Deepfakes are the new kid on the block, be it your favourite political parties’ campaign being jeopardised by that unoriginal yet infamous clip that went viral, or your favourite movie star being portrayed unethically on pornographic sites, they seem to be everywhere. Unfortunately, as the status quo stands the technology which etymologically is derived from the combination of “deep learning and fake”, finds itself in the headlines for its misuse than the alter.
The question to ponder over purely from an IP lens is whether or not the use of deep fake amounts to a copyright infringement? As deep fake involves fabricating a photo or a video of a person to create it, they are under the Indian law[1] an infringement of the copyright. Section 17 of the Copyright Act, 1957 defines that an author or a writer has the first ownership rights to a creation. In case of a photograph, the author is the photographer and for a video format, it is the producer of the video. Further, Section 14 of the Act also provides exclusivity in licensing to a copyright owner and other person using even a photo or any element from the work in doing it against the Section. It is also of note that deepfakes (especially ones commonly used with a wrong intent) will not be covered under the defence of fair dealing u/s 52, which covers a gamut of acts which won’t constitute infringement of a copyright. Therefore, in light of these provisions of the copyright regime in India, a deep fake will constitute an infringement of a copyright.
The infringement will bring in both criminal and civil actions under Section 63 and 55 of the Act respectively. Liability also arises on account of application of the IPC[2] and the IT Act. IPC Sections 499 for 500 will apply for defamatory act, in addition Sections 354 (spreading fake pornographic videos) and 354A (sexual harassment) will also apply. Deepfakes also amount to obscenity and therefore violate Section 67 of the IP Act, 2000[3] and Section 66E for violation of individual privacy.
Even after the intellectual property protection and the liabilities attached thereof, a deepfake is further against the personal and moral rights of the author, especially when the work is distorted and mutated and put into a morally and legally wrong way.
The deepfakes are a modern marvel of the 21st century, which if used in a progressive and constructive way (medical and criminal forensics among many others) are an asset which shall and are protected under the Copyright Act by the defences of fair dealings, but in as far as the deepfakes for pornographic or defamatory purposes are concerned, which is the more prevalent use of the technology, the creator of such deep fakes is for under both civil and criminal actions for the infringement and also is liable under various provisions of IT Act and the IPC.
By
Ranjul Malik
Army Institute of Law, Mohali.
1st Year Student
[1] The Copyright Act, 1957
[2] The Indian Penal Code, 1860.
[3] The Information Technology Act, 2000
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