According to Article 2(8) AI Act, the AI Act does not apply ‘to any research, testing or development activity regarding AI systems or AI models prior to their being placed on the market or put into service’. This exclusion is in line with the market-based logic of the AI Act, which applies to AI systems once they are placed on the market or put into service. For example, during the research and development (R&D) phase, AI developers have the freedom to experiment and test new functionalities which might involve techniques that could be seen as manipulative and covered by Article 5(1) (a) AI Act, if used in consumer-facing applications. The AI Act allows for such experimentation by recognising that early-stage R&D is essential for refining AI technologies and ensuring that they meet safety and ethical standards prior to their placing on the market.
As clarified in recital 25 AI Act, the AI Act aims to support innovation and recognises the importance of scientific research in advancing AI technologies and contributing to scientific progress and innovation. Article 2(6) AI Act therefore provides an exclusion for ‘AI systems or AI models, including their outputs, specifically developed and put into service for the sole purpose of scientific research and development’. For example, research into cognitive and behavioural responses to AI-driven subliminal or deceptive stimuli can provide valuable insights into human-AI interactions, informing safer and more effective AI applications in the future. Such research is permitted, since it is excluded from the scope of the AI Act, notwithstanding the prohibition in Article 5(1)(a) AI Act.
The exclusion in Article 2(8) AI Act is, however, without prejudice to the obligation to comply with the AI Act where an AI system is placed on the market or put into service as a result of such research and development activity.25 Testing in real-world conditions within the meaning of the AI Act26 is also not covered by that exclusion. For example, a municipality wishing to test facial recognition software using a RBI system in the streets during carn ival recruits volunteers to be identified by the system in real-world conditions. Because real-world testing does not fall within the exclusion of Article 2(8) AI Act, the planned testing must be fully compliant with the requirements for RBI systems in the AI Act , unless the system is tested in an AI regulatory sandbox or in accordance with the special regime for testing in real world conditions outside the sandbox, as provided for in Articles 60 and 61 AI Act.27
In any event, any research and development activity(including when excluded from the scope of the AI Act) should be carried out in accordance with recognised ethical and professional standards for scientific research and should be conducted in accordance with applicable Union law28 (e.g., data protection law that remains applicable).