Navigating the Uncanny Valley: Legal and Ethical Challenges of Deepfakes in the Entertainment Industry

25th June, 2024 - 10:55 am Categories: Media & Entertainment Law 0 Comments

The emergence of AI & ML as a prominent form of synthetic media in creative industries has been attributed to technological advancement. Deepfakes are highly realistic digital means generated by AI that replicate real content or imitate a particular person’s or object’s appearance or voice. For all the possible, even welcoming uses of the technology, from entertainment to education and journalism, its abusive use brings uniquely stark legal and ethical questions. Deepfake technology is a prevalent problem in the entertainment industry, and this article aims at discussing the legal and ethical concerns associated with this issue and further analyzing the requirement for more regulation initiatives concerning this problem.

The Rise of Deepfakes and Their Impact on the Entertainment Industry:

It should be noted that the entertainment industry is one of the pioneers of using the latest technologies, both in the process of creating new products and in the implementation of the concepts of innovation and advance. Such applications become possible due to the potential of deepfakes which, in theory, can create the photorealistic human likenesses, 3D environments, and VFX. However, it also holds a potential danger for the industry itself and for its subjects because of the persuasiveness of generating artificial content.

Another area of risk is linked to the consequences for copyrights and publicity rights that might be affected by deepfakes. Manufacturing and distributing an actor’s deepfake could pose a threat to the actor’s right to cease the utilization of his or her persona for commercial advantage without permission. Furthermore, deepfakes could been utilized in generating secondary unauthorized videos or using another actor/actress that may harm the celebrities’ reputation and career.

Legal Considerations:

At present in India, there is no law made in particular for deepfakes or synthetic media. Nonetheless, it is clear that there are existing laws and the legal precedents that may be applicable to regulate the usage of deepfake content in the entertainment industry.

[Image Sources: Shutterstock]

1. Intellectual Property Rights:

– The Copyright Act, 1957: But this Act provides an author, composer, creator or any other person having an original work creative, moral and personal rights in the literary, dramatic, musical and artistic production. Unless the subject material being used in deepfakes has been obtained through a legitimate copyright license and the user does not possess a license, then the act might be considered as a copyright infringement.

– The Trademarks Act, 1999: This Act provides for the registration of trademarks and prejudices against the use of registered trademarks or their simulation, in a manner calculated to cause confusion or misconception. Logo manipulation or using brand images in deepfakes might be deemed to have crossed this Act.

2. Right to Privacy and Defamation:

– The Indian Penal Code, 1860: The criminal defamation laws as provided under sections 499 and 500 involves imputing anything knowing or having reason to believe that it would harm the reputation of a person; or the communication of imputations on the character, conduct, life or reputation of a person. Punishable provisions of deepfakes are slanderation or libelous purposes that tend to request or portray an individual.

– The Information Technology Act, 2000: Section 66E is concerned with the breach of specific rights of privacy and provides for punishment for the act of capturing or broadcasting the image of a private part of the body of any individual without his or her permission. This provision fits the cases of deepfakes that invade a particular person’s privacy.

3. Other Relevant Laws:

– The Indecent Representation of Women (Prohibition) Act, 1986: Women shall not be exploited in advertisements, publications, writings paintings, or through any other means in what is deemed indecent. Deepfakes in form that portrays women in a vulgar or inany way any other deplorable manner could be in violation of this Act.

– The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: These rules set the standards relating to methods relating to the utilization of social media to disseminate information and control of the content displayed on these platforms; they also prescribe the procedures for handling complaints from users. Anything hosted or shared on these platforms could potentially fall under the purview of these rules or regulation or law.

Ethical Considerations:

Beyond the plethora of the legal concerns, the use of deepfakes has raised in the entertainment industry certain significant ethical questions. The ability of creation of an highly realistic synthetic media arises a challenge for the traditional notions of authenticity, of consent, and of the artistic integrity.

1. Consent and Autonomy: The viewers cannot consent to watch deepfakes since it does not respect the rights of the original subjects to their image and persona; the subjects themselves cannot consent to being impersonated by deepfakes since their agency has been compromised. This gives rise to several questions in terms of personal liberty, privacy and the right to dictate one’s body.
2. Deception and Manipulation: Deepfakes, therefore, have the relatively dangerous impact of presenting imitation footage that may influence viewers and twist perceptions, especially within entertainment and media. This role may lead to the dilution of credibility of the narratives that mainstream media bears, as well as the growth of the level of misinformation and disinformation.
3. Artistic Integrity and Creative Expression: Deepfake is the realism of such manipulations; the use of deepfakes in such an industry as entertainment can initially negatively affect the creative process and the work of filmmakers, actors, and content makers. This threatened the artist’s ability to perform or record their work, which could lead to the idea of faking performances or reproducing them In digital formats without permission, reduces art to mere commercial product, thereby erasing artists’ ownership of their work.
4. Bias and Representation: Deepfake technologies can reinforce prejudice including sexual harassment or contributory judgment and stigmatization if the training images used to design artificial intelligence are limited or are diverse. Such a situation may increase the risks of maldistribution of the population; some people may be depicted lesser or not at all, which will only increase the level of prejudice towards discriminated groups.

The Need for Regulatory Measures

In the entertainment industry, law and ethics concerning deepfakes have remained an issue of debate, and regulation is now needed to offer a solution that shall safeguard both creativity and innovation and other essential and mandatory rights of the individuals and society as a whole.

1. Strengthening Existing Laws: The laws that may have been violated previously include those dealing with intellectual property rights, privacy, defamation, and indecent representation of women, etc. These laws should be analyzed and then modified where necessary to incorporate the vices of deepfakes and synthetic media. To avoid legal ambiguities and different interpretations by enforcement agencies and the courts, educators’ standards should be given clear guidelines and definition.
2. Developing Specific Legislation: That is where, given the range of difficulties that deepfakes present to society, political authorities may turn their attention to the elaboration of more precise example of a law or regulation which would regulate the production, publication, and utilization of deepfakes. This legislation could set out conditions under which consent is required; it may prescribe the manner in which information is presented to consumers; and it may set out consequences for violation or negligence.
3. Industry Self-Regulation and Best Practices: The entertainment industry may generate guidelines and parameters for the proper use of deepfakes and synthetic media that will be followed by creators and users. Some of them may include recommendations for conducting consent, being as unambiguous as possible, and employing signal detection technologies for deepfake dissemination.
4. Public Awareness and Media Literacy: There are needs for public awareness of deep fake and its consequences as it is a major threat to the public interest. Skills helpful for media literacy would include critical thinking and abilities to discern material that may be fake or misleading and therefore it is possible that more programs will be developed to help more people be aware of the prevalence of synthetic media.
5. International Cooperation and Collaboration: As the entertainment industry is so interconnected with the world, and concentrating on deep fakes, it is crucial that there are both supports and communications among countries. There are several options for improving the performance of the regulation, including the adjustments of the regulatory frameworks, frequent exchange of the best practices, and the combined measures for combating the abuse of deepfakes.

Developing Specific Legislation:

Subsequently, most countries have stepped up to enact laws or even enact regulations to ban deepfake technology which is causing havoc when it comes to the world. For instance:

In the United States, at the federal level, this responsibility has been signed into law as part of the National Defense Authorization Act for Fiscal Year 2023, where specific provisions call for creating a mechanism for identifying deepfakes and other forms of synthetic media.

The European Union’s Artificial Intelligence Act is planned to specify the regulation of the AI development and deployment, including deepfakes, over the risk level they pose.

India, therefore, might act in a similar manner, or come up with a set of laws separate from GDPR to regulate the production, distribution, and application of deepfakes especially in areas like the movie industry.

Industry Self-Regulation and Best Practices: Industry Self-Regulation and Best Practices:

Because deepfakes and synthetic media are still considered new technology, it is crucial for industry organizations such as MPAA and PGA to design guidelines and policies tailored to the entertainment industry. These attempts have the objective of creating and enforcing the values of ethical practice, reduce rip-offs and preserve the freedoms of the performers and other producers of material.

Public Awareness and Media Literacy: Some of the steps that can be taken for making the people aware about deepfakes and synthetic media are mentioned below: Some of the steps include – United Nations Education, Scientific and Cultural Organization Media and Information Literacy (MIL) initiative and Government of India’s Digital Literacy Campaign.

International Cooperation and Collaboration: Entities such as the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and the World Intellectual Property Organisation (WIPO) have identified deepfakes’ consequences and are trying to establish global cooperation, and to establish general standards and norms.

India can directly engage in these global initiatives and partnership formation processes to co-fashion an integrated legal and regulatory approach towards deepfakes and synthetic media.

Potential Regulatory Approaches

Consent and Disclosure Requirements: The potential options could include requirements for consent in cases when an individual’s image or voice is employed in deepfakes or synthetic media. Also, regulation in the publication of synthetic content could be employed in the form of disclosure in which the creators would provide a disclaimer or mark that these are synthetic media.

Content Moderation and Monitoring: Potential regulatory measures might include making it mandatory for online platforms and intermediaries to employ effective mechanisms that allow one to detect and eliminate deepfakes and synthetic media that reference the provisions of laws or rules. This could mean the creation of automated detection tools, but it may also include human input to work through the identification of such suicidal behaviour.

Technological Solutions: Critically, regulating measures may encourage the find of appropriate technological levers with the goal of mitigating deepfakes, including digital water mark, blockchain authentication and superior detection software. It is here that formation of public-private partnerships may facilitate a concerted effort of the industry, academia, and government institutions towards development of innovations in this field.

Penalties and Enforcement: There should be been transparent consequences that would apply to any organization or person failing to adhere to the rules regarding deepfake use. This may entail the tug of civil and criminal sanctions and measures thus provisions for justice for victims of rights violations.

Ethical Oversight and Governance: The current legal systems could create ethical committees or boards of oversight to supervise the emergence and application of deepfakes and other synthetic media. These bodies could advise/inform COs about possible ethical issues, increase the level of accountability, and follow existing guidelines and standards.

Conclusion:

Deepfakes and synthetic media have appeared as a new trend in entertainment and it offers some hardly thinkable advantages and mostly evident disadvantages. When implemented correctly the technology opens up new areas of creative outlet, however where there is technology there are always legal and ethical issues of copyright infringement, privacy invasion, libel and slander, and artistic voice being altered, stolen, or misused. To overcome these challenges, several strategies must be employed, which include improving and enforcing extant laws, adopting new regulations for the new industries, encouraging the industries to set up their codes of ethics, educating the public and media, and international collaboration.

Through following the tips of the uncanny valley in deepfakes and striking a balance between the legal uses of this new form of technology and risk, entertainment industries can embrace the potential of deepfakes while also ensuring the rights and morality of the users to protect themselves from this potentially dangerous technology. This essay conclude that the challenge for the future is to find the right balance between innovation and protection that will keep the trust of the public and protect the individual and corporate rights and the integrity of the entertainment industries. Projecting a legal and regulatory framework, alongside continuous dialogue and participation from the general public as well as stakeholders regarding the application of deepfakes and synthetic media for creating influential fake pieces of information or for violating basic human rights and societal norms is a possible solution.

Author: Hansh Rathi, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.