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  • Writer's pictureRémi Fouque

When a deepfakes bill protects performers' rights

A French bill to criminalize deepfakes could better protect perfomers’ copyright-related rights. To what extent?

Have you ever dreamt of a draft law cracking down on deepfakes and protecting performers' rights? France is doing it.

On 5 July 2023, the French Senate approved a bill aimed at securing and regulating the digital space. Article 4bis of the bill, in Article 226-8 of the French Penal Code, qualifies a deepfake as the unlawful manipulation of another person's image or voice and imposes criminal penalties. Article 5ter increases the penalty if the deepfake has been edited for sexual purposes, in particular to combat revenge porn.

But what is a deepfake? The Merriam-Webster dictionary defines it as "an image or recording that has been convincingly altered and manipulated to misrepresent someone as doing or saying something that was not actually done or said". The link between deepfake and the protection of performers' rights is made at the point of speech. For example, artificial intelligence-generated "covers" of Dua Lipa or Queen songs by Franck Sinatra are flourishing on the net: software reproduction of the voice has become child's play.

According to Article L. 212-1 of the French Intellectual Property Code, a performer is "anyone who represents, sings, recites, declaims, plays or in any other way presents a literary or artistic work, a variety show, a circus or a puppet show"; Articles L. 212-2 and L. 212-3 state that "performers have the right to respect for their name, their status and their performance" and that "the fixation of their performance, its reproduction and communication to the public, as well as any separate use of the sound and image of the performance when it has been fixed for both sound and image, shall be subject to the written authorization of the performer": these are copyright-related rights granted to the performer.

Although Article L. 335-4 of the French Intellectual Property Code provides for penalties for infringement of rights related to copyright, it is obvious that at the time it was drafted, artificial intelligence was not as widespread as it is today and deepfakes were clearly the stuff of science fiction. By creating a new legal basis that brings deepfakes into the criminal sphere, the penalties imposed on offenders would act as a strong deterrent.

Just recently, the use of artificial intelligence to reconstruct General de Gaulle's voice during the appeal of 18 June 1940 sparked a debate about the legality of such an action. But the General is no longer here to make his voice heard...

As the law is still at the draft stage, only time will tell what impact the provisions on deepfakes will have on the protection of performers' rights.

Do you want to enforce your rights as a performer? MARS-IP's expertise in intellectual property law will support you in your efforts under French and German law. Contact us for further information.

Photo by Gerd Altmann from Pixabay


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