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Disruptive technologies are a driver of change and progress in today’s society, but they also pose significant legal challenges in the realm of intellectual property, image rights and the protection of privacy and personal data. Technology is developing at a very fast pace, while the legislator’s response is lagging behind. We need to ensure a balance between the interests of creators, users and society at large and respect for the principles and values that underpin intellectual property.

Disruptive technologies are those that bring about radical changes in society and business models by offering innovative, efficient and accessible solutions that replace or transform existing ones. Disruption and change yield benefits, but they can also adversely affect those who were using a technology that has been replaced by a new one. For instance, photographers, illustrators and writers today are concerned that photographs, illustrations or writing generated by artificial intelligence (AI) are sparking a widespread public feeling that they may be replaced. Intellectual property (IP) and industrial property laws come into play in striking a balance between conflicting interests.

Copyright is characterised as a natural right to the fruits of one’s labour. With the advent of the printing press in the mid-15^th century, a decisive milestone in the development of copyright was reached, because it was the beginning of a market for intellectual work. Since it facilitated the reproduction of an infinite number of copies of works at low cost, as opposed to the inefficient system of copying books by hand, an economic profit was yielded from the distribution of copies. A distinction also began to be made between rights to the copy of the work (the original copy) and rights to its intellectual content (the genesis of copyright law). These early laws aimed to balance the interests of the parties involved: authors on the one hand and publishers on the other. Throughout history, as new technologies have developed, the legislator has provided solutions to allow for this balance.

The list of examples of intellectual works is welcome, because it improves the service’s adaptability to the growing production capabilities of generative AI, which in the future may cover any kind of creative sector. It also imposes an obligation on providers of generative AI models to train, design and develop the model in accordance with EU and individual countries’ copyright laws, before launching their service on the market. To this end, providers should publish a sufficiently detailed summary of the use of protected data.

The obligation of transparency

The transparency provision appears to require AI model providers to disclose a full list of the copyrighted content used to train their algorithms, along with clear identification of the rights holders. These transparency rules have presumably been introduced to allow rights holders to more effectively exercise the right to opt out of the text mining exception. It could also constitute a first step towards establishing an obligation to obtain a licence for the machine learning uses concerned.

Compliance with the transparency obligation regarding the work used seems rather unfeasible due to the low, not yet homogeneous, threshold of originality; the fragmentation of copyright across jurisdictions and its multiple ownerships; the absence of a mandatory registration process; and the general inadequacy of ownership status metadata.

A solution, albeit difficult to implement, that could efficiently reconcile the interest of AI developers with that of creators would be the introduction of compensatory remuneration. In other words, an obligation for providers of generative AI systems to pay for the use of copyrighted works for machine learning purposes in the context of such AI systems.

A right to fair remuneration granted by transparency obligations encourages human beings to produce new works (eventually with the expanded creative capacity that generative AI models can provide), while securing that the use of their work by AI systems generates a fair return. The human creator would thus remain at the centre of the copyright system.

All of this is simply the result of a race between technological development and its regulation, a race that technology tends to win over copyright or protected content holders, despite legislators’ clear efforts to set the pace.

In Spain, the use of IP-protected works by these technologies may involve acts of reproduction, distribution, communication to the public or transformation that require prior authorisation from the rights holder, unless an exception or limitation applies (text mining, educational use, criticism, parody, etc.). In the United States, the exception claimed by the defendant technology companies is fair use, a well-established legal institution in the US system that allows certain uses of protected works without the consent of the rights holder. But fair use does not grant a priori legal certainty, because it is applied on a case-by-case basis, albeit on the basis of fairly broad parameters.

In Spain, on 13 October 2023, the Draft Organic Law on the regulation of fake images and voices (deepfakes) of people generated using AI was published in the Spanish Parliament’s Official Gazette. In broad terms, the text covers deepfakes pursuant to the fundamental right to freedom of expression, while at the same time seeking to ensure the protection of other fundamental rights, especially the protection of the right to honour, privacy and one’s own image. With a view to preventing the serious damage that deepfakes can cause (defamation, intimidation, fraud, media and electoral manipulation, identity theft and moral and reputational damage), the dissemination of deepfakes without the prior authorisation or express consent of the target person is classified as a very serious offence, unless they include a warning that they are artificially generated images or audio. In the case of images or videos, this warning must be superimposed and clearly legible, and in the case of audio, it must be given immediately before and after having played the voice generated by these technologies.

But technology is advancing at a faster pace than the legislator is providing solutions. An awareness of sound principles is therefore crucial to protect individuals and their fundamental rights, as well as to maintain the integrity of the digital environment.

Conclusions

Disruptive technologies certainly generate benefits and progress in today’s society, but they need to be integrated without causing harm. The existing regulatory framework must be adapted to the new technological and social realities, and criteria need to be aligned between different countries and international organisations. The legislator’s objective must be to ensure a balance between the technology companies that stand to benefit from their developments and the interests of creators, users and society at large, so as to respect the principles and values that underpin human rights and intellectual property.