Top Legislative IP Developments of 2024 and Prospects for Future

The end of 2023 and the first half of 2024 were remarkably eventful in terms of AI-related initiatives addressing the impact of AI on intellectual property and publicity rights. The general legislative goal seems to be twofold: to afford rights holders and consumers more rights, such as new publicity rights regarding digital replicas for celebrities, and to provide transparency regarding AI training data and AI impact.

The other major area of development continues to tackle China-related risks. Starting with the signing of the Protecting American Intellectual Property Act of 2022 early last year and the “TikTok bill” this April, it is clear that legislative attempts to protect U.S. consumers and rights holders will remain high on the agenda this year.

Below are listed the most noteworthy developments to follow.

H.R.7913 – Generative AI Copyright Disclosure Act of 2024

On April 9, 2024, Representative Adam Schiff proposed a bill introducing new transparency requirements for AI developers. The bill aims to ensure that copyright owners can get information on whether their intellectual property was used to train generative AI models by requiring developers of generative AI technologies to identify the material they have used to train their systems.

Notice. All developers of generative AI technologies will have to give a notice to be submitted to the Copyright Office 30 days prior to the public release of such technology, along with a sufficiently detailed summary of all copyrighted works used in building or altering the training dataset for that system and also the URL of the dataset if publicly available.

These transparency obligations would apply retroactively to generative AI systems already available to consumers.

Database. The Copyright Office would create a publicly available online database that will contain all filed notices.

Regulations. The bill also provides that within 180 days of the effective date, the Copyright Office will issue regulations to implement these requirements.

These transparency requirements would likely benefit copyright owners by providing a tool to determine if their works are included in a dataset. The requirements might pose significant challenges for AI developers. Many AI training datasets are created through web crawling, allegedly making the identification and isolation of each copyrighted work difficult. Furthermore, there might also be technical difficulties in developing and maintaining a searchable database of notices.

Tennessee’s Ensuring Likeness Voice and Image Security Act (ELVIS Act)

In early 2024, Tennessee Gov. Bill Lee signed into law the Ensuring Likeness, Voice, and Image Security Act of 2024 (the “ELVIS Act”) supported by Broadcast Music, Inc. (BMI), the American Society of Composers, Authors, and Publishers (ASCAP), and the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA).

The law emerged against the backdrops of prominent uses of celebrity voices. One such AI-generated song using the AI-generated voices of Drake and the Weeknd became a viral sensation across various platforms.

The ELVIS Act is designed to protect musicians against unauthorized AI voice impersonations. The ELVIS Act amended the Personal Rights Protection Act of 1984 to add “voice” to the list of protected personality traits defining voice as “a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual.” HB 2091/SB 2096 § 3. The original scope covered “name, photograph, or likeness in any medium, in any matter directed to any person” on a perpetual basis, so long as the person’s heirs claim the right within ten years after the person’s death. Tenn. Code Ann. § 47-25-1105. The new law also imposes criminal and civil liability. Tenn. Code Ann. § 47-25-1104, which imposes misdemeanor criminal liability for the unauthorized use of a person’s publicity rights, now also applies to the unauthorized use of voice replicas as well.

The law will take effect on July 1, 2024, but it remains unclear how the “readily identifiable and attributable” test will apply in practice. For now, the ELVIS Act is the only legislative act addressing AI-generated impersonations, but other states (especially those with strong music industry presence) may pass similar legislation.

California Digital Replica Bill

In early 2024, California introduced a bill, AB 1836, to create a new digital replica right for deceased celebrities. The bill defines such AI uses as a “digital replica of a deceased personality” and prohibits unauthorized use of such “digital replicas” in an audiovisual work or sound recording, “in any manner related to the work performed by the deceased personality while living.” Cal. Civ. Code § 3344.1. The bill defines a digital replica as “a simulation of the voice or likeness of an individual that is readily identifiable as the individual and is created using digital technology.”  One of the key elements of this definition “readily identifiable” remains undefined, leaving unclear what might be deemed “readily identifiable.” The wording “in any manner related to the work performed by the deceased personality while living” also causes legitimate concerns as to its ambiguity.

The bill also expands liability to: “any person who produces, distributes, or makes available the digital replica” and permits recovery of either actual damages or $10,000 in statutory damages.

Notably, the bill also eliminates (concerning the digital replica right) the general exception available to the expressive works afforded by the original statute. That exception allowed the use of a person’s likeness in “play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value.” Many industries, including those involving film and interactive entertainment, often rely on this exception to use likenesses of deceased celebrities and thus find this elimination alarming.

NO FAKES Act 

On the federal level, Senators Chris Coons, Marsha Blackburn, Amy Klobuchar, and Thom Tillis proposed the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2023 that targets the unauthorized use of digital replicas (inter alia, those created by generative artificial intelligence) in audiovisual works or sound recordings.

The bill creates a federal so-called Digital Replication Right, which authorizes each individual, any executor, heir, assign, or devisee of the deceased individual to “authorize the use of the image, voice, or visual likeness of the individual in a digital replica.” As is clear from the definition of “digital replication right,” the bill would grant the right for seventy years following an individual’s death. Executors, heirs, transferees, or devisees would have the ability to exercise this right, irrespective of whether the individual died before the effective date of the bill or whether the right was commercially exploited during the individual’s lifetime.

This legislation gives both a private right of action to the rights holders and grants enforcement powers to the Department of Homeland Security and Customs and Border Protection.

Similar to California’s AB 1836, NO FAKES uses the vague “readily identifiable” standard and defines “digital replica” as a newly created, computer-generated, electronic representation of the image, voice, or visual likeness of an individual that “is [nearly indistinguishable] from the actual image, voice, or visual likeness of that individual;” and “is fixed in a sound recording or audiovisual work in which that individual did not actually perform or appear.”

The proposed legislation would impose liability both on individuals or entities creating unauthorized digital replicas; and on platforms hosting such infringing content if they are aware that the replicas are unauthorized. The bill thus implies that platforms may rely on Section 230’s safe harbor, which otherwise applies only to copyright-infringing content rather than publicity rights. However, the bill explicitly stipulates that it shall be considered “a law pertaining to intellectual property for the purposes of section 230(e)(2) of the Communications Act of 1934 3 (47 U.S.C. 230(e)(2)).”

To provide First Amendment protections, the bill also explicitly lists the following exclusions, which apply “regardless of the degree of dramatization”:

–           Digital replicas used in news, public affairs, or sports broadcasts or reports;

–           Digital replicas used in documentaries, docudramas, or works of historical or biographical nature are excluded,
provided they accurately represent the individual depicted;

–           The use of digital replicas for comment, criticism, scholarship, satire, or parody.

De minimis or incidental uses are also excluded.

H.R.576 – Copyright Clause Restoration Act of 2023

The Copyright Clause Restoration Act was introduced on January 1, 2023, and suggests shortening the initial copyright protection term from 70 years—currently applicable to works created after 1977—to 28 years with a potential renewal and extension of the copyright for a further term of 28 years. This would effectively limit copyright protection to 56 years.

The new copyright protection term would apply only prospectively to works “fixed on or after the date of enactment” of the bill. However, the bill will have a retroactive effect on copyrights owned by companies that (1) are involved in the motion picture or arts and entertainment industries, and (2) have a market capitalization of more than $150 billion.

This bill, which clearly targets major motion picture studios, was initially introduced in the 2021-2022 session of Congress by U.S. Senator Josh Hawley. H.R.576 is a reintroduction of H.R.8250 from the previous session of Congress, which made almost no progress in 2023 and is still in the early stages of the legislative process.

H.R.7608 – Combatting China’s Pilfering of Intellectual Property Act (CCP IP Act)

On March 11, U.S. Rep. John Curtis introduced a bill addressing IP theft by the Chinese government. The CCP IP Act would impose sanctions on individuals operating in sectors of China’s economy who engage in significant theft of U.S. intellectual property directly or receive such property through the actions of others. The bill also would prevent entry into the U.S. of Chinese Communist Party members, their family members, and military and government officials until the Chinese government “has ceased sponsoring, funding, facilitating, and actively working to support efforts to infringe on the intellectual property rights of citizens and companies of the United States.”

H.R.1016: Stop China’s IP Theft Act introduced on February 14, 2023, by Rep. Debbie Lesko, suggests similar travel restrictions for the senior members of the Chinese government.

While both bills have very low chances of being signed into law, they are nonetheless the continuation of the policy aimed at the protection of the trade secrets and intellectual property held by U.S. companies.

The legislation at the intersection of AI and intellectual property has just started to take shape, but even at this nascent stage, the probable direction is becoming clearer. Prioritizing transparency and addressing disruptive AI applications are expected to be key focuses this year. However, the exact trajectory of legislative developments in this area remains uncertain.

Image Source: Deposit Photos
Author: Konstantinp
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