The use of artificial intelligence (AI) in modern conditions, despite its exceptional importance in the development of the economies of any country, still becomes the cause of many problems, among which the main one is determining the subject of rights to objects created using artificial intelligence. Solving this problem may affect the development of legal regulation in the field of intellectual property (IP).
However, it is difficult to radically change this situation, since there is no really effective legislative framework regarding the procedure for eliminating deepfakes or regarding their creators.
Despite the fact that the creation of deepfakes is to some extent regulated by copyright law, many questions still remain regarding the images of the dead, famous personalities, works of art, etc.
According to Art. 1228 of the Civil Code of the Russian Federation, the exclusive right to the result of intellectual activity (RIA) initially arises from the author, and then, by agreement, can be transferred by the author to another person.
Russian legislation states (Article 1228 of the Civil Code of the Russian Federation) that the author of an object of intellectual activity is the one who created it (for example, an individual or legal entity), and the copyright holder can be the one who has the exclusive right to this object (Article 1229 of the Civil Code of the Russian Federation). Since the technologies for creating deepfakes, which are developing much faster than the laws in this area, are also individuals or legal entities, the current legislation on resolving problems associated with their creation and distribution requires development and improvement.
However, at the moment, more attempts are being made to regulate their use by social networks. For example, American (Twitter and Facebook) and Chinese (TikTok) social networks are trying to follow the path of bans or removal of deepfakes.
For example, in China it is prohibited to use any information that distorts the truth, which can mislead consumers and thereby harm them, and since January 1, 2020, there has been a law on criminal liability against producers of deep fakes and online platforms where unlabeled deep fakes can be published.
I would like to note that the creator of a deepfake does not always intend to deceive viewers, but, nevertheless, he misleads them, since, for example, by editing a photograph, he changes the impression of the object being photographed. To avoid misleading consumers, Israel passed the Photoshop Law in 2012, which requires advertisements to indicate that images have been computer-processed. In France, since 2017, photos that have been digitally altered have been required to be labeled as “photo retouching,” and in 2021, Norway introduced a ban on the use of photos with any kind of digital enhancement without disclosing the edits.
In the Russian Federation, individuals have the right to their own image. So according to clause 3 of clause Art. 152.1 of the Civil Code of the Russian Federation “every person has the right to shape his appearance at his own discretion, save and change it, record it at a certain point in time by photographing, video filming, etc. The individual appearance (image) identifies a citizen in society, therefore the image is part of the information about a person’s personality and can, in addition, constitute his personal secret.” Therefore, as stated in paragraph 1 of the same article, publication and further use of a citizen’s image (including his photographs, videos or works of fine art in which he is depicted) are allowed only with his consent, and after his death with the consent of children and/or other relatives. In case of violation of this article, a citizen or his relatives have the right to demand the removal of the image and prohibit its further distribution.
The creation and distribution of deepfakes often affect the personal intangible benefits of individuals, among whom, according to paragraph 1 of Art. 150 of the Civil Code of the Russian Federation, personal dignity, honor and good name, business reputation, privacy, etc., which requires improving mechanisms to protect his interests. The Civil Code of the Russian Federation provides for the opportunity to protect intangible benefits, for example, by the court recognizing the fact of violation of a personal non-property right, publishing a court decision on the violation, as well as by suppressing or prohibiting actions that violate or create a threat of violation of a personal non-property right or encroach or create a threat of encroachment on an intangible benefit. Article 151 of the Civil Code of the Russian Federation provides for the payment of monetary compensation if a citizen has suffered moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on intangible benefits belonging to the citizen, as well as other cases provided for by law.
If the person depicted is not the copyright holder of the created image or does not have evidence that he owns the rights to it, then its acquirer has the right to use the original work at his own discretion without the consent of the author or other copyright holder and without paying him remuneration (Clause 2 of Article 1291 of the Civil Code of the Russian Federation).
That is, civil law mechanisms exist and can be applied in cases of deepfakes, however, they provide very limited protection to victims of them, therefore, recently they are increasingly turning to criminal law mechanisms in relation to the creators and distributors of deepfakes.
In conclusion, I would like to note that although the existing mechanisms for resolving conflicts in the field of creation and distribution of deepfakes in the laws of many countries are quite ineffective, there is currently a tendency towards establishing general rules for the publication of digitally processed images. However, the main task is still to develop and improve legislative mechanisms regarding artificial intelligence in general, and not just in relation to deepfakes.
