AI has been a disrupting technology in many industries, but the one most people know about is in the arts. There is still a lot of work ahead, but the U.S. Copyright Office has just produced the first report on AI which addresses the videos, images, or audio recordings that have been digitally created or manipulated to realistically but falsely depict an individual, also known as deepfakes. To learn more about what the report covered, One of its authors. Andrew Foglia is Deputy Director of Policy and International Affairs with the U.S. Copyright Office, joined the Federal Drive with Tom Temin to discuss more.

Interview transcript: 

Eric White  AI has been a disrupting technology in many industries, but the one most people know about is in the arts. There is still a lot of work ahead, but the U.S. Copyright Office has just produced the first report on AI, which addresses the videos, images or audio recordings that have been digitally created or manipulated to realistically but falsely depict an individual, AKA deep fakes. To learn more about what the report covered, I had the chance to speak with one of its authors. Andrew Foglia is deputy director of policy and international affairs with the U.S. Copyright Office.

Andrew Foglia  We are writing a large, multipart report on artificial intelligence and copyright, and this starts back over a year ago. We launched this AI initiative to consider these different issues. We held public listening sessions in the spring of 2023 where we heard from different participants about their concerns and hopes for AI and copyright, and we met with stakeholders. And out of all that work, we were able to produce what we consider the most interesting and relevant questions to ask. And in August of 2023, we published a notice of inquiry where we essentially asked the public about a huge range of questions related to copyright AI, and we received over 10,000 comments in response to that notice of inquiry. And after taking time to go through those comments and sort of group them by category and topic and interest, we decided to publish, like, as I said, a multiple part report, and the first part, which we published at the end of last month, focuses on digital replicas that is digitally created or manipulated images that falsely represent a person doing or saying something they didn’t actually do or say. They’re sometimes called deepfakes. So that’s part one. And then we’ve got additional parts coming up on other issues. For example, there’ll be a part on whether or when you can copyright the output of a generative AI system. There will be our part talking about the use of copyrighted works to train AI models, and there will be other issues, like potential liability for AI systems infringing copyright or licensing considerations. And so all those are parts we’ve been all those parts we’ve been working on in parallel with this report, and we’ll be issuing those as we complete them.

Eric White  Yeah. So let’s get into this first part then, and we’ll keep an eye out for those other parts. Maybe have to just have a recurring visit from you every so often. The big takeaway for me was, you know, right at the top, you all start off by explaining how existing laws do not provide sufficient legal redress for those harmed by unauthorized digital replicas, and propose the adoption of a new federal law. So basically, what you’re saying is the laws on the books aren’t enough right now, and we’re going to need some new regulations in place. So that means you’re going to have to get Congress and the White House involved here, and they’re already taking this issue up as this issue is at the forefront. What is it about the current laws that just don’t fit the mark for digital replicas and protecting those who are going to have their likeness almost stolen?

Andrew Foglia  Yeah. So as you mentioned, there are existing laws at both the state and the federal levels that are relevant to digital replicas. At the state level, probably the most relevant are what are called rights of publicity. And the thing is, not all states have rights of publicity, and the states that do have rights of publicity don’t necessarily cover all of the harms that you’d want to cover. For example, some of them apply only to famous people or only to people with commercially valuable voices or images or names, and some of them cover images but not voice. At the federal level, you don’t even have a federal right of publicity. You have other laws that may be relevant. Just to take one example, copyright laws, copyright office. Copyright protects particular works. So to the extent somebody uses an existing copyright protected work to manipulate it and create a digital replica, the owner of that copyright might have some action, but the individual depicted may not. Copyright just doesn’t protect your image or voice as such. And that state of affairs has existed a long time, and some kinds of manipulation with digital images has existed for a long time. The thing that’s different is, in the age of AI, generative AI has made it so much easier to produce digital replicas at a speed and at a scale that really we think existing laws are just not sufficient to meet.

Eric White  All right, and so you’re calling for new laws from, obviously, the lawmakers. But in the meantime, what does that mean for the copyright office? What are you all going to be undertaking to ensure that you can do you know as much as you can, to protect those individuals that you mentioned?

Andrew Foglia  So the copyright office is, of course, available to Congress to advise on any work they’re doing in this space. We wrote this report in part to be helpful. In fact, one of the reasons this the first part of report issues. We knew this was an area of interest to Congress, and so it was also obviously of tremendous interest to individuals who wrote to as I mentioned earlier, that we had those 10,000 comments come in on our notice of inquiry. Around 1,000 of them addressed this issue specifically, and most of those were supportive of a new federal law. So the main thing we’re doing, frankly, is moving up our work on this specific part of the report, and having completed this part of the report, we are now available to Congress to work with them in any capacity to help advance their work on these issues.

Eric White  And I don’t know how much of this information is protected, but on those 10,000 commenters, did you have any famous folks who may have said, hey, I’m a little bit worried about my face being used for something I didn’t agree to, and it’s not really me?

Andrew Foglia  Yeah, so we had an interesting bunch of commentators. I cannot remember a specific, there were absolutely individual actors who wrote in. I can’t remember names off the top, man.Llike of the famous people, just because I’m a sci-fi nerd, N. K. Jemisin wrote in, and obviously was not worried about necessarily her like, voice or image being stolen, but that’s somebody who was writing in. We also had, I mean, we had many performers, many, like, guilds. We had a football league right in. We had a middle school classroom. And that was actually one of the most fun parts of this whole process, is the breadth of comments we received. So well, I can’t think of an individual performer off the top of my head. There were some big names in our comments.

Eric White  Gotcha. All right. So I guess so the next report is coming or the next parts are coming up of this issue. Obviously, the technology is only going to get more and more advanced. How are you all going to, I guess, stay abreast to the changing landscape that AI has created when it comes to copyright law, in particular when it when it relates to the arts and things of that nature?

Andrew Foglia  Yeah, that’s really one of the most interesting and challenging questions about this process is that this is a moving target. And a very fast moving target, and that’s part of the reason we spent so much of last year before we even dove into these reports, before we even published a notice of inquiry, having these listening sessions with stakeholders, meeting with stakeholders across the spectrum from individual artists to industry associations to technology companies, and while we are no longer in that state of the report, we’ve moved on to writing. We are continuing to follow the news as closely as possible. We are continuing to meet with other government agencies to talk about what they know about the technology and what they are learning. We know that fellow agencies, like the U.S. Patent and Trademark Office, are studying these issues, and we are, I can assure you, reading as much of the literature behind the scenes as possible. I think every day in the office, people are sharing a new article, either popular articles, but also actually machine learning articles as well. That can be sometimes above my math level, but we are doing our best to stay abreast of it.

Eric White  Yeah, and in those conversations, I’m curious, you know, just how meta do they get? I mean, this is almost going back to a philosophy side of what is true creation, you know, because can it be that, is a music producer, technically, you know, creating that music if they’re an EDM artist and they’re just using a machine to create it? I mean, just, where do you all draw the line of, no, this is pure creation, and this belongs to somebody, this intellectual property came from this intellect?

Andrew Foglia  Yep, I think you have put your finger on one of the two biggest questions in this space, and that is really what sometimes called the copyrightability question, or the authorship question. It’s like, when does human contribution to these AI systems, when does that cross the line to where you would call the human the author of them? And I think that is one of the great challenges of AI, is it really puts pressure on our intuitions about who counts as an author, and that’s going to be one of the big subjects of a future part of the report, we think, as I said, we’ve been working on all these reports in parallel, so we are hoping to have a report out on that in the near future.

Eric White  And you all did say that federal law could help set some of this up, obviously not going one way or the other of what you would like that law to say. But what kind of law could Congress potentially pass to help guide you all a little bit better, you know, just at least set some ground rules that you all can work with?

Andrew Foglia  So for digital replicas, specifically, the kind of law we are recommending is a law that protects all individuals during their lifetimes from unauthorized uses of their digital replicas that has a few pieces. One, it protects all individuals, not merely celebrities or not merely commercially valuable people. Second, it protects them during their lifetimes, not just a part of their lifetimes. Third, it protects against knowing distributions and not merely like accidental because part of the issue is people might not know they’re distributing a deepfake. That’s the nature of these to be deceptive. And then there are a few other issues that we also make talk about, for example, whether or when you should be able to transfer your protections to another person, what kind of remedies you should be able to get if somebody violates your digital replica right, and also, what kind of First Amendment accommodations does a law need in order to ensure that, like first I mean, it’s just like, when can I use a digital replica to parody somebody or in my own artistic work? And those are difficult questions, and we try to make some recommendations on those in our report.

Eric White  Yeah. And the final question here, and I’m sorry, I just keep on finding little tidbits to hone in on, and that’s the issue of post mortem rights, because that is another big push that a lot of folks have had is, man, wouldn’t it be great if we could get Clark Gable back in the movies again, and it wouldn’t be really him, but it would almost feel like it, wouldn’t it?

Andrew Foglia  Yeah, that’s a fascinating one. So we see in this report that at the state level, many states do extend their rights of publicity post mortem. And in our report, we say, at the federal level, for this law, the harms we’re talking about are mostly harms that are concentrated among the living labor, displacement, deepfake pornography, political misinformation. So the main subject to concern are living people that said, we’re not recommending that you get rid of those state law protections that extend post mortem. If states want to continue offering post mortem protections, they would be free to do so under our recommendations. And again, we’re merely recommending this to Congress. We don’t we’re not drafting a law right now, and we saw in our comments some division over how to treat post mortem right some people. Say, hey, this is necessary to protect the dignity of persons. Let their families protect their dignity. Let their families continue to, you know, gain commercial value from what they did during their lifetimes. And other people say, like, I think a little bit like the concern with the like, ghost Clark Gable that you were raising. Hey, if we have these rights, isn’t this going to set up a situation where people were like, living actors or, like, running out of work, because Hollywood just keeps playing the hits by bringing back the ghost of performers past or in a situation where we’re just going to be inundated with like, you know, the entertainment of dead people rather than the living. So we considered both sides of the document. We made our recommendations.

Eric White  Yeah, and not to harp on the point, but you know, at what point does their likeness become a public entity, right? I mean, the Star Spangled Banner can be played by AI? Why can’t Clark Gable, who, for years, made all his money from being a public figure, why can’t someone just necessarily use his likeness and profit from it, right?

Andrew Foglia  That is exactly the kind of public policy question buried within the details. And what, frankly, made this a difficult report to write, and I think it’s one of the reasons the difficulty here is one of the reasons that we were content not to recommend preempting state laws, but to allow states to continue experimenting in their own way with these public policy questions.

Eric White  All right, well, I’ll let you get back to it, and I won’t hold you up anymore with my silly scenario questions.

Andrew Foglia  Not silly, not silly at all. Months and months talking about them here.

Eric White  That’s Andrew Foglia, deputy director of policy and international affairs for the U.S. Copyright Office. We’ll post this interview along with a link to his report online. Go to federalnewsnetwork.com and search Federal Drive. You can also subscribe to the show wherever you get your podcasts.

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