The Infringement of Using Protected Works and Performances Without Consent in the Deepfake Creation

Abstract

The evolution witnessed in this era which is driven by artificial intelligence (AI) creates significant legal questions, especially for the Intellectual Property law. One of these important issues focuses on the synthetic media that are produced in a hyper-realistic way by relying on a unique way that is represented in imitating people's images and voices from previous content. This technology is identified as “Deepfake” and it caused several legal questions from different aspects due to the gaps in its regulation. This research aims to investigate the regulation gap that occurred after the emergence of Deepfake regarding the copyrights and performer's rights and to test how the infringement claim may be applied regarding the use of the pre-existed works and pre-existed performance in the Deepfake work. This research applied the Doctrinal method to understand how Deepfake connects with the copyright and performer’s rights legislation regarding the infringement claim. In order to understand how Deepfake works and to apply that precisely to the legal analysis, the sociolegal method is applied to include an explanation of the technology side. Moreover, the comparative analysis has been applied in order to make a comparison between what the regulator granted to the previous works under copyright law and to the performance under the performer’s rights in terms of infringement and Deepfake issues. The result of the research indicated that, using someone’s face or voice with no consent in Deepfake is available and it does not cause infringement provided that this person is not the owner of the copyrighted work because in this circumstance that leads to infringement. On this basis, this research supported the solution that proposes upgrading the performer’s rights to be on the same level of protection with copyright provisions.