Deepfake video featuring Jordan Peele and Barack Obama

Deepfake exploitation prompts rethink of performers’ rights

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The rights of performers should be reformed so that their likenesses cannot be replicated using deepfake technology without their permission, Exeter researchers have said.

AI technologies are increasingly being used to generate realistic videos or sound recordings that imitate the likeness of a person’s face, voice or performance, based on authentic footage.

Current intellectual property laws were created long before deepfake technology existed and therefore do not take its possibilities into account. Performers are legally entitled to control the records made of their work, but this doesn’t apply to digital impersonation.

A study by Dr Mathilde Pavis, from the University of Exeter Law School, suggests that performers should be given copyright over their work to prevent abuse of their personal likeness.

“The regime of performers’ rights could be replaced with a regime of performers’ copyright,” Pavis said. “This small, yet important, change in legal regimes can be the difference between piecemeal, uneven and, therefore, ineffective protection against unauthorised deepfakes and a harmonised international approach to the technology.

“This reform would offer a comprehensive and more sustainable legal response to deepfakes. It would simplify the structure of intellectual property by removing a sub-category of intellectual property right - performers’ rights - and integrating it into the more established regime of copyright. It would remove the archaic divide placed between authors and performers, which has no legitimate justifications today.

“This reform would create transferable property rights over the performance and likeness of the deepfaked persons. There will need to be safeguards included, such as preventing or limiting the complete transfer of rights to third parties.”

Performers’ rights currently protect the recording of a performance and the reproductions (or copies) of that recording. Performers can only control the fixed, recorded, version of their performance. The content of the recording, the performance, is not protected and can be repeated and imitated without consequences. This means that a performer has no intellectual property right to the substance or style of their performance.

Deepfakes challenge the framework of performers’ rights because performances are reproduced without generating a ‘recording’ or a ‘copy’ of a recording. AI systems used to generate deepfakes do not record performances or copy recordings of performances, thus falling outside the scope of protection afforded by performers’ rights.

Last year, a group of experts determined that deepfake deceptions have the greatest potential to cause societal harm using AI technologies.

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