Deepfakes: is seeing still believing?

The BBC thriller The Capture has captured the public’s imagination with its portrayal of the relationship between deepfakes and CCTV evidence, and the serious legal risks associated with this technology.

In a recent report published by non-profit research institute Data & Society, deepfakes were found to be “no new threat to democracy”, in that audiovisual media has always been manipulated, for a variety of purposes. What is new is the convincingness of deepfakes; the challenges associated with detecting them; and the risks associated with sharing deepfakes at speed and at scale on social media.

In this post we discuss the issues arising from such fakery and the possible legal counters.

What are deepfakes?

Put simply, deepfakes are fake videos created by artificially intelligent systems, predominantly trained using machine learning methods in order to generate or manipulate human bodies, faces and voices.

In the Data & Society report, deepfakes are distinguished from ‘cheap fakes’: fake videos made using package software or no software at all. Cheap fake techniques may include adjusting the timing of footage, deleting or cutting frames together, re-dubbing sound, or simply re-contextualising footage by changing narration, captions or video titles.

Once confined to academic research groups and Hollywood studios, deepfake technology is now accessible to anyone with enough computational resource to manipulate it. Consumer grade animation software can be used in conjunction with open source programs available on public repositories like GitHub to produce fakes of a similar quality to those created for legitimate purposes by computer scientists.

The first widely-known examples of amateur deepfakes appeared in November 2017, when a Reddit user called “deepfakes” uploaded a number of fake videos depicting celebrities’ faces grafted onto pornography.

Fake history

It is important to remember that audiovisual fakery is nothing new. Since the beginning of motion pictures, efforts have been made to create visual and audio effects using methods other than filming or recording them. Historically, these effects were achieved by manually altering existing footage in the cutting room, or later, in special effects departments. More recently, computer-generated imagery has advanced to a point where fakes in the film industry are now not only remarkably convincing, but commonplace – such as the recreated version of the late Carrie Fisher in recent Star Wars movies.

However, what is new is the potential for deepfake technology to help audiovisual fakery cross the line from expressive content to informative content.

Fake news

Fewer people now consume news via traditional methods such as reading newspapers, instead favouring audiovisual media such as 24/7 news channels or news apps on smartphones. In today’s digital age, news is no longer the exclusive remit of mainstream media coverage; many of us today also consume news via alternative resources, such as Twitter, reddit and other social media platforms.

This means that the phenomenon of fake news is not confined to text media alone, and whilst news articles written or published by unreliable sources are easily discredited, video content is much harder to argue with. Consequently, deepfake technology provides an opportunity for malicious actors to try to pass off fiction as fact. Technology now exists which makes it possible to synthesize entirely fake audiovisual performances by almost anyone, providing the “ability to put words and actions in the mouths and bodies of others”. For example, there have been several high-profile examples of deepfake videos featuring Barack Obama, such as the fake speech video created by researchers at Stanford University, and the “public service announcement” video warning against the dangers of deepfakes, created by BuzzFeed and American actor and comedian Jordan Peele.

However, it is not only public figures who are at risk of their images being faked. It only requires a few hundred images of training data to produce a reasonable quality deepfake, and in today’s digital age, there are plenty of images of most people publically available on their social media profiles. As such, it is relatively easy for any one of us to be “faked”.

It is important to note that fake news is a concern for cheap fakes and deepfakes alike – given the speed and scale at which information is transmitted via social media platforms, content can go viral before moderators, fact checkers, journalists and mainstream media are able to identify that content as being faked. The problem with deepfakes, though, is how much harder they are to detect, even with modern deepfake detection algorithms, which are not yet widely available.

This creates a risk that an unsuspecting journalist or unscrupulous mainstream media outlet may pick up a deepfake news story and perpetuate it via legitimate sources, thereby ‘validating’ the fake content as real news, with potentially harmful consequences.

Fake evidence

The possible implications of deepfakes on the reliability and admissibility of CCTV evidence in court were explored to devastating effect in The Capture: if seeing is no longer believing, do deepfakes change evidence as we know it?

Historically, courts have always struggled with new forms of evidence. For example, expert witnesses were required to justify the admissibility of photographic evidence to 19th century courts, despite its relative reliability as evidence compared with written witness statements and oral testimony.

That is not to say that audiovisual evidence is the same as ‘truth’ – such evidence can, and has, been manipulated in past trials, such as in the famous Rodney King case in the US, in which video evidence of a violent arrest was deliberately slowed in such a way as to undermine allegations of police brutality. The jury said that the slow video had “made all the difference”, and the police officers were acquitted. Consider the potential effects, then, of video ‘evidence’ which is not only manipulated, but which has been entirely fabricated by deepfake software, placing people at crime scenes or even depicting them committing crimes.

With not only CCTV, but photographs, dashcams, amateur footage, and the results of facial recognition software, all playing a potential role in court cases, there will be serious political, security and criminal implications if audiovisual evidence can no longer be trusted as proof.

Technical and legal counters

Whilst a limited amount of legislation dedicated to deepfakes exists in some jurisdictions (for example, Californian legislation which places restrictions on deepfakes depicting politicians within 60 days of an election), there is no UK legislation specifically designed to address deepfakes.

Existing causes of action which could be relevant include:

  • Copyright and social media takedown requests

Currently, social media platforms such as Facebook, Twitter and Youtube, and website hosting companies, benefit from the ‘safe harbour’ principle under US and EU law, meaning that the platforms themselves can’t be held responsible for user content which infringes copyright so long as they have a process for notification and takedown of such content (most providers’ processes are governed by the US Digital Millennium Copyright Act, even if they are not US-based). Content creators can submit evidence of copyright infringement to the platforms (usually via standard-web based forms available on the platforms), and the platforms are then responsible for removing the infringing content.

This mechanism was recently used to remove a Kim Kardashian deepfake from YouTube, and thus offers photographers and filmmakers a relatively straightforward method of removing deepfakes which use their copyrighted work. Additionally, blocking injunctions may be available against internet service providers (ISPs) to tackle repeated and concerted attempts to post infringing content on websites.

However, use of copyright material is permitted under the Copyright, Designs and Patents Act 1988 in a considerable number of circumstances, including for purposes of reporting current events, caricature, parody or pastiche, meaning satirical deepfakes may be exempt from copyright claims. In addition, if only a part of the copyrighted work is used, there could be claims that the deepfake would be exempt under the ‘quotation’/extract provisions.

  • Image rights

Whilst celebrities enjoy the benefit of ‘image rights’ in some jurisdictions, which protect them from misuse of their likeness, these rights do not exist in the UK, so individuals whose images are used in deepfakes must seek other means of redress (often using passing off via false endorsement, as in the Rihanna v Topshop case [2013]). Depending on the context of the deepfake (e.g. if the deepfake is used in a commercial context), options may include bringing a claim under passing off/false endorsement or perhaps trade mark infringement if appropriate images are registered as trade marks.

  • Data privacy

Individuals’ images constitute personal data under Art 4(1) of the General Data Protection Regulation (‘GDPR’). As such, victims of deepfakes may also be able to enforce their data protection rights against the data controller, including the right to rectification (Art 16) and the right to erasure (Art 17). However, identifying the ‘data controller’ (or controllers) in the context of a deepfake video shared online via multiple platforms is unlikely to be a straightforward process.

  • Defamation, harassment and misuse of private information

These offer alternative causes of action in circumstances where the deepfake: would harm an individual’s reputation, amounts to harassment, or is pornographic (which would amount to private information, even though the information is false (McKennit v Ash [2006]).

Proposed measures to counter the “fakes” problem:

The shortcomings associated with existing options set out above are compounded by the fact that, even if the victim is able to make out a case, under one or more of these grounds, they may face difficulty in actually bringing their claim if, for example, the creator of the deepfake cannot be identified, or if there are jurisdictional obstacles.

Consequently, there are widespread calls for further legal and te counters to deepfakes. Potential counters being considered include:

  • Legislation requiring the identification or registration of content creators
  • Legislation forcing individuals to label manipulated content and fine those whose manipulative content is deemed harmful.
  • An improved regulatory and legislative framework around potential rights of action for victims, such as establishing image rights in the UK.
  • Adding invisible ‘noise’ to digital images which deepfake algorithms struggle to process, impacting the quality of the resulting deepfake content.
  • Tracking the provenance of content through use of distributed verification technology (such as Truepic, which uses blockchain technology to verify the authenticity of content).
  • Removing net neutrality for all packets carrying video data, in order to trace them to their real-life creators.
  • Embedding automated fake detection software on social media platforms, search engines and internet browsers.
  • Employing more content moderators and reconsidering platforms’ liability for their role in spreading fake content.
  • Raising awareness of fake audiovisual content and encouraging the public to interrogate their sources.

Summary

Whilst audiovisual manipulation is nothing new, whether in the context of news media or evidence in court, the advent of deepfake technology makes fake content much harder to identify. In a world where seeing is not necessarily believing, and where audiovisual footage is shared at speed and at scale on social media and other platforms, the risks associated with deepfakes and cheap fakes alike are becoming increasingly important to address.

Joel Smith
Joel Smith
Partner, Head of Intellectual Property UK, London
+44 20 7466 2331
Laura Adde
Laura Adde
Associate, London
+44 20 7466 7491
Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, London
+44 20 7466 2217

 

AG’s Opinion in SkyKick maintains the case’s chilling effect on enforcement of trade mark rights, pending clarity from the CJEU

The CJEU’s Advocate-General (‘AG’) has delivered his Opinion that a registered trade mark cannot be declared invalid solely due to the terms used in the mark’s specification lacking ‘sufficient’ clarity and precision. However, this statement came with the substantial caveat that a lack of clarity and precision in the specification could cause the application/registration to fall within the ‘contrary to public policy’ provision, which is a ground for refusal or invalidity of EU and national trade marks. The Opinion also considered ‘intention to use’ and concluded that applying for registration of a trade mark with no intention to use it in connection with specified goods or services, could constitute an element of bad faith (bad faith itself a ground for refusal of registration & invalidity).  The AG’s Opinion follows a reference to the CJEU in the case Sky v SkyKick from the High Court of Justice (England and Wales) (‘the Court’).

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Challenges for the Consumer sector – Transformative Technology

HSF’s Consumer sector team (including Joel Smith, Victoria Horsey, Sarah Burke and Rachel Montagnon, from our IP group) have just a feature article published in June’s PLC Magazine on Challenges in the Consumer Sector *. This is the first in a series of three articles examining the current issues facing the sector.

The article examines the impact of transformative technology and looks in particular at AI, AR & VR (including IP aspects), data commercialisation, Internet of Things, contextual commerce, data privacy, cyber security, targeted advertising, and on-line infringement of IP rights.

For more on these and other issues affecting the Consumer sector see our Future of Consumer hub.

*http://uk.practicallaw.com/resources/uk-publications/plc-magazine

Authors from HSF the IP group

Joel Smith
Joel Smith
Partner, Head of Intellectual Property, London
+44 20 7466 2331
Victoria Horsey
Victoria Horsey
Senior associate, Intellectual Property, London
+44 20 7466 2701
Sarah Burke
Sarah Burke
Senior associate, Intellectual Property, London
+44 20 7466 2476
Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, Intellectual Property & Consumer Sector, London
+44 20 7466 2217

Data Assets – Protecting and Driving Value in a Digital Age

Faced with the exponential rise of data as an asset class in its own right, organisations are now taking a fresh look at the data that are available or accessible to them and the ways in which the value of those data can be safeguarded, unlocked and maximised. Data have become a strategic and valuable asset for many organisations but protecting and exploiting that asset is not always simple.

Our feature article, published in May’s edition of PLC Magazine and linked in this post, considers data as an asset, how intellectual property rights can be employed to protect data, how data can be used effectively and how to minimise associated legal risks.

The article explores key legal considerations for organisations looking to develop or refine a data commercialisation strategy, including in respect of:

  • the concept of so-called data “ownership”;
  • intellectual property rights;
  • contractual rights;
  • information governance;
  • competition law; and
  • corporate transactions.

For the full article please click below:

 

This article was first published in PLC Magazine, May 2019

Edward Du Boulay
Edward Du Boulay
Senior Associate, Digital TMT & Data, London
+44 20 7466 2384
Miriam Everett
Miriam Everett
Partner, Head of Data Protection & Privacy, London
+44 20 7466 2378
Kyriakos Fountoukakos
Kyriakos Fountoukakos
Partner, Competition and Trade, Brussels
+32 2 518 1840
Andrew Moir
Andrew Moir
Partner, Head of Cybersecurity, London
+44 20 7466 2773
Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, Intellectual Property, London
+44 20 7466 2217
Joel Smith
Joel Smith
Partner, Head of Intellectual Property, London
+44 20 7466 2331
Manish Soni
Manish Soni
Senior Associate, London
+44 20 7466 2016

Misleading brand name ‘Glen Buchenbach’ infringes the registered geographical indication ‘Scotch Whisky’

In a decision that extends the law of geographical indications into the territory of the UK tort of passing off, the District Court of Hamburg (the ‘Court’) has prohibited the use of ‘Glen’ in the name of a whisky that did not originate from Scotland on the basis of the geographical indication protection associated with ‘Scotch Whisky’ . Continue reading

Herbert Smith Freehills’ global Trade Marks Practice lauded a ‘formidable force’ in WTR 1000 rankings

Herbert Smith Freehills has been lauded a ‘class act’, after it was ranked highly in the 2019 edition of World Trademark Review (WTR) 1000.

Now in its ninth year, the WTR 1000 highlights firms and individuals that are deemed outstanding in this area of practice.

Herbert Smith Freehills has been showcased in the research directory as being ‘a formidable force within the trademark sphere’ and a ‘prestigious commercial outfit’, after it was highlighted for having particularly strong trademark experience globally in WTR 1000. The firm’s practices in the UK, Australia, France and Italy were all highly ranked in the directory.

The publication singles out the firm for being “packed to the rafters with world-class talent that consistently exceeds the expectations of clients”.

WTR cites the “hands-on leadership”  of Joel Smith, UK Head of IP as crucial to the side’s recent growth and success and goes on to highlight Joel as “a brilliant strategic thinker” flagging his work for major brands alongside much-praised Paris Partner Alexandra Neri on cross-border trade mark disputes.

Global Head of IP Mark Shillito is lauded as an “exquisite complex problem solver and litigator” and Laura Orlando has also been showcased, after she helped set up our growing Milan office in late 2017. She is flagged for her, “super pragmatic and business oriented” approach, which makes her one of the “best IP lawyers in Italy”.

Celia Davies, who heads Herbert Smith Freehills’ Trademarks prosecution group in Australia, is “a true leader in the trademark market”. Melbourne Partner Shaun McVicar has also been held up as possessing a “commercial and strategic outlook on litigation” which means that brands are in “good hands when he is on a case.” Partner Sue Gilchrist is also singled out as being a “top-flight litigator” and Kristin Stammer as an “eminent adviser with terrific technical trademark knowledge”.

In its write-up of the firm’s trade mark practice, WTR comments, “Herbert Smith Freehills isn’t about being the biggest in trademarks; it focuses, instead, on quality and adding strategic value for blue-chip international rights holders – and routinely surpasses expectations in both regards.”

As with previous editions, to arrive at the 2019 rankings, WTR undertook an exhaustive qualitative research project to identify the firms and individuals that are deemed outstanding in this critical area of practice. The publication says that when identifying the leading firms, factors such as depth of expertise, market presence and the level of work on which they are typically instructed were all taken into account, alongside positive peer and client feedback.

To view the full write-up, please visit: https://www.worldtrademarkreview.com/directories/wtr1000

Cadbury’s colour purple trade mark can’t be split

Clarity and precision in a trade mark description are the winners in the Court of Appeal

Cadbury’s attempt to argue its trade mark registration for the colour purple was actually a series mark which could be split and partially maintained was rejected yesterday by the Court of Appeal. Although another blow in Cadbury’s multi-decade, hard-fought attempt to trade mark the colour purple for chocolate bars in the UK, the decision helps to maintain clarity and certainty on the trade marks register.

Key take away: If you are applying for a trade mark, then it is important that the monopoly you are claiming is clear and precise – especially if your mark is ‘unusual’, such as a colour or shape mark. To be successful, the trade mark application should not be able to be interpreted in multiple different ways.

Cadbury v Comptroller of Patents [2018] EWCA Civ 2715 (5 December 2018)

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Draft Withdrawal Agreement Approved by UK Cabinet – IP and Marketing Authorisation Provisions Summarised

As was widely reported yesterday evening, the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the Draft Withdrawal Agreement (14 November 2018)), detailing the arrangements for the UK to leave the EU has now been agreed by the UK Cabinet. The draft is as agreed between the UK and the EU’s negotiators. As stated in HSF’s Brexit Withdrawal Agreement webinar invitation here, a special European Council, anticipated to be held on 25 November 2018, will be asked to approve the Draft Withdrawal Agreement and the full text of the political declaration. The deal will also have to pass through the European Parliament. However, the main challenge to a deal being ratified is the requirement for approval by the UK Parliament. The first vote by the UK Parliament is expected within two weeks of the European Council.

We set out below a summary of the Draft Withdrawal Agreement’s provisions on intellectual property. The situation is not much changed from the previous draft issued in March 2018 although the provision for geographical indications has now been agreed: EU-wide rights will be replaced or recognised in the UK and provision has been made for pending applications, including for supplementary protection certificates (SPCs). The sharing of information for assessment of marketing authorisations between the MHRA and the EMA and vice versa is also provided for.

The Draft Withdrawal Agreement provides for an implementation/transition period from the date the UK leaves the EU (29 March 2019) to end of 31 December 2020. If the Draft Withdrawal Agreement is agreed, this transition period will mean that effectively the UK will continue to be treated as part of the EU from a legislative point of view. As the Commission’s press release puts it,”During this period, the entire Union acquis will continue to apply to and in the UK as if it were a Member State”. IP registrations and enforcement will carry on as normal during this period. Until the end of the transition period you will still be able to acquire/register and maintain EU-wide IP rights that will have effect in the UK. See the detail in our summary section below.  However, “as of the withdrawal date (i.e. including during the transition period), the UK, having left the EU, will no longer be part of EU decision-making. It will no longer be represented in the EU institutions, agencies and bodies, and persons appointed, nominated, or representing the UK, and persons elected in the UK, will no longer take part in the EU institutions, agencies, and bodies“.

The accompanying political agreement document “Outline of the political declaration setting out the framework for the future relationship between the European Union and the United Kingdom” (currently a summary version, with a fuller version to follow) looks to the future relationship between the UK and the EU post-transition. There is mention of IP in the section on Economic Partnership, but all that is said is: “Protection and enforcement of intellectual property rights beyond multilateral treaties to stimulate innovation, creativity and economic activity”.  Under ‘Basis for cooperation’, the political agreement states that “Terms for the United Kingdom’s participation in Union programmes, subject to the conditions set out in the corresponding Union instruments, such as in science and innovation, culture and education, development, defence capabilities, civil protection and space”. There is also mention of “Cooperation in matters of health security”.  For more on the impact of no deal on the pharma industry see our post on the UK Government’s “no deal technical notices” published on 23 August 2018.

Summary of the Draft Withdrawal Agreement’s provision for IP and marketing authorisations:

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Brexit “no deal” technical notices published on Patents, Trade marks, Designs, Copyright, GIs, and Exhaustion of rights

The latest tranche of “no deal” technical notices was released yesterday afternoon by the UK Government. Amongst them are several notices that highlight the Brexit issues faced by intellectual property right owners and, in some cases, confirm the Government’s approach to resolving them. The Government also released this news story today which comments on the guidance given in the technical notices and comments on the Government’s longer term aims for IP protection.

Key announcements, in the context of no deal, are:

  • Provision of a new right to replace unregistered Community design rights, to be known as “the supplementary unregistered design right“.
  • Existing EUTMs and Community registered designs will be replaced with new, equivalent rights in the UK at the end of the implementation/transition period, “with minimal administrative burden“.
  • The SPC, compulsory licensing, pharmaceutical product testing exception and patenting of biotechnological inventions regimes will remain unchanged at least initially.
  • If the UPC comes into force the UK will replace unitary patent rights with equivalent rights if the UK needs to withdraw from the new system, although the UK “will explore whether it is possible to remain within it“. The Government’s news story states that “The UK intends to stay in the Unified Patent Court and unitary patent system after we leave the EU.”
  • UK originating sui generis database rights will no longer be enforceable in the EEA; “UK owners may want to consider relying on other forms of protection (e.g. restrictive licensing agreements or copyright where applicable) for their databases
  • The UK will set up its own GI schemewhich will be WTO TRIPS compliant“. The new rights “will broadly mirror the EU regime and be no more burdensome to producers“.  Since the UK would no longer be required to recognise EU GI status, EU producers would be able to apply for UK GI status. Those wishing to protect UK GIs in the EU will need to submit applications on a third country basis.
  • The UK will continue to accept the exhaustion of IP rights in products put on the market in the EEA by, or with the consent of, the rights holder. However, the EU will likely not consider that goods placed on the UK market are exhausted in the EEA, and thus permission may need to be sought from the rights holder to transfer goods to the EEA that have legitimately been put on the market in the UK. The Government news story says that “The UK looks forward to exploring arrangements on IP cooperation that will provide mutual benefits to UK and EU rights holders and we are ready to discuss issues the EU wishes to raise in the negotiations on our future relationship, including exhaustion of IP rights”.

Links to the notices:

  1. Patents
  2. Trade marks and designs
  3. Copyright
  4. Geographical Indications
  5. Exhaustion of IP rights

More detail on each of these is provided below. For those with an interest in Life Sciences please also see our blog post on the notices related to that sector that were released last month.

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THE TASTE OF FOODS CANNOT BE PROTECTED BY COPYRIGHT, SAYS THE AG

On 25 July 2018, Advocate General Wathelet issued his opinion in an interesting case pending before the Court of Justice of the EU (CJEU) (C-310/17) concerning copyright over the taste of a food product.

The AG took the view that EU law precludes the taste of food from being protected by copyright, essentially because:

  • the notion of “literary and artistic works” in the Berne Convention includes only subject-matter that can be perceived through sight or hearing, therefore implicitly excluding those perceivable through other senses like taste, smell or touch; and
  • artistic works should be identified in a precise and objective manner in order to allow third parties to understand their scope of protection. This is not the case for the taste of food products.

Business impact

This case is particularly interesting as it is the first time that the CJEU will rule on the copyright of the taste of a food product and, more generally, on the notion of copyright work which is not defined under Directive 2001/29/EC (“InfoSoc Directive”).

Food scientists in major food businesses may be disappointed not to obtain a new layer of protection for creating new tastes.

The opinion of the AG confirms the difficulty of ensuring copyright protection for the taste of a food product, as well as for perfumes, as observed in the field of trade marks.  Even though the new EU Trade Mark Regulation does not require a sign (any longer) to be capable of being graphically represented in order to be registered as a trade mark, in practice it is not yet possible to register a taste or a smell as a trade mark as the subject-matter of protection cannot be determined with clarity and precision with generally available technology.

If the CJEU were to follow the opinion of the AG in its Judgment, many producers of food products and perfumes will remain disappointed that their creative efforts are not recognised by legal protection through copyright. Continue reading