Copyright implications of computer-generated imagery using the likeness of real people

Abstract: The Universal Declaration of Human Rights article 27 shows that copyright law has two functions. ‘everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’[1]  These functions are supporting cultural aspects on society and give a prior right to holder of the copyright to secure and use the work. On the other hand, copyright secures the personality and property rights of the copyright holder. When talking about copyright as an international concept we can state that copyright is not an absolute right, it is limited by the common wellbeing of society, meaning that quoting and getting the information or ideas from other’s work is accepted. Ideas, principles, thoughts, or themes are not included in the scope of copyright protection.[2] Copyright can be created only by a human, but it can be transferred to a legal person like a company. Not that long-ago computer programs were not seen as tangible property and that is why the damages done to the programs were hard to prove as a criminal action.[3] Copyright protects the artistic work during the whole lifetime of author and 70 years after his death. It can be said that copyright and related rights are less protective than industrial registered intellectual property, on contrary, copyright is not limiting the protection to the level of success or requirements, while for example, patent law is very restrictive about the quality of product.[4] Copyright law is a territorial limited law, led by international regulations like the Berne Convention for the Protection of Literary and Artistic Works (hereafter Berne Convention)[5] and European Copyright Directive (hereafter DSM Directive).[6] Photoshop and image manipulation are present in everyday life, this kind of services can be offered even to children for their school portals. Use of computer-generated pictures and films is increasing in campaigns, news and movies. This kind of image technology can be used for making simulations of law cases or “waking up” movie stars from death. The scale of use is endless. The artificial intelligence (hereafter AI) technology behind computer-generated imageries is called deep learning. Deep learning is an advanced type of machine learning and it is used at, for example, computer programs, self-driving cars, and targeted online advertising.[7] The artificial intelligence software makes generating easy and possible for larger user groups and develops images, which brings more legal problems as well. Computer-generated imageries (hereafter CGI) are used for the entertainment industry for different targets and upgrade the film for a new level. In the same time, it can be used for an act of revenge, when the content is defamation the person at the picture, or it can be used for fake news. These kinds of computer-generated imageries are called deep fakes. Sometimes the imageries done by AI or other software are so real that it is almost impossible to recognize the difference with the bare eye, the content of the deep fake can lead the viewer to wrong. The problem of deep fakes has been identified by the governments as well as by the large corporations, for example, Facebook. Facebook, which is one the world’s biggest social media network, has decided to delete and ban deep fakes on its pages according to Monica Bickert vice-president of Facebook. The ban does not apply the parody or satire content, which is one argument that copyright holders are relying on deep fakes.[8] The aim of the thesis is to recognise all aspects of copyright law implications; including the rights of the owner of original work, rights of the owner of new work, rights of the persons that are at the copyright-protected work and rights of the trademark owner if the trademark is used on imagery. [1] The Universal Declaration of Human Rights by the United Nations General Assembly on 10 December 1948 [2] Article 2 of Berne Convention for the Protection of Literary and Artistic Works. September 9, 1886 regulates the scope of the works which are enjoying copyright protection. Guidelines to Berne Convention paragraph 2.2 and 2.3 state that the content itself is not important for copyright protection but the form of the work. Therefore, for example, idea is excluded from the scope of copyright protection. WIPO. Guide to the Berne Convention for the Protection of Literary and Artistic Works. 1978. Retrieved April 25, 2020, from https://www.wipo.int/edocs/pubdocs/en/copyright/615/wipo_pub_615.pdf [3] Cox v Riley (1986) 83 Cr App R 54. The employee erased several programs from the magnetic cards and was charged with criminal damage. Employee argued that he was not guilty because the computer programs were not tangible property. Court held that even though the computer programs were not tangible property the damages done to the cards were enough to be charged in a criminal sentence. [4] Pila, J. Torremans, P. European Intellectual Property Law. 2nd edition. 2019. Oxford. [5] Berne Convention for the Protection of Literary and Artistic Works. September 9, 1886. The latest text of Berne Convention (from 1971 Paris Act plus Appendix) will be used at thesis. [6] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directive 96/9/EC and 2001/29/EC [7] Rouse, M. Definition ‘deep learning’. TechTarget. 2019. Retrieved May 25, 2020, from  https://searchenterpriseai.techtarget.com/definition/deep-learning-deep-neural-network [8] Bickert, M. Enforcing Against Manipulated Media. 2020. Retrieved May 9, 2020, from   https://about.fb.com/news/2020/01/enforcing-against-manipulated-media/