of UA in use and estimates on the industry’s development in the coming years, a new type of aviation activity has been created and requires strong regulatory action.

This publication was borne of research-based intentions – an attempt to show the framework of aviation law and to analyze and distinguish manned aviation regulations and define the scope of their application in unmanned aviation. However, an analysis of these regulations, as well as an observation of the ←13 | 14→technological development of unmanned aerial systems, led to one question – namely, are we on the brink of a new era in aviation law? An era that started because of the development of a new type of flying device? One thing is for certain – we still don’t know how UA should be treated (like next-generation flying devices or regular aircraft?) due to their specific characteristics, various types, range of sizes, methods of use, and means of control (such as through artificial intelligence systems, etc.).

The main research problem is establishing a legal classification for drones. This concept is understood in many different ways. On the one hand, drones are defined as unmanned aircraft. But on the other hand, some say they should be considered robots20. Public law defines UA as aircraft that fall within the scope of aviation law, and only sometimes need new, special regulations that go beyond the framework of traditional aviation law. However, from the point of view of private law, especially civil liability, classifying drones into one or another category is of great importance. This issue is part of a larger discussion on new technologies, including robotics, that has been ongoing for years. The main research thesis is that we are now facing the creation of a new “branch of law” which is the Drone law.

The pace of development of UA technology in recent years rightly gives grounds to say that we are dealing with disruptive technology21. The disruptiveness of this technology should be considered in two aspects. First, it creates new possibilities as UA are designed to carry out operations (in most cases) at very low altitudes and in a completely different manner than manned aviation. Second, the development of this technology necessitates its integration with manned aviation – particularly commercial transport, taking into consideration its statistically high levels of safety. This new technology can only be allowed to develop if it can be demonstrated that UA are capable of flying in the same airspace as manned aviation without jeopardizing the safety and efficiency of ←14 | 15→aviation as a whole22. Therefore, from a legal viewpoint, the safety of UA operations is the most fundamental issue in question, and should be looked into by authorities, but from a dual perspective. First of all, UA could engage in accidents and thus jeopardize the safety of people and property on the ground. Second, if a drone collides with a manned airplane, the safety of the passengers and crew members on board might be endangered. This publication addresses the issue of unmanned aircraft operation safety regulations and the issue of manned aviation safety regulations in the context of integrating the two.

It is based on an analysis of the ever-growing number of publications and studies regarding the development of unmanned aviation and its integration with manned aviation, relying mainly on documents published at an institutional level, including those published by public authorities performing a regulatory role. Such studies constitute as the basis for drafting new laws and regulations regarding UA operations.

The authors draw upon the growing number of scientific studies on new UA technologies, as well as on different aspects of its development, including regulatory (legal) considerations. Over the years, a wealth of scientific literature, including numerous post-conference studies, countless presentations, as well studies and reports compiled by various organizations, institutions, and private companies have been made available.

An analysis of the available material, the amount and degree of detail of which increases in proportion to one’s interest in the subject, leads to the following research questions in terms of safety of unmanned aircraft operations and the development of regulations in this field.

First off, what are the consequences of recognizing unmanned aircraft as aircraft? The term “aircraft” is central in aviation law and aviation safety regulations – regulations that, for over a century now, have assumed that there is always a crew on board any aircraft, and which only allow for the introduction of new rules if they ensure a current or higher level of safety. An unmanned aircraft, although it is also an aircraft, will not meet these requirements by design. So, what approach should be adopted regarding UA safety regulations? Should we just modify existing rules on manned aviation and adjust them to unmanned aviation? Or should we create completely new regulations dedicated to new types of operations, loosely based on those found in manned aviation?

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In order to answer these questions, it is essential to better understand the differences between manned and unmanned aviation operations. The possibility of carrying out operations without a crew on board results from the use of new technologies, many of which are already known in manned aviation. Automation, miniaturization, satellite navigation, and motion detection systems are, after all, used as solutions that raise levels of safety and efficiency in manned aviation operations. However, unmanned aviation operations differ so much that there is no point in talking about their safety without a sufficient understanding of their nature. Understanding technical, operational and organizational issues is also important since it is necessary to identify the challenges (and solutions) that affect the safety and effectiveness of UA operations, if only to assess whether the current state and availability of unmanned aviation technology allows regulators to precisely determine the safety requirements present.

The main research question of this publication in the scope of public law is whether UA operations can be treated equally alongside manned aviation operations from the point of view of aviation safety regulations? In other words, is an unmanned aircraft simply a new type of aircraft, or is it a more complex system, one of the components of which is an aircraft without a pilot on board?

The first possible take on this is that unmanned aircraft are a new type of aviation activity, so maintaining a uniform regulatory regime for aviation as a whole, including both manned and unmanned aircraft, is justifiable.

A second perspective states that the differences resulting from the lack of a crew on board are so far-reaching that unmanned aviation is a completely new type of activity in itself. Moreover, it is so different from manned aviation that it is necessary to create new safety regulations dedicated to this type of activity.

In both cases, it will be necessary to introduce amendments to existing aviation laws in order to allow for UA technology to grow. These amendments include air traffic regulations or the organization of airspace, which as of now limits UA operations to designated zones only and does not address the capability of carrying out operations at very low altitudes, in airspace in which manned aircraft simply do not operate.

What’s more, this publication seeks to identify the main issues related to the development potential of UA and their integration with manned aviation, focusing on the safety aspects of unmanned and manned aviation.

These issues are identified and clarified by analyzing safety regulations and documents that preceded adopting official laws. New technologies require new regulations, but their adoption is not an easy process and must be preceded, in most cases, by analyses, reports, studies, and conceptual and analytical documents. Oftentimes, the process itself is quite innovative – making some new ←16 | 17→technologies even more disruptive. However, we should bear in mind that aviation safety regulations are quite conservative. The introduction of any regulations other than existing ones (and their mitigation in particular) has to ensure the continuation of at least the current level of safety, if not better. Moreover, meeting most aviation safety requirements can be clearly assessed, since they are regulated in great detail in specialized documents that are based on good practice and research.

On the one hand, this publication focuses on the safety of UA operations on the assumption that safety is a priority and the purpose of safety requirements is to ensure the protection of the overarching values of human life and health. On the other hand, it deals with issues related to all kinds of human concerns posed by this new technology, as seen from the public’s viewpoint, i.e. issues related to the protection of the right to privacy or the processing of personal data, the protection of property, liability for damage, insurance, the protection of public security, the capability to carry out autonomous operations, as well as the use of artificial intelligence systems to support these types of operations.

Details

Pages
286
Year
2023
ISBN (PDF)
9783631891872
ISBN (ePUB)
9783631897027
ISBN (Hardcover)
9783631895276
DOI
10.3726/b20554
Language
English
Publication date
2023 (March)
Published
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2023. 286 pp., 1 fig. b/w, 1 tables.

Biographical notes

Piotr Kasprzyk (Author) Anna Konert (Author)

Anna Konert is a Professor of Aviation Law, attorney-at-law, Dean of the Faculty of Law and Administration, Director of the LL.M in Aviation Law, Director of Aviation Law and Professional Pilot Licence, Director of the Institute of Air and Space Law at Lazarski University in Warsaw, Director of the Lazarski Aviation Academy, Member of the Committee of European Air Law Association, and a former lawyer for Air France in New York’s office. Piotr Kasprzyk, Ph. D. in Law, Attorney -at-law and a Research Fellow at the Institute of Air and Space Law at Lazarski University in Warsaw, Poland. Dr. Kasprzyk is also the Head of the Airport Division of a new central airport for Poland (Centralny Port Komunikacyjny). He is also the former Vice-President for aviation standards of the Civil Aviation Authority in Poland, and a former plenipotentiary for air navigation standards at the Polish Air Navigation Services Agency. He is an active member of the European Air Law Association. Dr. Kasprzyk has 14 years of experience in Aviation Law and 22 years of experience in aviation as a private pilot. Anna Konert is Professor of Aviation Law, Attorney-at-law, Dean of the Faculty of Law and Administration, Director of the LL.M in Aviation Law, Director of LLB Aviation Law and Professional Pilot Licence, Director of the Institute of Air and Space Law at Lazarski University in Warsaw, Director of the Lazarski Aviation Academy, Member of the Committee of European Air Law Association, and a former lawyer for Air France in New York’s office.

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