The Battle Against Deepfakes

Introduction

We live in a world where technologies are being developed that have made it more profound to differentiate between practicality and innovation. Technology like deepfake is one of those technologies that groups artificial intelligence and elements that could be pivotal legally. Currently, deepfake technologies enable people to produce realistic and fake content, and the law might not yet be prepared to deal with this novel copyright infringement and all breaches of personality rights.

Understanding the Deepfake Phenomenon

Deepfakes use new machine-learning algorithms, popular Generative Adversarial Networks (GANs), to produce or create audio, video, and image material that convincingly appears to be original. The technology processes thousands of lakhs of images or video segments of hours to then generate synthesized media, which could be indistinguishable from the original to a common viewer. While deepfakes can have legal uses in the entertainment sector, gaming, education, etc., its abuse could give rise to lawsuits and legal shocks that stifle our very basic rights over intellectual property and personal autonomy.

Deepfake technology is now widely accessible, which has effectively democratized the capability to participate in content manipulation that is simulated and people no longer require advanced technical knowledge in order to work with this technology. Such accessibility has generated a sense of urgency when it comes to solving legal validation that must now equally safeguard intellectual works, but also individual rights.

Copyright law relies on the principle that original material is not to be duplicated or reworked without authorization. Deepfakes complicate this, as deepfake videos and media are entirely artificial but can contain copyrightable material without reusing it. The question then becomes was this use of a copyrightable work fair use when an algorithm used a video, audio, or image(s) that were copyrighted for training.

The doctrine of transformative use under fair use that has long been applied to parody and criticism, for instance, is once more being tested because courts must screen whether or not the artificially created media that employs copyrighted information for training can truly qualify as transformative. The doctrine of transformative use becomes even more complex when deepfake media might or do carry market value and could potentially displace the commercial viability of the original material.

Deepfakes also complicate the definition of derivative works. While derivative works as a term, more frequently than not in an adaptation will invoke the source work, media created with algorithms will use many of those aspects and fail to explicitly invoke the underlying original work, and without even a discernible reference, it would be virtually impossible to identify or find the work in most cases. Such invisibility to recognize or find any work together with erased videos takes away from detection, and thus, to attempt to impose an infringement claim.

Persona Rights and Cyber Identity Theft

A number of persona rights infringements can be dealt with prior to copyright issues in deepfake technology. Persona rights, including publicity rights and privacy rights, safeguard individuals’ rights to own their image, likeness, voice, and identity. Deepfakes are the total breach of such rights since they can be generated without the individual’s knowledge or consent of the person in the deepfake video, integrating the individual without his/her permission.

The harm exceeds the image or video of an individual being taken over; deepfakes enable a manipulator to have them falsely assert, say, do, and behave, potentially harming their reputation, relationships, or professional life. Classic defamation involves lies about an individual; deepfakes create lies that appear to reveal actual events. Women, minorities, and public figures are some of the most targeted heaviest.  Deepfakes non-consensual pornography, for instance, is one of the worst applications of this technology, constituting an invasion of privacy beyond ordinary torts and a new form of digital harassment inadequately treated by modern-day privacy torts.

Legal Framework Inadequacies

Intellectual property and privacy law are current laws struggling to cope with harms such as deepfakes because they were largely created in non-digital contexts. Copyright law depends on doctrines of substantial similarity and reproduction, which are indeterminate when applied to machine-generated synthetic media. Publicity rights legislation traditionally depends upon commercial use or a unambiguous connection to an individual, both requirements which synthetic deepfake generation can avoid.

Combining with these obstacles are jurisdictional restrictions: deepfakes made in a foreign nation can be seen by global audiences nearly in real time, such that enforcement is problematic. Creators’ anonymity and the quick pace of online distribution add to the obstacles against legal remedies.

Legal shield for social media businesses offered by legislation such as Section 230 of the United States’ Communications Decency Act introduces further complications. While these legislations give immunity to businesses for their promotion of free expression and innovation, it also potentially gives immunity to such businesses from being held liable for hosting deepfakes, which also further restricts action available to an injured party.

Conversely, India has not passed a law specifically focused on deepfakes, but provisions of the Information Technology Rules, 2021, and the Indian Penal Code sections including defamation and sexual harassment can be raised when deepfakes lead to reputational damage or emotional harm.

Emerging Solutions and Legislative Responses

Legislators and regulators worldwide are establishing rules specific to deepfakes as they recognize the danger expanding. Deepfake pornography is illegal to create without the individual’s consent in some U.S. states, and using deepfakes to manipulate elections is illegal. The European Union’s Artificial Intelligence Act also states that synthetic media should be transparent and truthful.

Individuals in the trade are creating technical safeguards such as content authentication using blockchain, watermarking systems, and AI-based detection tools. Large social media platforms have policies to limit or mark manipulated media, but they do not always adhere to them. Legal scholars and policymakers have proposed expanding persona rights to cover protections against creating false identities and finding novel ways to sue for deepfake-caused damages. AI-generated content should be made to be clearly labeled, say some, while others propose that hosting platforms for non-consensual deepfakes be held to a higher standard.

Conclusion

If we are to win the battle against deepfakes, we must act together on legal, technical, and ethical fronts. We must alter laws as synthetic media evolves to guard both creative material and human rights without hindering genuine innovation. The solution is to act together, among lawmakers, engineers, and rights groups, to create regulations that safeguard individuals while permitting advances. The fight against deepfakes is not merely a legal concern; it also presents crucial questions regarding truth, consent, and freedom of the digital age. The way people address these issues will determine the future of privacy, creative expression, and trust in the synthetic media era.

Author: Vaibhav Pandey, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD. 

References:

1. https://www.sciencedirect.com/science/article/pii/S2667096824000752
2. https://medium.com/@gupta.brij/deepfake-a-deep-learning-approach-in-artificial-content-generation-a626ceebe48f
3. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4981040
4. https://singhanialaw.com/understanding-indian-laws-protecting-personality-rights/
5. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4981531
6. https://www.researchgate.net/publication/391456796_DEEPFAKES_IN_INDIA_A_LEGAL_LABYRINTH_OF_COPYRIGHT_AND_IPR
7. https://www.asianinstituteofresearch.org/lhqrarchives/deepfake-technology-in-india-and-world%3A-foreboding-and-forbidding