Technology and law

 

 

Beyond Article 13

 

Although its withdrawal averts a setback, artists are still as unprotected against GenAI today as they were a week ago. The legislative gap remains

 

Abel Martín Villarejo

Director general de AISGE

Following the damning report of the Council of State on article 13, which agreed with AISGE's legal arguments, the Government decided to remove the controversial article from the final text of the Royal Decree, which will update the labour-related provisions of the Artist's statute. We can say that justice has been done and a fundamental flaw in the approach has been corrected. Therefore, AISGE welcomes the decision of the Ministry of Labour and calls for broad consensus to address the issue of the challenge posed by GenAI within the proper legal framework, namely intellectual property, at the appropriate legislative level, through a law enacted by Parliament and supported by the broadest possible political and legal consensus, in line with EU initiatives and comparative legal developments in other jurisdictions.

The Government of Spain has finally agreed to withdraw the controversial Article 13 of the text of the Royal Decree, whereby it intends to update and improve the professional conditions of the artistic community, backed by broad consensus among them. The contested provision sought to regulate through secondary labour legislation, rather than through an Act of Parliament, the use of GenAI in the generation of new content from the voice, image and work of actors and actresses. However, from a legal standpoint, such attempt was legally untenable, the provision would have been rendered ultra vires, as it infringed the principle that intellectual property matters must be regulated by law rather than by subordinate legislation, and because it did not take into account that artists’ works, their image and their voice, once fixed in a medium or system, must be protected by intellectual property legislation enacted by Parliament, rather than by subordinate labour regulations.

AISGE had raised concerns about this critical issue during the last month through its #NoAlArtículo13 campaign, contending that, as currently drafted, the Royal Decree amounted to the most significant erosion of artists´ intellectual property rights witnessed in Spain in recent decades, as it forced artists to assign or authorise certain uses without any compensation, and other uses with very limited compensation, in exchange for indeterminate or merely symbolic remuneration. The strength and depth of the legal and economic arguments advanced by AISGE, together with the extensive explanatory and awareness-raising efforts undertaken over the past eighteen months, as well as the successful #NoAIArtículo13 campaign, ultimately prompted the Government—and, in particular, the Ministry of Labour and Social Economy—to reconsider its position. To its credit, the Ministry had already indicated that, should the Council of State raise any concerns regarding the legality of the provision—as it ultimately did—it would take those observations into account, as indeed it has.

The Ministry of Labour has already informed the sector that it "will submit to the Council of Ministers a revised draft of the Royal Decree incorporating the observations of the Council of State." The Minister of Labour and Social Economy and the Second Deputy Prime Minister, Yolanda Díaz, are also expected to meet in the near future with AISGE and other stakeholders in the audiovisual sector to "report directly on the Ministry's forthcoming actions" regarding the use of GenAI.

AISGE welcomes and greatly appreciates this constructive approach, which will enable the Government to draw on AISGE´s expertise and support in developing a legally sound regulatory framework in such a complex area.

Both AISGE and the Government are committed to finding the best framework for protecting artists in the AI environment with the purpose of providing the highest possible degree of certainty to their work, image and voice. This objective is both legitimate and necessary, but it must be pursued with the utmost care and precision. AI has emerged in a highly disruptive manner, but it remains to be seen whether its actual impact will prove to be as profound as it was predicted just two years ago. 

In fact, AISGE has consistently called for a broad political and social consensus—akin to a State Pact on GenAI—capable of safeguarding the interests of both creators and society. This is because AI´s emergence and its integration into creative processes carried out by human beings is not merely a technological or legal issue. Rather, it is—and above all—a matter of profound social significance for society and for the development of culture as well. Art, as one of the highest forms of human expression, requires creators and a wide range of interlocutors and recipients (consumers), their response to cultural content created through human ingenuity, rather than generated artificially, will play a decisive role in this pivotal debate. Ultimately, the final decision rests with society as a whole.

The removal of Article 13 from the draft Royal Decree does not, in itself, represents genuine progress. Rather, it prevents a step backwards and avoids contaminating the future regulation of GenAI with a legally flawed approach. Actors are not better protected against the challenges posed by GenAI today than they were a week ago. The legislative gap remains. Meanwhile, technological innovation continues to advance, and every chapter and every dubbing is already a potential data set. One of the best examples of this fundamental flaw is voice actors, whose work produces hundreds of hours of clean audios, without background noise, and also perfectly associated with a script: this is the best material to train GenAI systems. Perhaps voice actors are the ones who require a more urgent and specific regulation focused on the challenges and vulnerabilities of their profession.

Looking into the future of GenAI regulation in the field of human creativity, we have already considered, on several occasions, the so-called Axel Voss Report, approved by the European Parliament on March 10. This report argues that training of GenAI cannot continue using protected works without clear rules on transparency, licensing and fair remuneration to rights holders. The report states that creators must know what content has been used in the training of GenAI 's systems. The report sets out Parliament's position on a much more stringent regulatory framework for GenAI, to prevent unauthorised use of works and to give greater control and compensation to authors and artists through collective management.

With a view to contributing to the development of a regulatory framework beyond Article 13, at a time when considerable uncertainty still surrounds the capabilities of these technologies, their legal boundaries, and their actual impact on people´s consumption habits, AISGE has also taken several initiatives. The most recent was the one approved by the Members General Meeting last June: a declaration of a general reservation of rights under Article 4 of the 2019 DSM Directive, excluding the use of protected works for generative AI training.

Let us therefore regard this post-Article 13 phase as an opportunity to move forward along the right path, now that the uncertainty surrounding the issue has been dispelled. The withdrawal of Article 13 makes it possible to regulate the use of GenAI where it properly belongs: in the Intellectual Property law, through legislation enacted by Parliament, with the stability and permanence that only a law can provide, and accompanied by robust transparency obligations governing the use of pre-existing works, of their voice and image to train AI systems, with very clear and restrictive limits and conditions, with a collective reservation of rights, with an unwaivable remuneration of collective management and with a right to oppose to uses that damage the reputation of artists or infringe in any manner their intellectual property rights or fundamental rights.

We believe that with the above bases it will be possible to advance, perhaps slowly but surely, until we reach a regulation which can be perfected as new technological capacities for generating and consuming artistic content emerge. We all agree that we should protect the artists' human creativity and differentiate it from the production of artificial content. We also believe that any use of artists´ image, voice or artistic work must be expressly authorised and compensated under effective formulas, preferably at collective level, in order to relieve artists of such intense pressure. Now we need to materialise that fundamental consensus through the most adequate processes and legislation, that is, with the maximum guarantees that what the law sets out is fair, but in this sense, it is absolutely crucial that such regulation can be effectively complied with, and that it does not end up being diluted through ineffective processes. And it is in this aspect where the principle of transparency becomes especially relevant when it comes to the capability of exercising successive control of the artistic work, the voice and the image, whether this has been authorised or not.

The goal is complex and arduous, but AISGE is certain that it will spare no effort in its quest to build a more just and secure future in the new AI environment, where artists can create their work safely and with the greatest possible freedom. Only in this manner do we believe that artists will be able to continue fulfilling their rightful social role: to evoke emotions and be the voice, image, culture, and emotional universe of society. Artistic work gives meaning to the lives and aspirations of others. It is a fundamental human need that must be nurtured, protected, and fostered with the utmost care and sensitivity. As our dearly missed Paco Rabal would have said in the year of his centenary: “I take note!”

Let's all take note!