Written Evidence Submitted by Equity

(GAI0065)

About Equity

Equity is a union of more than 47,000 performers and creative practitioners, united in the fight for fair terms and conditions in the workplace. Our members are actors, singers, dancers, designers, directors, stage managers, puppeteers, comedians, voice artists, and variety performers. Our members work on stage, on TV sets, on the catwalk, in film studios, in recording studios, in night clubs and in circus tents.

For more information regarding this submission please contact Louise McMullan lmcmullan@equity.org.uk and Liam Budd lbudd@equity.org.uk

Summary

The UK performing arts and entertainment industry is an undeniable global success story by any measure creatively and financially. Our live performance sector is thriving across every region and nation of the UK and a huge driver of inbound tourism, and copyrighted works in recorded media are disseminated around the world. The creative talent of our members is a driving force behind the strength of our industry, as well as the strong and equitable collectively bargained agreements reached between Equity and engagers, such as those across film, TV and theatre. 

Market developments and technologies continue to transform the production and publication of audio and audio-visual content, as well as audience viewing habits. The use of Artificial Intelligence (AI) is advancing significantly with commercial AI companies growing across all areas of the industry. These developments present exciting opportunities to enhance our members’ working lives if applied ethically and responsibly. However, the entire industry must carefully consider the potential unintended consequences, and the creative workforce and their trade unions must be central to discussions regarding its implementation.

The government's current policy agenda also has the potential to significantly impact the workforce. Last year a new ten-year plan was announced to make the UK a global AI superpower. However, there is no desire to strengthen our outdated intellectual property framework, which is vital for ensuring performers can control the exploitation of their image, voice or likeness in the digital world.

We are working hard to protect our members and ensure that the development of new technology recognises and rewards the contribution of our members to its success. Producers and engagers across the entire industry must engage with Equity though our collective bargaining process to ensure there is strong industry regulation in place that reflects ongoing developments in new technology. The government must also update the Copyright, Designs and Patents Act (1988) and introduce a new suite of intellectual property rights, including updated performer’s rights, moral rights, economic rights and image rights.

We welcome this timely call for evidence by the Committee and would like to register interest in giving further written and/or oral evidence as this Inquiry continues to progress.

National AI Strategy

The government’s existing National AI Strategy is not sufficient at supporting the creative workforce to meet the challenges and opportunities ahead. When the strategy was first published in September 2021, it acknowledged the profound impact AI will have on businesses across the UK and the wider world and outlined their desire to fully unlock the power of AI and data-driven technologies whilst ensuring all sectors benefit.  In line with this strategy, the government has delivered two separate consultations looking at our Intellectual Property (IP) system in relation to AI.  The Intellectual Property Office (IPO) has recognised that “AI is playing an increasing role in… artistic creativity”.   They have also acknowledged “concerns that mass-produced works generated by AI could devalue human creators” and that they “should not undermine copyright’s central role in rewarding artistic expression and talent”.  However, specific questions about reviewing or enhancing performers’ rights were notably absent from both consultations. This is especially disappointing given that the government have stated publically that they are “committed to exploring the opportunities which might come from a change to the (copyright) regime”.  

On 28 June the government published the outcome of the latest AI and IP consultation.   Although the government acknowledged our submission, they were not convinced about the need to update our intellectual property framework and instead have adopted a 'wait and see' approach:

82.  Some respondents raised concerns about the impact of AI on performers. This includes concerns that computer-generated performances might replace human performers. The effect on audio performances (such as audio-book narration and voice-overs) was a particular worry. There are also concerns that computer-generated performances provide greater opportunities for using performers’ images, voices or likenesses without permission. For example, in ‘deepfakes’. Some stakeholders called for an expansion of the scope of performers’ rights in the Copyright, Designs and Patents Act 1988 to address these issues.

83. We take these views seriously. But, at this stage, the impacts of AI technologies on performers remain unclear. It is also unclear whether and how existing law (both in the IP framework and beyond it) is insufficient to address any issues. If intervention is necessary, the IP framework may not be the best vehicle for this. We will keep these issues under review from an IP perspective.

In direct response to the questions posed in the consultation, the government concluded that they will not introduce copyright protection for computer-generated works (CGWs) without a human author. We welcome this decision.

It is our view that copyright should always be tied to the actions of a human and therefore limited to human-authored or human-assisted AI works. No intellectual property should vest in purely AI creations. Vesting copyright in AI-generated content presents many challenges, concerns that have been raised by academics, lawyers and producers across the UK and globally. For example, the concept of authorship is not readily applicable to AI-generated works because the existing copyright regime assumes an author to be a natural person. This ties the term of copyright protection to a certain period beyond the author’s lifetime.

On 18 July the government published a new policy paper on regulating AI.  According to the government, the proposed regulatory framework will be rooted in a set of cross-sectoral principles and be placed on a non-statutory footing that is supported by guidance. Crucially, the government stated that they do not intend to create an extensive new framework of rights for individuals, which is extremely disappointing. Aligned this statement the government has published another consultation, which includes a question about the challenges facing businesses. Once again, the scope of the consultation does not include a review intellectual property rights for individuals and the creative workforce.

The proposed data mining exemption

The UKIPO has recently announced a proposal to introduce a new text and data mining exception to copyright protection for unlimited use by AI systems. Expanding the exception to any purpose and not allowing rights holders to opt-out will have potentially devastating consequences for the creative industry and its workforce. In practice, this could mean that any video or sound recording that is publicly available could be mined for free by third parties without the consent of the copyright owner to generate new AI content.

To position the UK as a leader in innovation, the government has adopted a free for all approach for text and data mining and is essentially granting AI companies unfettered access to all audio or audio-visual content. In essence, this is AI with no governance with all copyrighted material now up for grabs. This undermines the overarching objective of our entire copyright structure, which is to allow individuals to protect their work and stops others from using it without their permission.[1]  Many businesses have already voiced their significant concern.  For example, the Publishers Content Forum stated that the proposed exemption conflicts with international law. They have warned that certain businesses will have no choice but to exit the UK market or apply paywalls where access to content is currently free.[2] UK Music also warned that the proposal were “dangerous and damaging”, and “would give the green light to music laundering”.[3] The incentive to produce new creative work will also be significantly lower if existing catalogues can be accessed without any restrictions. For example, a streamed audio book featuring a voiceover artist provides sufficient content to create a voice clone and it will not be long before high-end synthetic voices reach human levels.

Equity is particularly concerned about the detrimental impact the copyright data mining exception for AI will have on performers’ rights. More specifically, we are concerned that the data mining exception will facilitate, if not encourage, infringing or inappropriate use of protected performances, on scale by fostering a “free for all” culture towards mining IP-protected content. It also unlikely that AI innovators, or their algorithms, will be able to differentiate between copyright-protected materials which can be mined (per the proposed exception) and performers’ rights protected materials which falls outside the scope of the exception.

On this point, intellectual property specialist Dr Mathilde Pavis from the University of Reading explains: “the distinction between copyright and performers’ rights is clear but fine point of law, which can be difficult to grasp in the context of sound and film recordings because they often capture materials covered by both copyright and performers’ rights. For example, the recording of a song may carry four separate copyrights in the (1) music, (2) the musical arrangements, (3) the lyrics and (4) the sound recording. The same recording will also carry two sets of performers’ rights, those belonging to the session musicians and those belonging to the singer. In this example, the proposed data mining exception would only apply to the copyrights, and should leave the performances protected by performers’ rights untouched. In practice, it is not feasible for AI systems to data mine music without data mining the performance which expresses the music. In practice, it is also not feasible for AI systems to make the distinction between data attracting copyright protection and data attracting performers’ rights protection. As a result, it is likely that the data mining of copyright content will result into the data mining of protected performances. This is concerning because the exception extends to “any purpose” of data mining.

We fear that the government has not considered these substantial knock-on effects on protected performances as part of any impact assessment carried out, particularly as performers’ rights were not within the scope of previous consultations looking at AI and IP. The legitimacy of the consultation process is also questionable. The government acknowledged that rights holders favoured no change to the current system and that the decision to move forward with the policy was based on limited quantitative evidence.[4] To protect performers and the wider public, the new legal text for any future exemption must explicitly specify that it does not include or extend to data that captures an individual’s image, voice, or likeness. Crucially, the government must provide additional clarity regarding the proposed safeguards for rights holders to protect their content, including a requirement for lawful access.

Intellectual property law

The rapid development of AI has reinforced the urgent need for the government to update the Copyright, Designs and Patents Act (1988). This piece of legislation was drafted a time when CDs and cassettes were mainstream and the World Wide Web not yet opened to the public. We are calling for a new suit of intellectual property rights, including updated performers’ right, moral rights, and image rights.

Synthetised performance rights

Currently performers have two sets of rights under the Copyright, Designs and Patents Act 1988: the right to consent to the making of a recording of a performance; and the right to control the subsequent use of such recordings, such as the right to make copies of recordings. In the context of this Act, a ‘performance’ includes a dramatic or musical performance, or a reading or recitation of a literary work, which is a live performance. By way of example, performers’ rights may enable a performer to prevent the issue of copies of unauthorised recordings of a recording of a performance, or otherwise prevent such a recording being made available via the internet. As such, performance rights are more particularly relevant for artists in a theatrical, dramatic and/or musical context.

AI-made performance synthetisation challenges our intellectual property framework because it reproduces performances without generating a ‘recording’ or a ‘copy’. Put simply, AI-made synthetisation generates digital sound and look-alike. We have raised concern that the legal framework for synthetisation of live performances using AI systems is potentially uncertain. This is because the legal text within the Act does not specify protection against unauthorized reproductions of a performance, via imitation, re-performance or synthetisation. The government has recently confirmed via a parliamentary written question (HL2336) that copyright provisions do apply regardless of the technology used to make such reproductions, including AI technology. This is a welcome development although further information and reassurances will be needed from the government.

Dr Mathilde Pavis from the University of Exeter argued in her written evidence to the IPO’s previous consultation that performers’ rights should be augmented with stronger provisions around the reproduction of performances.  Her recommendations are also follows:

Section 182(1) should be revised to include the synthetisation of live performances as an act of ‘recording’;

Section 182A of the Act should be revised to include the synthetisation of recordings as an act of making ‘a copy’;

Alternatively, Part 2 of the Act should be revised to introduce a separate right to control the reproduction of performances.

We agree with Dr Pavis’ recommendations and arguments. Improved legal protections will strengthen our member’s ability to control the unauthorised synthetisation of protected performances and form secure contracts to monetise their synthetisation. Augmented performers’ rights ensure that UK performers and this sector of the UK creative economy stay competitive in facing the challenges brought by AI systems to their industry. This is the opportunity to place the UK as a global leader in the protection of performers via performers’ rights.

Moral rights

Works can be very significant to the creator emotionally and/or intellectually. Moral rights, which protect those non-economic interests, are available for literary, dramatic, musical and artistic works and film, as well as some performances. Moral rights in the UK are weak for our member’s audio-visual performances because these rights only relate to the ‘aural’ or sound element of a performance. Equity has sought to rebut the presumption of a transfer of moral rights by encouraging the agent community to insert the following clause into the contracts. Such an action cannot be undertaken by Equity as it is down to the performers to assert the right.

“The Artist hereby asserts his/her moral right to be identified as a performer, conferred by section 205D of the Copyright, Designs and Patents Act 1988 as amended by the Performances (Moral Rights etc) Regulations 2006”

However, the rapid development of technology has reinforced the urgent need to improve the moral rights framework under the Copyright, Designs and Patents Act 1988 so that our members can control the exploitation of their work. The WIPO (World Intellectual Property Organization) Beijing Treaty on Audiovisual Performances, supported by the UK government and signed in 2013, extends moral rights to audio-visual performances.  The granting of moral rights in-line with the Beijing Treaty would enable performers, and Equity as their representative, to defend against AI-generated or AI-assisted deepfake content.  The treaty also includes the statutory provision of four kinds of economic rights for performances fixed in audiovisual fixations, such as motion pictures: (i) the right of reproduction; (ii) the right of distribution; (iii) the right of rental; and (iv) the right of making available.  Many of our members already benefit from these economic rights through Equity’s collectively bargained agreement and our mixed economy system of royalties, residuals and licencing.

The Beijing Treaty is the result of more than 20 years of persistent advocacy work by Equity, the International Federation of Actors and other performer organisations across the world. Equity was proud to attend the 2012 Diplomatic Conference in Beijing which finalised the Treaty. So far 47 contracting countries around the world have ratified the WIPO Beijing Treaty and many have implemented the treaty at a national law.  However, these developments have created contractual uncertainties and administrative burdens for engagers working cross-borders. We look forward to working with the IPO on a successful implementation of the Treaty in the UK.

Image rights

In the UK, there is no codified law of image rights or privacy. Instead, we have a patchwork of statutory and common law causes of action, which an individual can use to protect various aspects of their image and personality.  However, none of this fits the bill.  Advances in AI, including deepfake technology, has reinforced the urgent need to introduce of "image rights" (also known as "personality rights" or "publicity rights”). This refers to “the expression of a personality in the public domain” , such as an individual’s name, likeness or other personal indicia. Provisions of image rights in law enable performers to safeguard meaningful income streams, as well as defend their artistic integrity, career choices, brand, and reputation. More broadly for society, it is an important tool for protecting privacy and allowing an individual to object to the use of their image without consent.

Legal provision for image rights can be found around the world. For example, some American states recognize the right through statute and some others through common law. California has both statutory and common-law strains of authority, which protect slightly different forms of the right. The Celebrities Rights Act (1985) was passed in California, extending the personality rights for a celebrity to 70 years after their death. In 2020, New York State passed a bill which recognises rights of publicity for “deceased performers” and “deceased personalities”.

Guernsey has created a statutory regime under which image rights can be registered. The legislation centres around the legal concept of a ‘personnage’. They are the person or character behind a personality that is registered. The image right becomes a property right capable of protection under the legislation through registration, which enables the image right to be protected, licensed and assigned. Most people who have registered to date are image rights companies based on the island and/or those who are looking at innovative ways of protecting their persona.  The most coherent and desirable solution for the UK is for the government to provide for an image or publicity right through legislation, which extends post-mortem. A mechanism for registering image rights should also be created, similar to the system in Guernsey.

Collective bargaining

The strength of our industry is built on the strong and equitable collectively bargained agreements reached between Equity and engagers. The agreements in place across different sectors, such as film, TV, theatre, and dance, offer the best possible protection for the creative workforce by providing for the minimum terms and conditions for professional engagements. This industrial framework also provides a level of certainty for both the performers and the engagers and has created a landscape where individuals can flourish as workers. This has helped establish the UK as a centre of creativity and inward investment.

We also secure some ongoing payments for the exploitation of performers’ work in the UK and globally through our industrial agreements. Equity’s in-house Distribution Services, which has been operating for over five years, has paid out over £60 million in royalties and contractual secondary payments to tens of thousands of performers.  All payments administered by the distributions team are derived from our collectively bargained agreements with broadcasters, film studios, TV production and theatrical recording companies.

The development of technology is already challenging the collective agreements we have in place. As mentioned previously, production teams are using AI to reanimate the image, voice or likeness of deceased performers.  Not only does this raise ethical questions, but also challenges for performers’ unions across the globe as this innovation would not be covered in historic collective bargaining agreements. Producers and engagers across the Film and TV industry must work with Equity to negotiate new provisions covering performance synthetisation and ensure there is a system of consent and payment when historic performances are utilised by AI technologies, including after the event of a members’ death.

There are some areas of the entertainment industry where there are limited collectively bargained industry agreements in place, such as audio books, games, corporate work, radio commercials, TV, internet and digital commercials, modelling, and music videos. In these sectors where there is a lack of industry regulation, our members are often presented with take it or leave it contracts and asked to waive their moral rights and authorship entirely.

Producers and engagers across all areas including Audio, Games, Commercials must engage with the union, come to the table to negotiate new collective agreements. These agreements must ensure that our members can control the exploitation of their image, voice or likeness in the ever-evolving digital world and are paid a professional wage that reflects their skill and talent. To achieve this, creatives must receive:

• A fair share of the money consumers pay for copyrighted content or where their rights are transferred, broadcast and/ or sold.
• Appropriate and proportionate remuneration when they license or transfer their rights.
• Up-to-date and comprehensive information from assignees and/or licensees, at least once a year, outlining how their works has been exploited. This must include transparent calculations of contractual entitlements and relevant revenue and remuneration data.
• Additional, appropriate and fair remuneration from their contractual counterparty (including successors in title) where the remuneration originally agreed is disproportionately low compared to the revenues generated from exploiting the works or performances.

It is also important that technology companies that are delivering the AI technology work with Equity to negotiate new collectively bargained agreements. These companies are reshaping the arts and entertainment industry. However, they tend to be unfamiliar with the collective bargaining processes, which is the norm between producers and the union across the entertainment industry. This is vital for ensuring the industry can thrive alongside the development of AI, and for it to remain an area where performers can make a fair and equitable living from their craft and skill. Performers must receive fair compensation not just for their performance but also ongoing payments whenever their performance is used in the future.

A proposed approach to Governance of AI

In light of the above, we make the following recommendations for the implementation of the AI regulation framework:

1.              Introduce a new suit of intellectual property rights for performers, including synthetises performance rights, moral rights, and image rights.

2.              Abandon the proposed data mining exemption or at the very least specify in the legislation that it does not include data of an individual’s image, voice or likeness.

3.              Adopt a more balanced approach to regulating AI that champions the interests of the creative workforce and innovation that is used ethically and responsibly.

Failure to implement these measures will damage our world leading creative industry, an industry that accounts for 7% of all UK jobs  and contributes £116bn to the economy annually.  The government’s current policy approach also risks facilitating dystopian consequences not only for UK performers but also for society as a whole.

(November 2022)