US 'No Fakes Bill' Proposes Intellectual Property Rights to Combat Deepfake Threats

The Rise of Deepfakes and Their Potential Dangers

The term "deepfake," once unfamiliar to most, has now become a subject of intense legal scrutiny worldwide. These AI-generated digital replicas can simulate the visual and vocal appearance of real people, both living and deceased 1

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. The unregulated use of deepfakes poses significant risks, including financial fraud, political disinformation, fake news, and the creation of AI-generated pornography and child sexual abuse material.

Impact on Entertainment Industry and Job Market

For professional performers and entertainers, the proliferation of deepfake technology threatens their ability to control and monetize their images and voices. There are concerns that deepfakes could potentially replace human actors in various media, raising questions about job security in the entertainment industry 1

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The US "No Fakes Bill": A Potential Solution

In response to these challenges, the United States Congress has introduced the Nurture Originals, Foster Art, and Keep Entertainment Safe Bill, informally known as the "No Fakes Bill." This legislation proposes a new federal intellectual property right that individuals can use against creators and disseminators of deepfakes 1

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Key features of the bill include:

1. Expanding IP protections to "everyday" individuals, not just celebrities.
2. Allowing individuals to seek damages and injunctions against unlicensed digital replicas.
3. Permitting the licensing of digital replicas with specific conditions.
4. Providing freedom of expression safeguards for commentary, criticism, scholarship, satire, and parody.

Potential Pitfalls and Limitations

While the bill offers promising solutions, it also has potential drawbacks:

1. The threshold for protection may be too high, requiring digital replicas to be "readily identifiable," which could exclude everyday individuals 1

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2. The scope of licensing provisions could potentially allow individuals to unknowingly sign away all uses of their images and voice 1

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3. The bill does not address reputational interests of individuals who license their digital replicas 1

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4. It lacks measures for site-blocking orders, which could limit relief for victims of deepfakes hosted on foreign websites 1

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Global Implications and New Zealand's Perspective

As the US debates this legislation, other countries, including New Zealand, are closely watching its development. New Zealand is considering its own measures to combat deepfakes, such as:

1. Extending prohibitions in the Harmful Digital Communications Act.
2. Amending the Crimes Act, Fair Trading Act, and Electoral Act 1

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However, there is also pressure to ensure that regulations do not hinder investment in AI technologies, as highlighted in a 2024 cabinet paper 1

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The Way Forward

While the No Fakes Bill is not a comprehensive solution to the deepfake problem, creating an IP right could be a valuable addition to a suite of measures aimed at reducing the economic, reputational, and emotional harms deepfakes can inflict. As technology continues to advance, a multi-faceted approach, including disclosure obligations for digital replicas, will be necessary to address the challenges posed by deepfakes 1

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