{"id":38753,"date":"2025-09-17T11:39:07","date_gmt":"2025-09-17T15:39:07","guid":{"rendered":"https:\/\/www.millerthomson.com\/?p=38753"},"modified":"2025-09-17T11:39:08","modified_gmt":"2025-09-17T15:39:08","slug":"regulating-deepfakes-through-copyright-would-denmarks-proposed-approach-be-right-for-canada","status":"publish","type":"post","link":"https:\/\/www.millerthomson.com\/en\/insights\/technology-ip-and-privacy\/regulating-deepfakes-through-copyright-would-denmarks-proposed-approach-be-right-for-canada\/","title":{"rendered":"Regulating deepfakes through copyright: Would Denmark\u2019s proposed approach be right for Canada?"},"content":{"rendered":"\n

Artificial intelligence (\u201cAI<\/strong>\u201d) generated synthetic media, or \u201cdeepfakes,\u201d pose increasingly significant legal and ethical challenges within the cybersecurity landscape. Deepfakes involve the unauthorized use of an individual\u2019s likeness to generate highly realistic yet fabricated images, audio or video. Inevitably, they raise issues around personality rights, which is the right to control the use of one\u2019s own name, image, voice and other unique identifying features. As deepfake technology becomes more accessible, understanding the legal protections against the unauthorized use of an individual\u2019s likeness or other personality rights in Canada and globally, is essential.<\/p>\n\n\n\n

Earlier this summer, the Danish Minister of Culture, Jakob Engel-Schmidt, announced proposed amendments to Denmark\u2019s copyright legislation<\/a> aimed at combating the proliferation of deepfakes (the \u201cProposed Bill<\/strong>\u201d). Backed by cross-party consensus, the Proposed Bill underscores the growing urgency to regulate emerging technologies under both existing and new legal frameworks. Notably, the European Union\u2019s AI Act<\/a> (also referred to as Regulation (EU) 2024\/1689), which came into force in August 2024, already includes a requirement to label deepfake content as being artificially generated or manipulated.<\/p>\n\n\n\n

However, while the EU\u2019s approach addresses the concerns of consumers<\/em> of deepfake content, Denmark\u2019s Proposed Bill goes further by addressing rights and protections for subjects<\/em> featured in the content. Most current laws enacted to protect personality rights rely on privacy or trademark based protections, which are limited in scope and duration, rather than copyright principles. Denmark\u2019s novel approach of reframing digital identity itself as a matter of copyright offers broader protections.  In doing so, Denmark is charting new legal territory that could redefine how societies safeguard personal identity in the age of AI. The question is whether Canada should follow suit.<\/p>\n\n\n\n

Proposed amendments to Danish copyright law<\/h2>\n\n\n\n

The Proposed Bill outlines amendments to Denmark\u2019s copyright legislation that would create new pathways for individuals who are the subjects of deepfakes to take legal action. More particularly, it would prohibit the sharing of realistic digital reproductions of someone\u2019s voice, image or other personal characteristics without consent and provides the subjects of deepfakes with the right to demand removal of the content from digital platforms.<\/p>\n\n\n\n

If the platforms fail to comply with such requests, they would be liable for fines. The Proposed Bill establishes a protection period of the subject\u2019s lifetime plus 50 years following the death of the individual whose likeness was used in the deepfake content. Keeping in line with typical copyright infringement exceptions, use of deepfakes for caricature, parody or satirical reasons would be unaffected and therefore permitted under Danish copyright law.  <\/p>\n\n\n\n

Canada\u2019s current approach to copyright and deepfake regulation<\/h2>\n\n\n\n

Currently, Canadian law does not extend copyright protection to an individual\u2019s personality rights. This is due, at least in part, to the fact that the Copyright Act<\/em><\/a> only recognizes copyright in original works that are, among other things:<\/p>\n\n\n\n

    \n
  1. created by an author, and<\/li>\n\n\n\n
  2. fixed in a material form.<\/li>\n<\/ol>\n\n\n\n

    In practice, what this means is that while one\u2019s voice or face are not on their own protected under copyright, as soon as they are incorporated into a fixed work, such as a recording of a voice or a photograph of a face, then copyright subsists in that work.<\/p>\n\n\n\n

    Importantly, in most cases, the first owner of copyright in a work is the author of the work. As a result, when a photographer takes a picture of a subject, it is the photographer \u2013 and not the subject whose image is being captured \u2013 who owns the copyright in the resulting picture.<\/p>\n\n\n\n

    With this in mind, if the subject of a deepfake wanted to take legal action based on the depiction of their persona without their permission, they would have to rely on other statutory frameworks and common law actions, such as:<\/p>\n\n\n\n