Mechanical Personality

2020/06/25

With the broadcast of a video generated using machine learning to mimic a deceased person's singing at the year-end Kohaku Uta Gassen, the virtual reproduction of likenesses and voices has sparked debate. Furthermore, regarding living individuals, videos skillfully forged for sexual or political purposes, known as "deepfakes," have become an issue. Due to the spread of information technology, it is becoming increasingly difficult to distinguish between records of "reality" and "virtual" creations in audiovisual information representing a specific personality.

In Japan, although there are no specific laws to protect likenesses and the like, claims for compensation based on the infringement of so-called portrait rights for mental distress and publicity rights for financial damage have been recognized through the interpretation of the Civil Code. However, publicity rights, which protect commercial customer attraction, are also understood to derive from personality rights, and debate continues as to whether these rights persist after an individual's death. Furthermore, the scope of protection under the Act on the Protection of Personal Information is limited to information concerning living individuals.

On the other hand, in the United States, the majority view considers the nature of publicity rights to be property rights, and there are many instances where state laws permit the inheritance of publicity rights. Nevertheless, as evidenced by the repeated failures to amend New York State law, the situation remains one of divided opinions in terms of policy evaluation. In particular, there are significant differences between states regarding the duration of publicity rights after death, and there is a strong desire for unification through the enactment of federal law.

When the likenesses of the deceased are used beyond the record of a "personality" that once existed, many people express a sense of "discomfort." What is the true nature of this "discomfort"? Is it consideration for the bereaved family and associates? If so, is what is being envisioned the preservation of mental peace or the distribution of financial compensation? Or is the issue the risk of misleading consumers? Or perhaps it is an expression of religious sentiment toward the dead? In any case, the time has come for deeper consideration of this issue as one that also concerns freedom of expression.