The music industry has welcomed the news that the NO FAKES Act in the US - which will introduce a new digital replica right - has been unanimously advanced by the Judiciary Committee in the Senate, allowing it to proceed to a full vote in the upper chamber of Congress.
If passed, the act will provide new rights to allow performers, and people more generally, to control use of their voice and likeness in the context of AI deepfakes and voice clones.
Moiya McTier from the Human Artistry Campaign was among those to welcome the latest developments, saying in a statement, “creativity is rooted in human experience - perspectives, faces and stories that connect us and move culture forward - as AI evolves, everyone deserves the right to control how their voice, likeness and identity are used”.
The NO FAKES Act, she adds, “provides those protections without inhibiting innovation and Congress must act now for the benefit of each American”.
Mitch Glazier, CEO of the Recording Industry Association Of America, also issued a statement “applauding” the senators leading on these proposals, including Republican Marsha Blackburn and Democrat Chris Coons, adding “we look forward to the bill’s passage into law later this year”.
Glazier was also keen to stress that, as well having bipartisan support in Congress itself, the NO FAKES Act is also backed by “an extraordinary cross-sector coalition” which includes “the creative community, child safety groups, free market groups, labour unions, free speech advocates and AI developers”.
It is true that the NO FAKES Act is widely supported in the music and wider entertainment industry, with some initial concerns from the movie studios addressed as the proposals have evolved.
And many digital platforms and tech companies back the proposals too, albeit some of them more cautiously. When a revised version of the act was unveiled last month, Spotify welcomed the changes Blackburn and Coons had made, but said “there is still work to do”.
And there remain some very vocal critics of the act, mainly on free speech grounds. Earlier this week the Electronic Frontier Foundation urged the Senate Judiciary Committee to not advance the proposals, stating that “the NO FAKES Act is supposed to target harmful AI-generated impersonations, but in reality it will make it easier to suppress commentary, satire and other lawful speech”.
There are provisions in the act that seek to overcome free speech concerns, though some critics argue they don’t go far enough. And three Republicans on the committee did raise free speech concerns during yesterday’s committee hearing, with Ted Cruz in particular questioning if using AI for the purposes of parody is sufficiently protected in the act as it is currently written.
Interestingly, EFF’s latest statement criticising the act also raises concerns on behalf of performers, even though many organisations representing creators and performers back the act.
That criticism relates to the fact that - under the act - a performer can license their voice or likeness to a business partner, like a film studio or record label. There are restrictions in the act that aim to protect performers who enter into deals of that kind, though the EFF reckons they are not sufficient.
“NO FAKES could also undermine the rights of the people it is supposed to protect”, it says. Because a performer’s likeness could be licensed to a business partner under the act, “individuals will lose control over the use of their own face and voice”. And “that’s not theoretical - workers in the entertainment industry are routinely asked to sign broad contracts about the future use of their likenesses”.
The EFF’s concerns are based on the assumption that some performers may be pressured into unfair deals or unknowingly grant rights to a studio - or that creators or people more generally uploading content to a digital platform could unknowingly grant rights in terms of service they don’t read.
It then theorises that “a background actor who signs a release on set or an ordinary person who clicks through a platform’s terms of service could end up with the right to their own face and voice in someone else’s hands, for years, with federal enforcement behind it”.
Supporters of the NO FAKES Act remain confident their proposals address concerns around free speech and in relation to performers losing control of their likeness rights, though additional amendments could as yet be made in both those domains as the act continues to progress through Congress.