US Copyright Office’s Report on Copyright and Artificial Intelligence

In our earlier articles, we have already reported on the US Copyright Office’s ("the Office") initiative on examining copyright law and policy issues raised by or in connection with Artificial Intelligence (AI) and basis that initiative, the Office has issued first part of the report addressing issue of “digital replicase” aka deep fakes. This part of report is 57 pages long and analyses existing legal frameworks, the need for federal legislation, protection of artistic style followed by conclusion.

The report uses digital replicas or deepfakes interchangeably and defines the term as “a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual and may be authorized/unauthorized and can be produced by any digital technology including AI”.? The report further discusses the beneficial and harmful impacts of these digital replicas and mentioned reservations of SAG-INFRA members, which was also one of the issues of the protests by its members, impacting their career and livelihoods. Unrelated to this article, is the news of SAG-AFRA media union and record labels to come up with measures with AI protections for Artists. Such an agreement became the need of the hour due to lack of relevant legislation against deepfakes.

Basis the enquiry conducted by the Office, it received an overwhelming response from individuals advocating for enactment of new federal legislation and upon analysis, the office also agreed that ?there is an urgent need for a robust nationwide remedy beyond those that already exist.

Existing Framework:

Apart from the foregoing, we have provisions for private agreements wherein certain agencies include deals for the use of client’s likeness and personalities in connection with AI experience and products. The report mentions the ratification of SAG-AFRA agreement with AMPTP regarding incorporation of new provisions related to creation and use of digital replicas produced by AI. Though, these days, the regulation of artist’s attributes usage has become common through execution of these private agreements.

Need for Legislation: Time and again, we have mentioned in our articles that enactment of new legislation is the need of the hour and the same has been recognized by US copyright office. The office states that two congressional proposals would address the unauthorized use of digital replicas more broadly:? the No Artificial Intelligence Fake Replicas And Unauthorized Duplications (“No AI FRAUD”) Act,160 and the discussion draft of the Nurture Originals, Foster Art, and Keep Entertainment Safe (“NO FAKES”) Act of 2023.

Basis the notice of enquiry and response received, the Office has identified the following critical elements:

1.???? Definition of Digital Replica

2.???? Persons Protected

3.???? Term of Protection

4.???? Prohibited Acts

5.???? Secondary Liability

6.???? Licenses and Assignments

7.???? Accommodation of First Amendment concerns

8.???? Remedies

9.???? Interaction with state laws

The report goes above and beyond and discusses existing laws and concerns related to the aforementioned 9 elements and also discusses the issue of individual voice not coming under the subject matter of copyright as it is a product of biology, nature, environment, skill and talent. It clearly states that copyright and digital replica rights serve different policy goals, and should not be conflated. Regarding protection of an artist’s style under copyright, the application is limited as it does not protect artistic style as separate element of a work.

The US Copyright Office recommends that Congress establish a federal right that protects all individuals during their lifetimes from the knowing distribution of unauthorized digital replicas. The right should be licensable, subject to guardrails, but not assignable, with effective remedies including monetary damages and injunctive relief.? Traditional rules of secondary liability should apply, but with an appropriately conditioned safe harbour for Online Service Providers (OSPs).

Link: https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-1-Digital-Replicas-Report.pdf

?