Fighting Deepfakes with IP Laws

The year of 1997 was a test of Intellectual property rights in India and its ability to save celebrities from a breach of their personality rights.  Sourav Ganguly v. Tata Tea ltd is a worthy example how markets abuse celebrity IP rights for profits. Sourav Ganguly got a hefty compensation because the company ran a market campaign on its packaging for its customers encouraging them to congratulate Mr. Ganguly using his image for a cricket match his team won at Lords stadium U.K.  The courts accepted his breach of fame and celebrity rights were his intellectual property right.

“….markets abuse celebrity IP rights for profits….”

However, modern times has added to more challenges, the challenge of Deep Fakes and celebrities. With a rise of internet revolution, fake media and deepfakes on social media, many countries are concerned over the misuse of right to privacy, especially the celebrated artists, political dignitaries, and reputed individuals whose main source of income are their faces, voice etc. Even though the technology of deepfakes has really caught on with both bad aspects in creation of fake news as well good ones, in application-based use cases in fields of entertainment, medical technology, education etc.   The issue remains, how to ensure protection of social rights such as freedom of speech and creative expression by content moderation versus area of law such as copyright infringement, data protection, privacy, rights, personality and publicity rights, and intermediary liabilities over digital fraud. The problem is particularly of importance due to the nature of its misuse against vulnerable communities and defamatory media resurgence.

Indian Legal Landscape: Deep Fakes and Personality Rights:

Deepfakes are a type of synthetic media or distorted digital representation created by artificial intelligence to misappropriate the identity of a person with natural, unnatural imagery or electronic media by deep neural learning algorithm  known   as  generative adversarial networks (GANs).On the other hand, personality rights recognize individuals as physical beings with their own sense of existence.

..”there are key statutory provisions in Indian that protect Personality Rights for its celebrated individuals..”

In 2001, Mr. Tushar Gandhi withdrew a case against CMG Worldwide which according to him used his great grandfather alias name ‘Mahatma Gandhi’ exclusively for their marketing purposes. On the contrary, India also has many celebrated individuals such as Shah Rukh Khan, spiritual guru Baba Ram Dev who enjoy their personality rights because they have invested in exclusive IP protection by means of trademark and copyright law; thus, empowering them against misuse of their personal interests. Nevertheless, India does not yet have codified rights to allow individuals a statutory right to their personalities. However, there is a bright side, there are key statutory provisions in Indian that protect Personality Rights for its celebrated individuals as mentioned in the image below;

Global Frameworks on Deep Fakes and Protection of Personality Rights:

With rise of worrying climate around misinformation, standards and compliance around international commerce and commercial misuse of intangible assets such as counterfeiting, many countries are opting to bring in risk management frameworks to counter the exploitation as well as adopt procedures of privacy for celebrated individuals, AI Tech compliances  and accountability. For e.g. In the USA, the Deepfakes Accountability Act (passed in 2019), mandates watermarking for identification and amend non-consensual pornography laws as well as The Fair Use Doctrine Practices, that determines a breach of rights following the 4 factor tests.

The practice addresses copyright infringement conflicts. The test has proven viable especially against cases defending audio-video parodies that seek protection against any copyright breach because their works are important to society or transformative in nature.

..”Should talent management companies like yours include IP laws as a business strategy to attract more clients?”

While Europe in April 2021 has proposed the new EU – AI Act that lays down risk-based approach framework for countering the challenges arising from artificial intelligence. The Act creates due diligence approaches by AI categorization under; an unacceptable risk; (ii) a high risk; and (iii) low or minimal risk. With upto 30 Mn EUR or fiscal sanction of 6% of annual turnover against a breach of AI practices against organization, whichever is higher.

IP Rights : Final Solution

Today in India the concept of personality rights in accordance with deep fake world is yet to become more sophisticated. Nevertheless, the assurance of these rights has become more relevant with India’s rising global influence, rise in number of Indian origin personalities, growing misinformation, ubiquitous media, and ease of global communications.

Regardless to the fact, the present arena of publicity, celebrities and deep fakes in the country has come to reside completely on functionally sound intellectual property laws that can single-handedly guarantee protection to country public figures.

Therefore, in face of lack of codified laws in India the industry of the only infrastructure to counter the menace of Deep Fakes remain the IP legislative option. What do you think , do celebrity deserve their privacy? Should talent management companies like yours include IP laws as a business strategy to attract more clients? Are artists IP rights important for business revenues? Comment Below

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