The U.S. Copyright Office has released the first part of a report on how AI will impact the sector, and its first recommendation is that new laws must be enacted immediately to define and combat AI-based spoofing.
“Our findings make clear that the distribution of unauthorized digital copies poses a serious threat not only to the entertainment and political spheres, but also to ordinary citizens,” agency director Shira Perlmutter said in a statement accompanying the report. “We believe that effective nationwide protection against harm to reputations and lives is urgently needed.”
The report itself is the first of a series of upcoming reports that focus on this timely aspect of AI and intellectual property, which as a concept encompasses the right to control your identity. You certainly don't have to file a copyright claim against yourself to prevent an advertiser from using your likeness, but can the same be said about your likeness replicated by AI?
A few years ago, creating a “digital replica” (as the Copyright Office calls it) of someone required so much time and effort that it was limited to politicians and celebrities. But now, with just a few videos and public social media posts, just about anyone can very easily and cheaply create a decent virtual version of you. As the FCC and other federal agencies have pointed out in their own areas, this creates new opportunities for abuse.
Of course, the Copyright Office is more interested in intellectual property issues, but when it launched this study (and solicited public comment) last year, it uncovered potential harm in that area as well.
“We analyzed the comments we received, conducted additional research, and consulted with other agencies on related areas of expertise. Based on all of this input, we concluded that new legislation is needed. Given the speed, accuracy, and scale of AI-created digital replicas, swift action by the federal government is necessary.”
The idea that new legislation is needed in this area is by no means original, and in fact Congress is actively working on this very issue. In fact, as I write this article, a bill in this direction has been proposed! (It has been circulating as a draft for some time, but was officially introduced today.)
The Copyright Office's recommendations add some important nuances to these proposed amendments. Here are some examples taken from the report:
Liability should arise from the distribution or provision of unauthorized digital copies, not just from the act of creation. Damage is often personal in nature and should not be limited to commercial use. Actual knowledge that the expression is both a digital copy of a specific individual and that it was unauthorized is required. Protection should last at least for the individual's lifetime. Posthumous protection should be time-limited and include an option to extend the period if the individual's persona continues to be misused. The law should include a safe harbor mechanism to encourage online service providers to remove unauthorized digital copies after receiving valid notice or after they learn that they are unauthorized. Given that state publicity and privacy rights are well established, the Bureau does not recommend a full federal preemption. Federal law should provide a minimum level of protection that is consistent across the nation, and states should be allowed to continue to provide additional protections.
In practice, this seems pretty similar to existing copyright law: Your likeness (“hard to distinguish from a true depiction”) should resemble a photograph you've taken or a song you've written, and should be afforded basic federal protection, the department suggests. But unlike a song, your likeness also raises privacy and identity concerns, and some states have additional laws, such as BIPA in Illinois and CCPA in California.
The Copyright Office's views on these issues will necessarily come from its areas of interest and expertise, but they are certainly relevant, even as human rights and other ethical issues are also involved. Those drafting new “digital replica” laws, and perhaps more importantly, legally defensible laws, would do well to base their drafting on existing, valid laws rather than starting from scratch.