Artificial Intelligence (AI) and Sui Generis protection for image rights

The future is now

In an era echoing sci-fi narratives, our real world increasingly intertwines with the realm of fiction. Netflix's "Black Mirror" brought this to life, in Season 6 of the acclaimed series, with an episode titled ‘Joan is Awful’ that introduced AI-generated characters who are, in essence, digitized humans. These AI-generated characters are oblivious to their true nature as AI models crafted from real humans who granted a fictional streaming platform, Streamberry, the rights to use their likeness for TV content. This storyline may be a fabrication, but the existence and influence of AI in areas such as music, television, and intellectual property are very real.

Historically, technology's tryst with the entertainment industry has been captivating. In 2012, hip-hop icon, Tupac, was resurrected at the Coachella music festival in the form of a hologram. This virtual Tupac, despite passing away in 2006, performed alongside Snoop Dogg, leaving many fans in disbelief.

Fast forward to 2021, the legendary Swedish pop group ABBA initiated their "ABBA Voyage" virtual reunion tour, introducing their holographic doppelgangers as “ABBAtars”. By April 2023, ‘Heart on My Sleeve’ had been released as an AI track, featuring the AI-simulated voices of Drake and The Weeknd. Interestingly, neither artist was involved in its creation. The entirely AI-conceived lyrics and vocals posed questions regarding intellectual property and the idea of authorship.

Section 4 of Uganda’s Copyright and Neighbouring Rights Act, 2006 (CNRA) provides that an author of any work entitled to copyright protection shall have a right of protection of the work, where work is original and is reduced to material form in whatever method irrespective of quality of the work or the purpose for which it is created. This protection accorded to the author’s work is inherent and shall not be subject to any formality so long as it is reduced into material form. The song, ‘Heart on My Sleeve ‘is clearly an original composition that has been reduced into material form.

In congruence with the law, a work is original if it is the product of the independent efforts of the author. Such effort requires a minimum amount of skill, labor and judgment. Crafting holograms, such as ABBA's, demands immense skill. This process leverages AI for voice replication and the generation of intricate 3D digital models. AI is also used to analyse vast recording archives to mimic the artist’s voice. Jurisprudence from cases within the commonwealth surmises that new work can be created from already existing work; in the AI generated track, recreation of voices and the original composition of lyrics, accompanying arrangement of the beats and rhythm in the song, ‘Heart on my Sleeve’ would subject it to copyright.

Who holds the copyright for a song birthed by AI?

AI as machine learning performs functions without human intervention but cannot own what it has created. AI applications in Uganda are protected as computer programs (software) under Section 5 (e) of the CNRA. Inversely, the Act does not accord AI the right to create or own intellectual property. Under Section 2, only physical persons, human beings, are recognized as authors. Copyright law does not accord AI the right to create or own intellectual property. AI are classified as machines, non- humans, and in the United States for example, In Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991), court held that US copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’ Similarly, in the Australian case, Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCA FC 16; 201 FCR 173; 287 ALR 403; 95 IPR 117, court declared that a work generated with the intervention of a computer could not be protected by copyright because it was not produced by a human.

The Court of Justice of the European Union (CJEU) has previously held in C-5/08 Infopaq International A/S v Danske Dagbaldes Forening, that copyright only applies to original works, and that originality must reflect the ‘author’s own intellectual creation.’ Consequently, an original work can only be attributable to a human author even if the heavy lifting is undertaken by the machine.

What about the proprietary rights over an individual's likeness?

The subject matter of copyrighted work, is in the expression of that work as the sum of its parts. Each constituent of a copyrighted work can potentially hold its own copyright, as observed in musical compositions. Elements such as melody, harmony, rhythm, and lyrics can each possess distinct copyrights. The authors of the composition are usually the composer, who writes the music and the lyricist, who writes the lyrics. The composition can be separated from the sound Recording, which is the actual audio recording of a performance of the musical composition. The recording captures the specific performance of the composition, including the choices made by performers, producers, sound engineers, and others involved in the recording process. In addition to these, there can be additional rights related to the use and distribution of the musical work, collectively termed as neighboring rights, such as synchronization rights for using the music in films, TV, or commercials, broadcasting rights for playing the music in public venues and performance rights for preforming the music at concerts. Neighboring rights are usually managed on behalf of the authors by collection management organizations (CMOs) such as Uganda Performing Rights Society (UPRS).

To clarify further, in the AI generated song ‘Heart on My Sleeve’, the musical composition copyright would cover the actual written music and lyrics, held by the songwriters, in this case the author of the AI. The sound recording copyright would cover the specific recorded version of the song as can be heard on the platforms where the song is accessed. However, no copyright would subsist in the voices in the song. Ordinarily, the voices should belong to a human who would have control over how to commercialize their likeness. The right to control the commercialization of one’s likeness or image is known as an image or personality right. Under common law jurisprudence an image or personality right is the right of an individual to control the commercial use of his or her name, image, voice, likeness, or other unequivocal aspects of one's identity. The Ugandan case of Winnie Asege v Opportunity Bank & Another HCCS 756 of 2013 introduced personality rights to Uganda’s jurisprudence classifying them into two categories;

a. The right of publicity or to keep one's image and likeness from being commercially exploited without permission or contractual compensation and;
b. The right to privacy. The right to be left alone and not have one's personality represented publicly without permission.

Subsequently, Artists like Drake and The Weeknd have the right to control how, if at all, their persona is commercialised or represented by third parties. Unauthorized use can lead to liability under Image rights. In instances where such likeness is used for parody or private use, this may fall under copyright fair use exemptions. Fair use is a common law doctrine under copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. Outside of the parameters defining fair use under country specific copyright law such as Uganda’s Section 15 of the CNRA, it would be difficult for a court to find that the recreation of artists voices as used in an entire song amounts to fair use. In any case, although the fair use doctrine under copyright can be extended to image rights, rights in personality should be recognized as specific intellectual property rights. Image rights are treated as extensions of copyright law but with the advent of AI and similar technologies that can recreate images, voices and likeness, they should be recognized as sui generis rights.

Sui generis is a Latin term that means "of its own kind" or "in a class by itself." In the context of intellectual property (IP) law, sui generis rights refer to unique rights that are specifically designed for a peculiar type of subject matter, such as image rights that may not, as a square peg in a round hole, fit within traditional categories like copyright. In recent times, other rights that have been granted sui generis protection in Uganda include Plant Breeders' Rights (PBR) which protect new varieties of plants and give breeders exclusive control over propagating material under the Plant Variety Protection Act, 2014. Geographical Indications that protect products that have a specific geographic origin and possess qualities or reputation attributable to that origin are recognized and protected under the Geographical Indications Act, 2014. Examples of GI’s are ‘Champagne’ for sparkling wine from the Champagne region of France and ‘Rwenzori Coffee’ from Rwenzori region in Uganda.

In conclusion, conventional copyright frameworks might grapple with challenges introduced by contemporary technology. By sculpting a unique set of rights tailored for evolving subjects, countries like Uganda can effectively balance between promoting innovation and safeguarding emergent rights, especially image rights, in our progressively AI-dominated landscape.

Kenneth Muhangi is a Lecturer in Intellectual Property at Uganda Christian University and Partner and Head of Technology, Media, Telecommunications & Intellectual Property at KTA Advocates, Uganda’s Representative on Drones at the 4IR Portfolio Communities of the Centre for Fourth Industrial Revolution of the World Economic Forum and is the Chair of the Technology, Media & Telecoms Committee of East Africa Law Society and ICT Cluster of Uganda Law Society.

Further reading:

Opening up our (A) eyes

About KTA Advocates:

KTA Advocates (“KTA”) is AGA’s legal representative in Uganda. An award-winning IFLR recommended and a WTR1000 top-tier law firm, KTA’s team provides corporate governance, project finance, international trade, dispute resolution & arbitration, tax finance, civil & commercial litigation, employment, and real estate & property services.

The firm's clients range from leading public and private businesses in banking, e-commerce, sports, entertainment, technology, beverage & hospitality, telecommunications, broadcast entertainment, music and publishing and early-stage entrepreneurs. KTA has a team of 25 highly specialized advocates who render a range of legal services to clients globally.