Press Release- The UPP Union des Photographes Professionnels alerts public authorities to the urgent need for a legal framework for the use of generative artificial intelligence

Paris on July 3 ,2023,

Union des Photographes Professionnels alerts public authorities to the urgent need for a legal framework for the use of generative artificial intelligence

In the current context of exponential use and development of generative artificial intelligence, the Union des Photographes Professionnels stresses the need for a legislative framework that allows :

1. Adapt legislation concerning the consent and remuneration of authors whose works are used to drive systems,
2. Protect AI productions and their creators,
3. guarantee the transparency needed to prevent abuses and aberrations.

The use of generative AI raises a number of legislative issues concerning the origin of images, the status of users and their creations, as well as issues of ethics, transparency and democracy.

Matthieu Baudeau, President of UPP, comments: "With the growing economic weight of AI-generated productions, it is becoming essential to secure the rights of those who have enabled these productions to exist, and to avoid a legal vacuum that would create both a danger of economic parasitism and a risk of dispossession of rights over these poorly identified legal objects".

Artificial intelligence and its challenges will be the subject of a conference organized by UPP as part of the ON/ OFF festival at Rencontres d'Arles, on Thursday July 6 at 5:00 pm, Cour de l'Archevêché.

Generative artificial intelligence and photography

The use of visual generative artificial intelligences (MidJourney, Dall-E, Stable diffusion, etc.) enables anyone to describe their expectations using a text called a "prompt", and receive an immediate response from the system with a series of visuals whose quality improves day by day.

Generative AI systems rely on algorithms that are trained to associate words with visual renderings through validation loop processes. Confronted with an image, the system tries out an answer word and is confirmed in its choice or corrected in the event of a wrong answer. It is this very large-scale repetition (billions of loops over billions of images) that enables the AI to learn. So, when the user asks the system for a word, the AI suggests the most statistically probable answer, based on its past experience of word/image association. So the AI doesn't compile existing images, but "creates" based on what it has learned about the word used in the prompt.

1. Image origin

In order to learn, the generative artificial intelligence system is fed by all images, and more particularly by photographs found on the Internet. In France, these photographs are considered to be works protected by copyright, which protects all works of the mind from the moment they are created.

The DAMUN Directive 2019/790 enshrined an exception to copyright by authorizing data mining (TDM) by artificial intelligence systems, including for commercial purposes, and unless expressly withdrawn by the authors "by means of machine-readable processes (image metadata, site terms and conditions)".

In practice, this "opt-out" mechanism is inoperative today: firstly, because image metadata is not/is not correctly included when images are shared on other websites or social networks; secondly, because the general terms and conditions of the original website where the photographs were published are not available when the photograph is shared; and thirdly, because this mechanism does not take into account massive use prior to the text of the directive introducing this rule.

What's more, these regulations, recent as they are, fail to consider the uses that generative AIs make of protected works: creating an economic system in which players (AI companies) benefit from revenues generated by user subscriptions, thanks to the continual use of protected content to drive their systems.

To date, the authors whose works have been used to train AIs have not been consulted, have not given their consent and are not being remunerated for these uses of their photographs.

It is therefore essential to review the text of the DAMUN directive in order to organize value sharing and establish fair conditions for past and future use of photographs by AIs, and in particular :

• Inform stakeholders of photographs used for training purposes by AI systems,
• Set up a consent management system for authors whose images are likely to be used,
• Remunerate past and future uses of photographs used by AI systems.

It ishardly conceivable that consent and remuneration should be negotiated individually by authors with AIs .A collective management mechanism would therefore appear to be the most appropriate way of achieving a sharing of value that is more in line with the provisions of international copyright conventions, i.e. the prohibition of limitations or exceptions to copyright which conflict with a normal exploitation of the work and unreasonably prejudice the legitimate interests of the author.

2. User and creation status

Many national jurisdictions around the world agree that, in the absence of human authorization, artificial intelligence producers/productions cannot be protected by copyright systems.

However, this legal choice is neither universal nor systematic, and governments often find themselves in a tricky legal position when it comes to defining the limits of AI-assisted creations on the one hand, and AI-generated productions on the other - the former being protected by copyright but not the latter.

Because artists and authors will increasingly be called upon to work with these tools, and so that they can draw resources from their work within a secure legal framework, the legislator must provide a legal framework for "prompt art". It is urgent to recognize the status of author to those who use generative AI as a means of expressing themselves and creating a work of the mind, and important to protect the original quality of the works resulting from these prompts.

Whether it's an extension of copyright, another intellectual property right, or an alternative means of securing the rights of creators, a regime needs to be established and implemented. With the growing economic weight of AI-generated productions, it is becoming essential to secure the rights of those who have enabled these productions to exist, and to avoid a legal vacuum that would create both a danger of economic parasitism and a risk of dispossession of rights over these poorly-identified legal objects.

3. Ethics, transparency and democracy

In a context where many images are shared and spread virally without their veracity or ethics having been validated, artificial intelligences represent the hub of personal information whose origin and destination cannot be monitored or controlled. The opacity of the way these systems operate undermines the right to protection of personal data.

There is therefore an urgent need for regulations to ensure that authors' rights of access, rectification, opposition and deletion of their personal data used by artificial intelligences are respected. This right would cover :

• Data protected by the RGPD,
• But also creations of which they are the rightful owners and on which the AIs have been trained,
• Or productions made "in the manner of" or "in the style of" and which generate images likely to prejudice them either through plagiarism or counterfeiting, or through failure to pay royalties,
• And finally, productions representing them.

In the interests of ethics and transparency, and to combat misinformation in particular, images generated by artificial intelligence need to be immediately identifiable by the general public, so that everyone can consciously make their choice of communication content, and distribute these images in full transparency of their true nature: a photograph of the real world, or an image conceived with no desire to document reality. The future of journalism, and of democracy in general, depends on our ability to distinguish truth from falsehood in the mass of images that surround us.

The players offering generative AI tools must be made to face up to their responsibilities in this area.

About UPP:

UPP is the leading professional organization for the defense of photographers' rights. Its aim is to promote the profession and look after photographers' interests. It studies all social, economic, legal and other issues of interest to the photographic profession. It is particularly concerned with respect for copyright, as defined by the French Intellectual Property Code. Working constantly to defend authors and improve conditions for the profession, UPP represents photographic authors, craftspeople and photojournalists in dealings with public authorities and national and international organizations.