The U.S. Copyright Office has published a report on the issues around copyright and artificial intelligence (AI). In the opening summary, the report states that the Copyright Office has “concluded that a new law is needed.”
At the beginning of 2023, the Copyright Office launched an initiative to examine copyright law and the rise of generative AI. The issues under consideration included copyright in AI-generated works and the use of copyrighted materials in AI training. As part of the process, the Copyright Office hosted public listening sessions and webinars. In addition, it published a notice of inquiry in the Federal Register in August 2023. As a result, the Copyright Office received over 10,000 comments by December 2023.
Publishing the report
The Copyright Office is publishing the results of its initiative in a report on copyright and artificial intelligence. However, due to the volume of information to be considered, the report is being issued in several parts. The Copyright Office published the first part of the report on 31 July 2024. Part 1 looks at the topic of digital replicas. A digital replica is defined as a “video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual.” The report also states it uses the terms “digital replicas” and “deepfakes” interchangeably.
Deepfakes – the good
Although the term deepfake has negative connotations, the Copyright Office acknowledges that digital replicas can have beneficial uses. The report cites examples including accessibility tools for people with disabilities, and “performances” by deceased or non-touring artists. Musician Randy Travis has limited speech function since suffering a stroke. However, he used generative AI to release his first song in over a decade.
Deepfakes – the bad
The Copyright Office also recognized the harms that arise from unauthorized digital replicas. In the film world, background actors have been replaced by digital replicas. Voice actors have also been replaced by AI-generated audio replicas. In addition, the report sets out three specific areas of concern. These are sexually explicit deepfake imagery, the use of deepfakes to commit identity fraud, and the risk to the political system and news reporting.
Shortcomings of existing laws
The Copyright Office report says that the existing laws have too many shortcomings in relation to copyright and AI. State laws are dismissed as “a patchwork of protections, with the availability of a remedy dependent on where the affected individual lives or where the unauthorized use occurred.” Also, in many states, the laws do not address the harms that can be inflicted by non-commercial uses of deepfakes. In addition, the Copyright Office found that “Existing federal laws are too narrowly drawn to fully address the harm from today’s sophisticated digital replicas.”
The report concludes stating, “The widespread availability of generative AI tools that make it easy to create digital replicas of individuals’ images and voices has highlighted gaps in existing laws.” As a result, the Copyright Office believes that there is an urgent need for new protection at the federal level. Any new law should also “establish a federal right that protects all individuals during their lifetimes from the knowing distribution of unauthorized digital replicas.” In addition, that right should be licensable, “with effective remedies including monetary damages and injunctive relief.”
What we think
Concerns over the use of AI were cited as some of the reasons for the writers’ and actors’ strikes which hit film and TV production last year. In addition, in a presidential election year, the risk to the democratic process posed by deepfakes is at the top of the agenda. The report is also very timely, as the Senate recently passed a bill to tackle deepfake porn. Under the DEFIANCE Act, victims of sexual deepfakes can sue those who create, share or possess the videos. In addition, only yesterday, a group of Senators introduced a bill called the NO FAKES Act. This law will mean you can seek damages if your voice, face or body are recreated by generative AI. The Copyright Office is going to publish more parts of the report over the coming months, and we will keep you updated.
