In the commercial scenario of virtual human performance, according to the provisions of the current effective laws and regulations, each market participant enjoys different rights. The person has the rights of the performer, but may be subject to restrictions on the exercise of his rights as stipulated in the contract; Virtual humans do not enjoy performer rights; R&D and operators enjoy relevant copyrights and neighboring rights in accordance with the provisions of contracts and laws and regulations.
Keywords: virtual humans, performances, law, rights.
Virtual human performances include virtual human live performances, recording and disseminating virtual human performances, in order to create virtual idols and monetize through live broadcast rewards, song releases, commercial endorsements, commercial performances, etc. There are some differences between the commercial activities of virtual human performances and live performances and virtual human live broadcasts at the level of legal facts, and the legal issues arising are also different.
1. Characteristics of the legal facts of virtual human performances.
1) Most of the transaction methods between virtual human buyers and virtual human developers are customized.
Different from the platformization in the scenario of virtual human live streaming, in the virtual human performance scenario, the transaction method between the virtual human developer and the buyer is more customized. From the perspective of the virtual human developer and the buyer, since the buyer's business purpose is to make profits through the virtual human performance service, the virtual human image, performance level, intelligence and other dimensions are required to be higher, therefore, the transaction method between the virtual human developer and the buyer is mainly customized, that is, the virtual human developer develops and manufactures the virtual human according to the buyer's needs, with a higher degree of refinement, and the period of continuous research and development in the later stage is longer, rather than the platformization in the virtual human live streaming scenario. Usually in the customized contract clauses, the buyer has more rights in terms of intellectual property rights and data rights related to virtual humans.
2) Most of the virtual human performances involve the participation of the middle people.
Different from the use of artificial intelligence algorithm-driven technology (without the participation of real people), most of the virtual human performances are participated by the middle people, and the middle people are incognito and hide their own images to participate in the performances. Some developers or operators will use real person modeling in order to pursue a more realistic and three-dimensional virtual person; Limited by the artificial intelligence algorithm-driven technology, most of the driving technologies used in virtual human performances are driven by real people, that is, the expressions and movements of real people are captured by smart devices to show dynamic effects, so that the expressions and movements of virtual humans are presented in a state close to that of real people. The real actors used in the Reality Driver are generally referred to as the "Medium Person". In commercial practice, the real person who provides voice samples for the virtual person is also referred to as the "person in the middle", which is generally referred to as the "person in the middle". Unlike live performances, usually the person does not identify himself or herself.
3) There are more market participants in virtual human performances.
Finally, market participants in the virtual human performance industry include virtual human developers, middle people, operators (in the case of live performances, they are generally also live broadcast room operators),* or live streaming platforms.
II. Legal Issues Related to Virtual Human Performances**.
a) The rights and obligations of the person.
As a unique market participant in the virtual human performance scene, the rights and obligations of the person in China are a new legal issue, which will be clarified below.
1.Do people have performer rights?
Article 39 of the Copyright Law of the People's Republic of China stipulates the six rights of performers, and Article 40 stipulates the ownership of the rights of performers and performers in the case of on-the-job performances. Does the person who uses his own physical performance, singing and other performance behaviors to drive the virtual person to perform, and the created live broadcast or ** and other works are disseminated on the Internet, does it belong to the performers under the Copyright Law?
Some scholars believe that this is the dilemma of the "misalignment" of the subject of copyright laws and regulations, and we can learn from the exploration of the theory of copyright law protection of AI-generated content to carry out institutional innovation, regard the virtual idol and the person in it as the whole of the completed performance behavior, and use "special duty performance" to determine the ownership of rights and their restrictions. The party enjoys the personal right to indicate the identity of the performer, and the operator enjoys the personal right and other property rights to protect the performance image from distortion, and the parties may make restrictive provisions in the contract on the exercise of the right of the person in the performance to indicate the identity of the performer. [1]
The use of the live broadcast or recording of the virtual human performance driven by the person in the person to disseminate it, which is essentially a digital presentation of the performance of the person in the middle, and is not created independently by the virtual person, and the person in the person complies with the provisions on performers in the Copyright Law of China. However, the virtual human performance focuses on the virtual image, and the operator usually signs a confidentiality agreement, power of attorney and other legal documents with the person in the agreement, and the person in the agreement shall not disclose the name, identity and other real person information to the public, and once the information of the person in the person is leaked, the virtual person is likely to be difficult to maintain its image setting, and the business model of the entire virtual human performance may be subverted, which will cause the person in the person to give up the right to show his identity as a performer to the public. However, in commercial activities, the waiver of this right is often accompanied by a balance of economic compensation, and in practice there have been no cases in which a person in the middle of the case sues for the right to identify himself as a performer to the public. In addition, if the person is an employee of the operator or R&D company, and his performance is a performance of duty, the rights and obligations of both parties may be agreed upon by both parties or determined in accordance with Article 40 of the Copyright Law of the People's Republic of China.
In China's first infringement case involving "virtual digital humans" (Mofa v. a network company in Hangzhou, a copyright infringement and unfair competition dispute case)[2], Mofa Company comprehensively applied a number of artificial intelligence technologies such as AI performance animation technology, hyper-realistic character intelligent modeling and binding technology, intelligent animation and speech synthesis technology, and intelligent interaction technology to create a hyper-realistic virtual digital human ADA. In October 2019, Mofa Company released the virtual digital human ADA through public activities, and in October and November of the same year, it released two ** paragraphs through the Bilibili platform, one was used to introduce the scene application of the virtual digital human ADA, and the other was used to record the motion capture screen of the real actor Xu and the virtual digital human ADA. The Hangzhou Internet Court held that: "Because the virtual digital human ADA is driven by real people, through real-time voice generation and motion capture of smart wearable equipment, ADA's monologues, dancing and other behaviors are not independently created by it, and the voice, demeanor, and movements of the "performance" displayed by it are the relevant performances of the person Xu in a highly restored manner, and are not new performances based on the real performances." Xu meets the relevant provisions of the Copyright Law on performers, and as an employee of Mofa Company, he is performing on duty, and combined with the written agreement of both parties, Mofa Company should enjoy the property rights in the performer's rights. ”
The above-mentioned cases show that in judicial practice, Chinese courts recognize the performer's rights of the Chinese people, and also recognize the agreement between the Chinese people and their employers on the performance of duties.
In addition, a person in the general sense who only provides sound samples for the developer or operator of a virtual human to form a sound library does not belong to the performers under the Copyright Law and does not enjoy the rights of performers. However, according to the provisions of paragraph 2 of Article 1023 of the Civil Code, the voice of a natural person who provides a voice sample is protected by law.
2.The rights of workers or labor rights of the person.
The person has the rights of the worker or other rights depending on the nature of the contract he or she has signed with the employee. If the person has signed an employment contract with the performance company (usually the operator), he or she shall enjoy the rights of an employee in accordance with the law. If you sign a labor contract, employment contract or other contract, you also enjoy relevant rights in accordance with the law.
3.The normative performance obligation of the person in the .
The person in the law has the same obligation to regulate behavior as a live performance. According to Article 1 of the Code of Conduct for Online Anchors, the person in the middle is a "virtual anchor synthesized by artificial intelligence technology", and with reference to this provision, therefore, the person in the middle should also refer to the provision to regulate his behavior, and must not provide performances with illegal content.
2) Whether the virtual person enjoys the rights of the performer**.
Whether a virtual person enjoys the rights of a performer is an extension of the question of whether a virtual person has the qualifications of a legal subject.
1.Business views of various market participants.
Judging from the current business practice, none of the market participants regarded virtual humans as market players, but as performance tools. The virtual human developer regards the virtual person as the result of work, the buyer regards the virtual human as a more stable and profitable asset than the real idol, and the person in the virtual person regards the virtual person as a marionette.
2.Perspectives and analysis of legal theories.
Theoretically, whether a virtual person has the qualification of a legal subject can be divided into two schools[3], in which the object theory believes that the virtual person does not have the qualification of a legal subject, and the subject theory believes that the virtual person can be given a legal personality so that he can enjoy the qualification of a legal subject
First, the ** person said that the artificial intelligence body is a purposeful system, and its relationship with the operator is identified as the relationship between the **person and himself in the legal ** relationship; Then, according to the theory of **person, it is considered that the virtual person has the qualification of a legal subject, and the relationship between the virtual person and the operator (the person in the person, the virtual human developer, or the operator) is recognized as a legal relationship. In this case, the first difficulty is that neither the person in the middle nor the operator nor the virtual human developer has expressed any intention to grant the virtual human ** right. If it is classified as statutory**, the capacity of virtual people is also called a new legal issue. Especially in the case of being driven by people in the middle, the so-called ** and performance of virtual people are impossible to achieve when they leave the people. Even if the virtual human is forcibly qualified by law, it is difficult to explain that the virtual person enjoys the performer's rights because of the operator.
Second, the theory of electronic personality and the theory of limited personality, the theory of electronic personality holds that a virtual person can be given an electronic personality, and the theory of limited personality holds that the legal personality of a virtual person does not have the ability and status to bear full responsibility[4], and it may be inferred that the virtual person enjoys the rights of electronic performers or limited performers. Both of these doctrines face the need to further clarify their connotations, exercise rules, and the objects and extent of restrictions.
Third, the theory of personality fiction holds that a virtual person can be given legal personality through the method of "deeming" [5]. This is to endow virtual humans with legal subject qualifications through legislation, and it is necessary to consider the practical significance of granting virtual human legal subject qualifications.
3.Perspectives on judicial practice.
In the above-mentioned first infringement case involving "virtual digital human" in China, the Hangzhou Internet Court analyzed the issue of the determination of the copyright and neighboring rights of virtual humans, and held that as a specific application of artificial intelligence technology and a collective product of multiple technical fields, virtual digital humans themselves run the established algorithms, rules, computing power and learning capabilities obtained, all reflect the intervention and choice of the developer and designer, and to a certain extent, they are only tools for the author to create, and do not have the identity of the author. Therefore, virtual humans are not performers within the meaning of the Copyright Law and do not enjoy performers' rights.
In the author's opinion, in the scenario of virtual human performance, it is of no legal significance to give the virtual human the subject qualification and then enable him to enjoy the rights. In the scenario of virtual human performance, the virtual human has not made substantial contributions to the performance, and its image, role setting, performance behavior, and ** works are all completed by market participants, and the virtual human itself is the result created by market participants. Virtual humans themselves have no material needs, and giving them subject qualifications and rights will not prompt them to create more. Therefore, in the current virtual human performance scenario, there is no need to give the virtual person the legal subject qualification, and therefore, the virtual person does not enjoy the performer's rights.
3) Relevant copyright issues.
1.Copyright ownership of virtual human images.
The image of the virtual human can be generated by a software program or drawn by an art staff, and is usually created by the virtual human developer according to the needs of the operator. In order to highlight the characteristics of the virtual human, the developers and operators of the virtual human usually highlight the characteristics of the virtual human, including facial features, physical features, clothing and accessories, etc. This gives the image of the virtual human a certain originality and meets the definition of a work of fine art. Therefore, the image of a virtual human can be protected by the Copyright Law as a work of art. Article 14 of the Copyright Law stipulates the ownership of copyright in collaborative works and Article 19 stipulates the ownership of copyright in entrusted works. Therefore, the developer and operator of the virtual human enjoy the copyright according to the specific method of creating the virtual human image in accordance with the law or in accordance with the contract.
In the aforesaid first infringement case involving "virtual digital person" in China, the Hangzhou Internet Court held that, in combination with the requirements of the originality of the work, the expression of the virtual digital human ADA borrowed from the physical form of a real person, and at the same time, it expressed the author's unique aesthetic choice and judgment on the line, color and specific image design through virtual beautification, which constituted a work of art, and Mofa Company enjoyed the property rights of the work of art.
2.Copyright attribution of audiovisual works.
According to Article 9 of the Copyright Law, the copyright of audiovisual works formed after the recording or live broadcast of virtual human performances belongs to the author. Participating in the creation of virtual human performances include virtual human developers, operators, and people. The person in the middle is generally an employee of the operator, and his performance is a performance of duty and does not enjoy copyright. Between the virtual human developer and the operator, in accordance with the provisions of Article 14 of the Copyright Law on the ownership of the copyright of cooperative works and Article 19 of the provisions on the ownership of the copyright of the entrusted works, the virtual human developer and the operator shall enjoy the copyright in accordance with the law or in accordance with the contract depending on the specific way in which they create the audiovisual works. However, audiovisual works formed by recording or live streaming virtual human performances are bound to use virtual human avatars. In practice, the copyright owner of the virtual human image and the audiovisual work formed by the virtual human image are usually the same subject, but if the author of the virtual human audiovisual work is not the copyright owner of the virtual human image, it is necessary to obtain the authorization of the copyright owner of the virtual human image.
In the above-mentioned first infringement case involving "virtual digital humans" in China, the Hangzhou Internet Court held that the ** produced by Mofa Company using the ADA image created by it constituted audio-visual works and video products respectively, and Mofa Company enjoyed the property rights and video producer rights of the above-mentioned works; Xu, as an employee of Mofa Company, is performing on duty, and in combination with the written agreement of both parties, Mofa Company should enjoy the property rights in the performer's right.
As an emerging economic industry, virtual human performance contains a variety of artificial intelligence models, and has a unique business model from design and development to profit-making. When the market participants and their rights are aggregated into the business scenario, clarifying the rights of each market participant and the boundaries of their rights is not only a demand for judicial protection in the era of artificial intelligence, but also a governance path to promote the healthy development of the digital economy. This paper analyzes in detail the rights and obligations of various market participants in the virtual human performance scenario, in order to contribute to the healthy development of the digital economy.
The first draft of this article was completed in December 2022 and is part of the chapters in the Metaverse Legal Practice Monograph, which was revised by the author Hou Yujie on December 30, 2023. ）
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