Text: "Legal Person" magazine, full ** reporter Hui Ningning.
Virtual anchors, AI tour guides, intelligent customer service, financial digital human ......At present, this kind of digital avatar that is close to the human image created by using a number of artificial intelligence technologies has been widely used in audio-visual entertainment, e-commerce sales, virtual social networking and other fields.
On August 20, 2023, exhibitors introduced the Digital Human Intelligent Customer Service CFP at the Nanjing International Expo Center
Recently, China's first infringement case involving a virtual digital person was selected as one of the top ten cases of the people's court in 2023. With the popularization of virtual digital humans and the rapid development of the industry, the legal relationship and legal guarantee between relevant entities in the virtual digital human industry, as well as the development of industry compliance, have attracted more and more attention.
Virtual digital humans are gradually being commercialized
In recent years, a large number of "digital human" anchors have appeared in the live broadcast rooms of major e-commerce platforms. According to relevant statistics, at present, there are more than 50 million virtual digital human anchor accounts on major online platforms in China. These "digital people" can live broadcast 24 hours a day, answer customer questions, etc. Liu Yexi, a virtual human beauty blogger who debuted in October 2021, attracted more than 1482 people with a rat makeup imitation makeup challenge30,000 people**, known as the "phenomenal" virtual people of the year. Recently, a reporter from "Legal Person" searched and found that Liu Yexi currently has more than 8 million fans.
According to the "2023 China Virtual Anchor Industry Research Report" released by iiMedia Consulting, in 2022, the market size and core market size of China's virtual human-driven industry will be 1866100 million and 120800 million yuan, which is expected to reach 6402 in 2025700 million yuan and 480600 million yuan, showing a strong growth trend. There is a large commercial space in the virtual anchor industry, including the sale of derivatives peripherals, brand endorsements, work rewards, live broadcasts, etc., there are 367% of respondents will increase their willingness to spend on virtual anchors.
Pan Helin, co-director and researcher of the Digital Economy and Financial Innovation Research Center of Zhejiang University International Business School, pointed out in an interview that the rapid commercial application of virtual digital humans is due to the maturity of the industry, especially the sound library technology, motion capture technology and 3D modeling technology of "digital humans". On the other hand, because of demand, from Hatsune Miku abroad to Luo Tianyi in China, many "digital people" have been successful.
Recently, a person in charge of a live broadcast base in Guizhou told reporters that live broadcast e-commerce is the current trend, and everyone is doing it, but the cost of employment is high. The introduction of digital humans as anchors is to save some costs and improve efficiency, and at the same time, they also hope to rely on freshness to attract fans and monetize. But when it is actually used, it feels like the digital person is a bit "unattractive and useless". "At present, digital humans are modeled, and they can be used by purchasing the system and applying the template, and there is little room for choice. It is very convenient to let the digital human do oral broadcasting, and you can enter the text and select the voice. But compared to the real person, the whole is very stiff. ”
Some analysts pointed out that at present, the research and development cost of virtual digital humans is high, the technology is not comparable to the state of real people, and the application at the market level is insufficient, focusing more on concept and content marketing. In order to promote the speech and large-scale application of virtual digital humans, it is also necessary to effectively combine them with business and promote the construction of the entire ecosystem in the application.
The virtual digital person won the lawsuit
With its intelligent, interactive and personalized characteristics, virtual digital humans provide people with a variety of convenience and fun in life. But with that comes a series of legal risks.
How to determine the copyright of a virtual digital human created through artificial intelligence technology? Should the intellectual property rights it generates be protected? In April 2023, the Hangzhou Internet Court in Zhejiang Province concluded the first case involving the infringement of virtual digital humans in China, which attracted great attention in the industry.
In October 2019, Shanghai Mofa Company released the digital human "ADA" through a public event, and in October and November of the same year, it released two ** through an online platform, one is used to introduce the scene application of ADA, and the other is used to record the motion capture screen of real actors and ADA. In July 2022, a network company in Hangzhou released two ** images containing ADA without authorization.
Shanghai Mofa Company believes that the unauthorized dissemination and use of the virtual digital person by a network company in Hangzhou infringes the right of information network transmission of its art works and audio-visual works, and infringes the information network communication rights of video producers and performers in video products. At the same time, it also constitutes an act of unfair competition by false publicity. Therefore, a network company in Hangzhou sued the Hangzhou Internet Court, demanding that the other party eliminate the impact and compensate for economic losses of 500,000 yuan.
In the court debate, Shanghai Mofa Company argued that the production of ADA required the application of artificial intelligence performance animation technology, hyper-realistic character intelligent modeling and binding technology, etc., which was a work produced by it with a lot of time and energy, and should be protected by law. A network company in Hangzhou believes that the virtual digital human image does not belong to art works, the plaintiff does not enjoy the copyright of the relevant work, and the real actor is not a performer, does not constitute a job performance, and the plaintiff does not enjoy the performer's rights, and the defendant's behavior does not constitute infringement, nor does it actually profit from the publication of these **.
The Hangzhou Internet Court held that although the virtual digital human is not a performer in the legal sense and does not enjoy the performer's rights, nor does it enjoy the copyright of the audiovisual work or the neighboring rights of the video producer, Shanghai Mofa Company, as the producer of the virtual digital human and the company to which the real actor belongs, has the relevant rights of the virtual digital human in accordance with the law or contract.
After the trial, the Hangzhou Internet Court ruled in the first instance that the defendant constituted copyright infringement and unfair competition, eliminated the impact for the plaintiff company, and compensated the plaintiff company for economic losses (including reasonable expenses for rights protection) of 120,000 yuan. A network company in Hangzhou was dissatisfied with the first-instance judgment and appealed. Subsequently, the Hangzhou Intermediate People's Court made a second-instance judgment, rejecting the appeal and upholding the original judgment.
Some people in the industry believe that as an emerging business format, there is still a lot of room for exploration in the path and mode of protection of virtual digital human rights under China's current intellectual property system, and the judgment of the first virtual digital person infringement case is of great significance for the trial of relevant cases in China.
Recently, lawyer Li Min, a senior partner of Shanghai Hansheng Law Firm, told reporters that the judgment of the Hangzhou Internet Court has played a warning role in the virtual digital human industry, reminding relevant enterprises to pay attention to protecting intellectual property rights and other legitimate rights and interests when using virtual digital human and other technologies, and avoid infringing on the rights of others. At the same time, this case also established rules for subsequent related disputes, and provided a basis for rights protection before the relevant legal norms were promulgated.
Virtual digital humans face a variety of legal risks
Recently, Li Zhanghu, a senior partner of Shanghai AllBright (Chongqing) Law Firm, analyzed the legal risks of virtual digital humans to reporters from the perspective of current laws and regulations, and proposed ways to deal with them.
He believes that the image, voice and algorithm of virtual digital humans may involve intellectual property protection. Unauthorized use, reproduction, or modification of virtual digital human features may constitute infringement. Therefore, establishing and protecting the intellectual property rights of virtual digital humans, for example through patent, trademark and copyright registration, is an important legal strategy.
In addition, virtual digital humans may collect and process a large amount of personal data, such as user preferences and behavioral habits, in the process of interacting with users. Therefore, it is essential to establish an appropriate privacy policy and take security measures to protect user data from unauthorized access, use, or disclosure.
Li Zhanghu also believes that freedom of speech and moral norms are also one of the legal risks faced by virtual digital humans. "Although virtual digital humans can provide a variety of information and advice, they must not disseminate illegal, harmful, or immoral content. Therefore, it is important to consider the development of clear policies and guidelines for the use of virtual digital humans, limiting the scope of speech of virtual digital humans, and ensuring that their actions are consistent with ethical guidelines and social values. ”
Li Zhanghu is also concerned about the intelligent characteristics of virtual digital humans, such as the possibility that virtual digital humans may provide inaccurate or misleading information due to misunderstandings or program loopholes, which may lead to misunderstandings or legal consequences for users. Therefore, the algorithms and intelligent systems of virtual digital humans should be reviewed and regulated to ensure that they provide accurate and reliable services.
Moreover, Li Zhanghu said that the blurring of the boundary between virtual digital humans and the real world may also raise legal liability issues. Although virtual digital humans are technology-driven and cannot bear the same legal responsibilities as humans, people sometimes mistake them for real people, leading to misunderstandings and legal disputes. Establishing clear user agreements and disclaimers, and ensuring that users have a correct understanding of the authenticity of virtual digital humans, can reduce potential legal risks.
Strengthen supervision to promote the healthy development of the industry
In the new era of technological development, it is necessary to increase the supervision of virtual digital humans from enterprises to regulatory authorities in the early stage, so as to promote the healthy development of the industry.
In April 2023, the Cyberspace Administration of China (CAC) solicited public comments on the Measures for the Administration of Generative AI Services, which is the first time that a regulatory policy has been issued for the generative AI industry. The following month, Douyin released 11 platform norms and industry initiatives, including the AI-generated content specification and industry initiative, which requires publishers to prominently mark AI-generated content and be responsible for the consequences. In July, the Cyberspace Administration of China (CAC) and seven other departments jointly promulgated the Interim Measures for the Administration of Generative AI Services, which came into force on August 15.
According to Zhuang Shuai, a special researcher at the E-commerce Research Center of the Network Economic Society and the founder of Bailian Consulting, Douyin's move is to regulate AI-generated content, avoid fake news and infringement of the rights of others, and protect the legitimate rights and interests of users and content creators.
Zhuang Shuai believes that from Douyin's platform specifications to the announcement of the "Interim Measures for the Management of Generative Artificial Intelligence Services", they have an important role in promoting the development of the industry, not only promoting the standardized and healthy development of the industry, improving the overall quality and competitiveness of the industry, and promoting the rapid development of the digital content industry, but also promoting the compliance development of enterprises, strengthening the respect and protection of intellectual property rights by enterprises, avoiding infringement risks, and enhancing corporate legal awareness. At the same time, it can also improve the integrity and trust of the industry, and lay a good foundation for the healthy and orderly development of the industry.
Edited by Qu Yang.
Editor-in-charge: Bai Kui.
Proofreading by Zhang Bo Zhang Xuehui.
* Legal Person Magazine, Issue 240, February 2024.