We previously wrote about Denmark’s ambitious proposal to grant individuals a neighbouring right (a right akin to copyright) over their own voice and likeness to combat deepfakes. Deepfakes are images or audio fragments manipulated by algorithms to make it appear as though someone has said or done something that never actually happened. The European Commission has now raised substantial concerns about the Danish draft legislation. This blog outlines the Commission’s main points of criticism.
The Danish Proposal
The rationale behind the Danish proposal is clear. With the rise of generative AI, individuals are increasingly exposed to harmful practices such as (sexual) extortion, harassment, and fraud. Denmark therefore seeks to amend its Copyright Act to allow natural persons to exercise a right to prohibit the online dissemination of realistic digital imitations of their personal characteristics and performances, such as voice, appearance, or movements. Individuals whose likeness is used would be able to object to the online availability of such realistic digital imitations. Explicit consent would be required, and the protection would continue for 50 years after the person’s death. In the absence of consent, use would constitute an infringement, comparable to the unlawful copying of a film or song.
Criticism from the European Commission
The European Commission has criticised the approach taken in the Danish proposal. It begins by noting that several Member States consider the challenges posed by deepfakes to extend beyond the scope of copyright law. The rules Denmark proposes do not, in fact, constitute copyright in the strict sense. Denmark seeks to frame them as such, but they do not fit within the intellectual property framework. Copyright protects artistic works that are original and reflect the author’s own intellectual creation. Voice, appearance, and likeness do not naturally fall within this category. The WIPO Copyright Treaty, the WTO TRIPS Agreement, and European case law confirm that copyright protection does not extend to ‘ideas’, nor does it apply where the expression of elements is solely dictated by their technical function, leaving no room for creative freedom. Moreover, copyright typically vests in the creator, not in the person depicted. The Danish proposal seeks to reverse this logic, but this is not a natural fit. Just as the rights in a photograph usually belong to the photographer rather than the subject, victims of deepfakes are generally not the copyright holders of the underlying material.
New Rules on Top of Existing rules
To promote the European internal market, national laws are aligned through binding EU rules. This is the principle of harmonisation. The Commission warns that Denmark’s proposal stretches these EU rules. Concepts such as ‘making available to the public’ and ‘communication’ have a uniform meaning across the European Union. A single Member State cannot unilaterally decide that a digital imitation of a voice falls within the scope of copyright. Doing so would risk undermining the unity of the internal market. In addition, some experts argue that the existing legal framework (including the fundamental right to respect for private life, the Danish Criminal Code, and the General Data Protection Regulation) already offers sufficient tools to protect personal characteristics. New rights may therefore add limited value. The focus may be better placed on enforcing existing laws.
Overly Strict Filters?
Another point of concern is the proposed link with the controversial ‘upload filters’ under Article 17 of the DSM Directive. Denmark envisaged requiring online platforms, such as TikTok and YouTube, to proactively filter for these ‘identity infringements’. The European Commission warns that linking the proposal to Article 17 could impose additional obligations on platforms that fall outside the harmonised framework. These filters are designed for copyright-protected content, not for monitoring a person’s appearance or voice. Such an approach would effectively require platforms to take on a monitoring role that goes beyond what EU law permits.
What’s next?
The European Commission acknowledges that the Danish initiative has drawn attention to the growing risks associated with deepfakes. It may signal the need to consider a new, EU-wide category of illegal content. The Commission’s reservations are also relevant for similar proposals in the Netherlands. For now, however, the seemingly straightforward solution of granting copyright in one’s own face appears to be off the table.
Interested in other blogs about intellectual property? Check them here.
