The “Magic Avatar” and the world of artificial intelligence: lights and shadows of a trend that “revolutionizes" privacy and copyright
On December 7, 2022, “Lensa” has turned out to be the most popular iPhone app on the Apple store. The reason? Although “Lensa” has been on the market since 2018, last November it launched a new feature called “Magic Avatar”: taking advantage of artificial intelligence, this feature allows users – upon payment of a fee - to transform their selfies into virtual avatars.
At first glance, once does not catch the problem arising from an avatar who shows the face (clearly enhanced) of the subject of the selfie; however, upon closer analysis, there are several legal issues connected to the use of this “Lensa”’s feature.
Indeed, the application thereof works thanks to artificial intelligence and on the basis of a huge amount of data (so-called “datasets”) which are stored and used to improve the performance of the application itself. In most of the cases, these datasets are nothing more than images collected randomly on the web in relation to which obviously there is no real control on the existence of any rights. This is the first problem: the diffusion and collection of illustrations without the consent of the artists who previously created them turn out to be a copyright’s infringement. Authors are not recognized of any contribution or prize for their works – which, instead, should be guaranteed to them pursuant to the Copyright Italian Law (l. 633/1941 and subsequent amendments) – and they also find themselves competing with artificial systems which are able to “emulate” their style in few minutes.
The problem does not concern the avatar generated by “Lensa” application, but the huge number of images extrapolated from the web, used by the system to trains itself and from which it must “learn” to then reproduce the avatar. The consequences of such a trend should not be underestimated since it is fair to wonder whether one day the artificial intelligences might completely replace human activity. Such undesirable scenario is not so unlikely if we consider that the treatment of visual works created by the use of artificial intelligence’ systems is currently being studied by the US Copyright Office.
In order to (partially) face this issue, the website “Have I Been Trained” has been created to help content creators carry out research aimed at understanding whether the datasets used by artificial intelligences unlawfully reproduce their creations.
There is also a second and more worrying aspect concerning the processing of personal data by “Lensa”. Upon payment of a very low amount to generate the avatar, people provide the application with personal data and information that may also be used for purposes completely different from the creation of “filtered images” and that have therefore a significant economic value. This is one of the main complaints made against this app, namely that, once installed, “Lensa” collects more data that those necessary for its operation, transferring them to servers located in the USA (where the company’s registered office is located). That’s enough to state that the data processing does not comply with the GDPR.
Indeed, Lensa app’s privacy policy states that users’ biometric data (defined under Art. 4 par. 14 of GDPR as “those personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data”) would be delated from the servers once the app has used them to generate the Magic Avatar.
The point is that – as often happens – “Lensa”’s privacy policy is long and complex, namely it adopts legal terms difficult to be understood by the users; for example, we read that “Lensa” does not use “facial data” for reasons other than the application of filters, unless the user gives consent to use the photos and videos for a different purpose. This might seem comforting but, on a deeper analysis of the terms and conditions, it turns out that “Lensa” reserves far broader powers – of distribution, use, reproduction, creation – over the work raised from user content, subject to an additional “explicit consent” required by the applicable law (i.e., the various national laws).
But where does such “explicit consent” come from? Easy: by sharing the avatar on the public or tagging “Lensa” on social networks, even via hashtag, the user gives consent to use that content and thus authorizes the company to reproduce, distribute and modify it. This licence – which ends with the deletion of the account – is justified in Lensa’s privacy policy on the basis of the so-called “legitimate interest” (i.e. “it is our legitimate interest to make analytics of our audience as it helps us understand our business metrics and improve our products”).
However, this statement raises some concerns, especially in the light of the decision issued by the Italian Privacy Guarantor concerning the social media “Clubhouse”, according to which company’s “legitimate interest” is not the proper legal basis for processing such data and therefore it is not correct either for carrying out data analysis or for the systems “training” process.
In the end, artificial intelligence undoubtedly represents an epoch-making technological evolution, but its use may imply the risk of un unlawful compression of users’ rights; indeed, a European Regulation on artificial intelligence aimed at defining the scope and conditions of its use has been under consideration for some time.
In this respect, hopefully “Lensa” application will take steps as soon as possible to protect the illustration creator’s rights through the recognition of a proper remuneration to them, and so that the user data will be collected and processed correctly, in accordance with applicable privacy’s laws.
Copyright Directive: an open challenge
The path leading to the implementation of the Copyright Directive has been long and full of setbacks. Indeed, it was only on 6 August - two months after the deadline set by the Directive itself - that the Council of Ministers approved the draft Legislative Decree implementing the Directive, which is now once again being discussed by the Parliament.
One of the elements that has contributed to slowing down the legislative process of this new text is the objective it pursues, namely the rebalancing of the relationship between, on the one hand, the large digital platforms that disseminate and aggregate creative content and, on the other hand, the producers, authors and performers of such content.
From that perspective a number of innovations have been introduced, as listed below, which have given rise to much debate and concern:
- Article 13: establishment of an impartial body to assist creators of audio-visual works in negotiating licensing agreements with video on demand service platforms (such as Netflix, Prime Video, Disney Plus, etc.). This therefore is an instrument for the protection of authors and their rights which aims solely at limiting the enormous bargaining power that digital platforms use to their advantage against those parties;
- Article 14: free use of acts of reproduction of works of the visual arts that have entered the public domain because copyright protection has expired. Basically, if a work of the visual arts, such as a painting or a film, falls into the public domain and is reproduced in a video or in any other form of communication by a third party, the latter cannot claim any right over such act of reproduction, unless it constitutes an autonomous intellectual creation of the author and can be protected as such;
- Article 15: introduction of a new related right in favour of publishers of journalistic publications for which they must be remunerated for the online exploitation (reproduction and making available to the public) of these publications by digital platforms, such as Google, Bing, Yahoo; the same article also provides for the obligation of the same publishers to pay a reasonable share of the revenues generated in favour of the authors of the publications. Such fair remuneration has given rise to a number of uncertainties, since the decree in question, instead of limiting itself to providing for the right of publishers to negotiate a remuneration (as provided for in the text of the Directive), has provided for the obligation to negotiate a fair remuneration. Moreover, if the parties in question are unable to agree on this point, AGCOM (the Italian Communications Authority) will act as “referee” in identifying such remuneration;
- Article 17: obligation of online content sharing services, such as Facebook, YouTube, Telegram, to obtain the authorization from rights holders to share protected content on their platforms. Sharing services therefore will be directly liable for copyright infringements committed via their platforms, unless they can prove that they have obtained the authorization from the rights holders to disseminate protected works or at least have made “best efforts” to obtain such authorization or to remove unauthorised content.
The use of the term “best efforts” to assess whether or not the conduct of the platforms may be sanctionable will certainly create several problems, especially of an interpretative nature; for the time being, this expression has been translated in the decree under review as the obligation to adopt the “maximum efforts”, thus favouring an extensive and quantitative interpretation that imposes and therefore requires greater control by the platforms;
- Article 17: introduction of complaint and fast-track redress mechanisms for users in the event of disputes that concern content removal or account disabling by platforms, as well as information requirements for platforms concerning the conditions and terms of removal of uploaded content.
The innovations listed above undoubtedly constitute a major challenge because of the economic interests that are involved. The objective of the directive certainly is a bold one in that it seeks to change the rules of the game in order to redistribute the value generated by the activity of the platforms and “give it back” to the creators and authors of the contents.
In that regard, the obligation for publishers to reach agreements with large information aggregation platforms such as Google for the purpose of obtaining remuneration for the use of their publications is an historic legislative change, albeit one that risks cementing the predominance of those publishing houses that have sufficient resources to engage in such negotiations. This imbalance is even more evident if one considers that art. 1, para I, lett. b (8) of the decree includes, among the criteria for quantifying this remuneration, the higher number of views or the reputation of the publisher itself.
Equally relevant is the provision of a “maximum effort” to be borne by the sharing platforms in removing illegal content uploaded by users. However, the choice of the Italian legislator to prefer the quantitative criterion, which seems to refer to the amount and pervasiveness of the checks carried out, introduces a potential risk of indiscriminate removal of content by extremely “sensitive” detection algorithms, which certainly contrasts with one of the stated objectives of the directive, namely, to preserve the right of criticism and satire of users. On the other hand, a “qualitative” interpretation of this obligation could have been preferred, namely a “better effort” on the part of the platforms, one that would be proportionate to the seriousness of the violations and their diffusion.
The decision by the Italian Government to depart in part from the text - and from the spirit - of the directive has been the subject of a lengthy debate, to the extent that it has raised in more than one person the doubt of an excess of delegated powers or of so-called “gold plating”, i.e. the practice whereby the national legislator goes beyond what is required by European legislation, while formally remaining within the perimeter of its own discretion.
Hopefully, in the final version of the decree the Italian legislator will pay more attention to the aim of harmonisation that all European directives pursue, which in this case requires the adoption and definition of a common “European approach” to digital copyright in the coming years. This approach will in fact allow the individual countries of the Union to effectively interact with the so-called “web giants” and finally take a firm stance against them (which so far has been completely lacking).
Copyright and videogames: Insight hold a lecture on copyright and video games at Bocconi University in Milan
Insight's Digital Entertainment team held a guest lecture at Bocconi University for the students of the master's degree course in law, as part of the "European and International Intellectual Property Law" module. Insight dealt, in particular, with the issues of the legal classification of videogames as works protected by copyright and the reproduction of Italian cultural heritage assets in videogames.
Insight talks about live entertainment and its exploitation on streaming platforms
Insight was invited to a meeting on "Streaming and copyright and image rights at the time of social distancing" organized by the ethical table of A2U - Attrici e Attori Uniti. Insight spoke about copyright, neighboring and image rights of live entertainment actors, focusing on the opportunity to exploit theatrical works via streaming platforms to face the impossibility of a live attendance caused by the COVID-19 emergency.