The waves of the times are rising again in waves, and while the meta-universe fever continues to rise, virtual digital people are also taking this opportunity to enter the public eye. In fact, the concept of virtual digital people and various business models is not new; as an early secondary yuan and otaku culture experience, the author fell into the pit of the virtual idol Hatsune Miku as early as 2007.
Time to 2022: with the advancement of blockchain technology and the maturation of AR/VR, virtual engines, 3D projection, and other hardware technologies, virtual digital people have ushered in a new era of development, with a more complete immersive experience greatly increasing the business value of virtual digital people.
According to a research report released by Ai Media Consulting, as early as 2020, the core industry scale of China’s virtual digital human has reached 3.46 billion yuan, an increase of 70.3% year-on-year, and the market scale of the virtual digital human periphery in 2020 is 64.56 billion yuan. In 2022 a virtual digital human lends itself to the heat of the meta-universe and will create an even broader market.
So, today, Sara’s team will try to analyze the possible legal risks in the commercial application of virtual digital people for you.
What is a virtual digital person?
If Hatsune Miku is the virtual digital human of the 1.0 era, then our current virtual digital human applied in the metaverse is its 2.0 upgraded version. According to the definition of virtual digital human in Hard Technology’s Virtual Digital Human Industry Report, a virtual digital human refers to a comprehensive product that exists in the non-physical world, created and used by computer graphics, graphic rendering, motion capture, deep learning, voice synthesis, and other computer means, and has multiple human characteristics (human appearance, action, interaction ability, etc.). It is also referred to in the market as a virtual human, a digital human, and other names.
Characteristics of virtual digital humans
As it stands, virtual digital humans in the metaverse have three basic characteristics.
Virtual digital people exist in immaterial space and are products created and driven by real-world people through computer technology. Under certain conditions, such as the use of sophisticated holographic projection technology, virtual digital humans can also interact with the physical world across dimensions.
The appearance of virtual digital humans is very similar to that of humans. This is also the most significant feature that distinguishes the virtual digital humans in the metaverse from the previous generation, such as Hatsune Miku. Based on the increasing maturity of technologies such as graphic rendering, motion capture, and holographic projection, current virtual digital humans can even have the same characteristics as humans in the physical world.
Even in some cases where there has been a fake, the naked eye finds it difficult to distinguish between virtual digital people and real human situations. A South Korean variety show has used AR and VR devices to bring a mother and her late daughter together again in the metaverse, fulfilling her long-cherished wish.
The virtual digital human in the meta-universe has more advanced data processing and analysis capabilities to master more powerful deep learning capabilities. A typical example is AlphaGo (Go). Developed by a team led by Demis Hassabis at Google’s DeepMind, AlphaGo is the world’s first artificial intelligence robot to beat a professional human Go player and the first to defeat a world Go champion.
Although there are still some difficulties in the practical application of the deep learning function, in the simulation of human emotion expression and other aspects of a major deficiency, in the foreseeable future, the virtual digital human is likely to achieve a full simulation, so that a real human emotion can be placed in the object.
Types of Virtual Digital People
In addition to the technical aspects, virtual digital people can be divided into two main categories in terms of practical applications: service-oriented and identity-oriented. A service-oriented virtual digital human is a quantitative product, a kind of object, such as virtual teachers, virtual waiters, etc. This kind of virtual digital human is mass-produced and used to serve various daily needs of users.
Identity-based VDNs can be subdivided into two types: one is a VDN image with a unique identity created by investing a lot of resources, such as idol singers, special NPCs (game watchers), etc. These identity-based VDNs are more often used for specific entertainment projects.
Another type of identity-based avatar is our own projection in the metaverse, that is, our own avatar, which is the most special because it carries our own emotions and images and is even a prerequisite for our possession, use, disposal, and gain of property in the metaverse.
Therefore, we must pay extra attention to the potential legal risks associated with the commercial application of such identity-based virtual digital persons.
Possible legal issues in the commercial application of virtual digital people
How to determine the copyright of works created by virtual digital humans?
At this stage of its development, artificial intelligence is capable of simple “creative” work, and in April 2019, the world’s first “surreal” AI artist, Ada, was created from the idea of British gallery owner Mellor, an AI algorithm written by experts at Cambridge University, and co-produced by Engineered Arts. “surreal” AI artist Ada. The robot’s entire body is made of silicone and 3D printed, mechanically combined.
Ada can create a piece of art in 45 minutes, each one unique, and the path created by the algorithm is deleted afterward, so it cannot be copied. Ada’s algorithm contains different artificial intelligence and computer programs and corresponding input databases, which also means that Ada can not only continuously refine her work as a traditional artist but also master several different stylistic strokes at the same time.
So, who owns the intellectual property rights to AI-created works? According to Article 9 of China’s Copyright Law, copyright holders include (a) authors; (b) other natural persons, legal persons, or unincorporated organizations that enjoy copyright in accordance with this law.
According to Article 11 of the Copyright Law, the natural person who creates the work is the author. If a work is created by a legal or unincorporated organization under the auspices of the legal or unincorporated organization, on behalf of the will of the legal or unincorporated organization, and the legal or unincorporated organization assumes responsibility for the work, the legal or unincorporated organization is considered the author.
Therefore, the prerequisite for enjoying copyright is to have the appropriate legal subject qualification (natural person, legal person, or unincorporated organization). Our AI, or virtual digital person, has not yet obtained the status of a legal subject within our legal system.
Therefore, the virtual digital person cannot obtain the copyright of the work. In fact, the virtual digital person itself is regarded as “work.” In judicial practice, the copyright of the works recreated by such works is generally attributed to the natural person, legal person, or unincorporated organization that created the original work (i.e., the virtual digital person).
In addition, before considering the attribution of the copyright of works created by virtual digital people, we also need to consider whether all works by virtual digital people can be considered “works” protected by copyright law. The answer is in the negative.
According to Article 3 of the Copyright Law, works referred to in this law refer to intellectual achievements in the fields of literature, art, and science that are original and can be expressed in certain forms, including written works; oral works; musical, dramatic, operatic, dance, and acrobatic works; art and architectural works; photographic works; audiovisual works; graphic works and model works such as engineering design drawings, product design drawings, maps, and schematics; computer software; and other intellectual achievements that meet the characteristics of works.
Similarly, Article 2 of the Regulations for the Implementation of the Copyright Law also provides for works accordingly; works referred to in the Copyright Law refer to intellectual achievements in the fields of literature, art, and science that have originality and can be reproduced in some tangible form.
It can be seen that the following elements are required to constitute a work in the sense of the Copyright Law:
originality. A work under copyright law must be an intellectual work created by the author that expresses his or her own thoughts and feelings and is not plagiarized from another’s work.
The work can be reproduced in some tangible form. Copyright is an intangible property right. Unlike tangible property rights, the object of work has a certain external shape and materiality, exists in real space, and can be directly perceived by people. The object protected by copyright law is the intellectual result of the collection of thoughts, feelings, and ideas expressed by the author. A work protected by copyright law must be attached to a certain carrier, fixed and recorded in a certain form, and can be copied in large quantities.
The work does not violate the law. Works whose publication or dissemination is prohibited by law are not protected by copyright law. Typical works, such as obscene and pornographic works, cannot be protected by copyright law because they violate the laws of China and public order and morals. Other than the Constitution, the publication law is the main basis for determining whether a work is legal. Other laws may also serve as a foundation.
Therefore, the works created by the virtual digital person, in constituting the embodiment of works protected by China’s copyright law, are copyrighted by the natural person, legal person, or unincorporated organization that created the virtual digital person.
Creating a virtual digital person using another person’s image
There are legal risks.
At this year’s Jiangsu TV New Year’s Eve party, a popular star collaborated with the late singer Teresa Teng on three tracks, including “Big Fish Begonia” and “Small Town Story.” This reenactment of Teresa Teng’s virtual digital human image was done using similar video-based virtual synthesis technology.
Similar virtual digital human concerts have become commonplace and are a new driver of the fan economy. So what are the legal risks of creating and anchoring a virtual digital person in the image of a real person and using it for commercial activities?
The creation of such virtual digital people requires the use of real people’s portraits, voices, names, and other materials. According to Article 990 of the Civil Code, “personality rights” are the rights of civil subjects to life, body, health, name, name, portrait, reputation, honor, privacy, etc. In addition to the personality rights stipulated in the preceding paragraph, natural persons enjoy other personality rights and interests arising from personal freedom and dignity. Therefore, the creation of a virtual digital person anchored to a real person requires the consent and authorization of the real person.
In addition, personality rights take the personality interests of civil subjects as their object, and personality interests are non-property in nature. According to Article 992 of the Civil Code, personality rights cannot be renounced, transferred, or inherited. Therefore, the personality rights involved in the creation of a virtual digital person, such as portrait rights, body rights, and name rights, cannot be transferred in any paid or unpaid form.
The Sara team believes that the Civil Code does not prohibit natural people and legal persons from disposing of parts of their personality rights, such as portrait rights, name rights, etc. As long as the act of disposal does not belong to the abandonment, transfer, or inheritance of their personality rights and does not violate the general public order and morality of society, the act of disposal is tolerated and protected by law.
However, some other special personality rights that are inseparable from personal relationships and are related to personal dignity cannot be arbitrarily disposed of, such as the right to life and the right to privacy. At the same time, since personality rights are not property rights, the law does not encourage natural people and legal organizations to profit from their own personality rights. Therefore, licensing others to create their own virtual digital person for a fee may be regarded as an act of transferring personality rights prohibited by the Civil Code, resulting in legal consequences such as invalid contract terms.
Therefore, Team Za believes that when agreeing to license others to create their own virtual digital person using their own personality rights, it should be without compensation.
In addition, since the virtual digital person is extremely similar to the real person in appearance and can act and speak to a certain extent, there is a legal risk of infringing on other people’s personality rights, such as the right to reputation, honor, privacy, and even constitutional rights.
Imagine that even if a real person agrees to create his or her own virtual digital person, the behavior and speech made by the virtual digital person during its existence are not under the control of the real person. Once the users, operators, and administrators of the virtual digital person use it to make statements or act against the will of the person authorized by the real person, it is highly likely to face the legal risk of violating the personality rights of others.
Finally, in the case of a deceased person, there is a great legal controversy in practice as to whether his or her next of kin can give consent on behalf of others to use his or her name, portrait, voice, etc. to create a virtual digital person.
According to Article 994 of the Civil Code, if the deceased’s name, portrait, reputation, honor, privacy, remains, etc. are infringed, the spouse, children, and parents have the right to request the perpetrator to assume civil liability according to law; if the deceased has no spouse or children and the parents are dead, other close relatives have the right to request the perpetrator to assume civil liability according to law.
The law does not provide that the next of kin of the deceased can dispose of the personality rights of the deceased. As personality rights are the rights most closely related to the natural person, in principle, only the person can make certain acts of disposition of his or her own personality rights. The Civil Code only gives the next of kin the right to request the court to protect the deceased’s personality rights in case of infringement.
The virtual digital person in the metaverse, as a technological product very similar to a real person, needs to be very cautious and careful in its commercial application, and the slightest carelessness may lead to legal and ethical risks. Throughout history, there has never been anything natural or man-made that resembles the real us as much as a virtual digital human. Therefore, while taking full advantage of its economic value, the challenges and changes that technology can bring to ethics and morality should also be actively explored. Ultimately, the purpose of technological development should be to benefit people.