Images, video, and audio that have been doctored are not new but what makes today's deep fakes unique and alarming is how advanced digital falsification systems have been. We face a world in which no one knows what a threat to global democracy's base is. Deep fake victims, on the other hand, are likely to be concerned with more immediate causes, such as the dangers of a fake clip featuring them doing or saying something that hurts their credibility.
Position in the United States
In the United States policymakers have proposed several options, including amending Section 230 of the Communications Decency Act, which says that platforms are not liable for content posted by their customers, and enacting legislation that will impose new liabilities for those who create or host deep fakes. However, there is currently no concrete legal solution to this issue. Meanwhile, several deep fake victims have employed a novel yet faulty strategy to combat the attacks by the use of copyright laws.
According to recent reports, YouTube removed the deep fake portraying Kardashian due to copyright violations. A significant amount of clips from an interview was included in the fake video. The media conglomerate which owns Vogue is likely to have lodged a copyright claim with YouTube. It should have used the basic YouTube copyright removal request process, which is based on the Digital Millennium Copyright Act's legal requirements.
It's easy to see why certain people would want to use an already-existing legal system to get deep fakes taken down. As there are no rules that directly tackle deep fakes, and social media site policies are unclear. Following the fake Nancy Pelosi video which got viral, tech companies responded in a variety of ways. The video was taken down by YouTube, though Facebook kept it live but added flags and pop-up alerts to warn users that it was most likely a fake. Copyright law, on the other hand, isn't the answer to the proliferation of deep fakes. The high-profile deep fake instances we've seen so far tend to largely come under the "fair use" copyright infringement exemption. Fair use is a legal doctrine in the United States that permits any unlicensed use of content that would otherwise be covered by copyright.
We can look at four factors to see if a particular situation allows for fair use:1 (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion taken, and (4) effect of the use upon the potential market.
However, generally speaking, there's a strong case to be made that most of the deep fakes would qualify as fair use. As deep fakes can meet the four-factor test and be protected under the principle of "transformative use." As stated by the United States Supreme Court in the landmark decision of Campbell v. Acuff Rose,2 when a copyrighted work is transformed into material with new expression, meaning, or message, this is known as transformative use.
Due to the current state of copyright laws in the United States, if deep fakes are taken down based on copyright infringement, it may obstruct one's freedom of expression. The problem is that deep fakes developed for malicious reasons can also be covered under the transformative use principle. Because of the broad scope of the doctrine of fair use, this may be a risky outcome.
Can copyright law in India deal with a deep fake?
In India situation is that of fair dealing, as described by section 52 of the Copyright Act,3 which contains an exhaustive description of what is not called copyright infringement. Since deep fakes are not included in this exemption, it is simpler to hold the developer liable. As the right to dignity is protected under Section 57(1) (b). A copyrighted work is protected from distortion, mutilation, and modification. Further for violations of exclusive rights, Sections 55 and 63 enforce civil and criminal liability.
It is suggested that deep fakes cannot be viewed only from the standpoint of property rights, since it has the active involvement of certain personal rights. The assertion of copyright infringement fails to defeat deceptive deep fakes in the United States and other countries with positions close to the fair use doctrine. Therefore it is more fitting for victims of malicious deep fakes to use grounds of privacy, data protection, and online abuse to tackle deep fake if it is not copyright infringement in that country.
1 Digital Millennium Copyright Act, 17 U.S. Code §?107.
2 510 U.S. 569, 92-1292, (1994).
3 THE COPYRIGHT ACT, NO. 14 OF 1957, §52.
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