Several parties in the Dutch House of Representatives are watching developments in Denmark with interest, where people were recently granted copyright over their own face and voice. The aim is to provide a weapon in the fight against deepfakes, AI-manipulated images and sounds that are often almost indistinguishable from reality. A parliamentary majority now wants to know whether such an extension of copyright law would also be possible in the Netherlands. The goal is to offer better protection to victims of online abuse. But is this legally feasible? And what would it mean in practice? In this article, Evert Stamhuis, Professor of Law and Innovation at Erasmus School of Law and affiliated with the Law and Technology master’s programme, addresses these questions and outlines the legal framework.
Portrait rights, privacy, and copyright
According to Stamhuis, the current law already provides tools to combat misuse of face and voice. Facial and voice recognition data, for example, are regarded as biometric data. “These data therefore enjoy a heightened level of protection under the GDPR,” Stamhuis explains. In addition, Dutch copyright law provides protection through portrait rights. “It does not seem difficult to assume a legitimate interest on the part of the depicted person in opposing the use of their image in deepfake material.”
Voices, however, are more complicated, the professor concedes. Although the misuse of audio is often unlawful, it is unclear whether extending copyright would add much. “After all, you yourself must take legal action against misuse in order to obtain compensation. That demands a great deal from the individual.” Still, Stamhuis notes that one possible advantage could be that the unlawfulness of such content becomes less ambiguous, enabling platforms to be more readily called upon to remove it.
The role of major platforms
The fight against deepfakes, Stamhuis argues, largely depends on the attitude of major platform companies. They already have a statutory duty to combat illegal content. “That consists of a system of self-initiated moderation combined with a built-in mechanism to take content offline once it has been reported.” This so-called notice-and-take-down procedure can be particularly effective when civil society organisations cooperate in detecting illegal material.
In practice, however, platforms do not always prove cooperative. Stamhuis observes: “Some providers are not necessarily loyal to the affected individual. They contest that the content is obviously illegal, they argue that it may fall under freedom of expression, and some still claim that they are merely intermediaries.” An extension of copyright to face and voice could, according to Stamhuis, make a difference here, as the debate over unlawfulness would be more decisively settled. Yet he also points out the limitations: “Since many tech companies are based in the United States, a ruling by a national legislator in the Netherlands or Denmark may have less impact on a platform provider’s stance than one might hope.”
International context
International developments also affect the Dutch situation. For instance, the EU has not classified deepfake technology as “high-risk” under the AI Act, meaning that providers face only limited obligations. For now, requirements go no further than ensuring transparency when AI is used in communication. Meanwhile, the European Commission is working on proposals regarding the fight against online child abuse, some of which may also be relevant for deepfakes.
There is also a recent UN treaty requiring states to criminalise the distribution of intimate images without consent. “Unfortunately, the text of that treaty does not address deepfake video material.” As a result, both international and national law remain fragmented, Stamhuis argues. “The use of face and voice in deepfake videos can only be prosecuted under criminal law when other offences are involved, such as extortion, defamation, non-consensual sexting, stalking, and so on.”
Freedom of expression and artistic freedom
An important question is what consequences copyright over face and voice would have for freedom of expression, satire, and art. Stamhuis foresees discussions similar to those around caricature and satire. “Public figures, such as politicians, vloggers, regular talk-show guests, and the like, will have to tolerate a little more than an ordinary individual when it comes to mockery or satire using their face or voice.” According to the professor, the courts can strike a balance here between protection against misuse and preserving space for public debate.
Another concern is enforceability, especially when deepfakes are spread via the dark web. “If the misuse of face or voice is disseminated through the dark web, combating it with any instrument will be problematic. Only once a deepfake product surfaces, so to speak, can action be taken.”
Between aspiration and reality
The idea of granting citizens copyright over their own face and voice may, on paper, seem an attractive way of giving victims more control. Yet Stamhuis cautions against overestimating its practical impact. He therefore doubts whether extending copyright will deliver the much-hoped-for breakthrough in the fight against deepfakes.
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