AI, short for artificial intelligence, doesn't have one clear-cut definition. According to the Canadian government, AI refers to systems that use data to automate complicated tasks and occasionally make decisions or predictions about people.

The main goal of AI developers is to create machines capable of learning, understanding intentions, performing tasks, and making decisions similar to humans. It operates through algorithms by dealing with probabilities and relying on extensive training from data to provide the best possible approximation.

AI includes various technologies such as machine learning, deep learning, neural networks, large language models, expert systems, and robotics.

Generative AI is a part of artificial intelligence that can make new things like text, images, audio, or code. It can also alter existing things like recorded language, accents, facial expressions or movements. It learns from the patterns and structure of the input data to create outputs that look like they were made by humans.

AI is being used more and more in various fields like voiceover, film, TV, digital media, music, dance, and gaming. Although AI isn't widely used yet to create audio and visual content, it's developing quickly, and it won't be long before it becomes common.

ACTRA Toronto is specifically worried about the "digital double," where machine learning systems create a synthetic performance by recording or reproducing a performer's voice, persona, or likeness. This technology has many applications, including:

• Translating or generating text-to-voice or image-to-voice;
• Creating interactive digital humans or avatars that can interact with users; and
• Manipulating existing identities in audiovisual content, commonly known as deepfakes.

As of now, AI falls short in reproducing the creativity, emotion and authenticity Performers bring to a performance. Nevertheless, AI can serve as a helpful tool in the creative process, with humans retaining the ultimate decision-making authority. In specific areas of entertainment, however, AI has begun to imitate certain aspects of Performers' roles, a trend expected to grow as the technology advances.

If AI is applied ethically and responsibly in collaboration with workers, their union and the government, it has the potential to positively impact Performers. For example, AI could allow Performers to appear in multiple productions around the world across a single period, boosting income levels. AI could increase accessibility to the labour market for Deaf and disabled Performers, while enhancing the safety of working as a Stunt Performer.

• Pay - The one-off payments offered to Performers who engage in AI work often do not reflect the fact that their image, voice or likeness may be used in perpetuity and on thousands of different projects.
• Rights - Many generative AI platforms are using original creative work without a license to create new material. This is infringing on ACTRA members’ intellectual property (personal voices, sound effects, actions, behaviour, images, likenesses and personalities) and legal (consent) rights as well as their interfering with their ability to earn a viable living.
• Transparency - Performers often do not know where or how their professional contribution is being exploited due to unclear contract provisions, unspecified usage and a lack of auditing.
• Awareness - When reviewing their contract or rider, Performers should be aware of accepting language, such as simulation, synthetization, digital double and machine learning, without first understanding the potential consequences of how their consent will impact the use of their image/likeness/voice and future compensation streams.
• NDAs - Performers are being asked to sign excessive Non-Disclosure Agreements without any knowledge of what the job entails, which is far too common in the industry.
• Reputation - Unlike most professions, the majority of Performers exist in a completely public-facing line of work with their image, likeness and voice on display for the world to see. When their image, likeness or voice is used without their consent, especially for nefarious purposes, it can cause irretrievable reputational harm. The unregulated use of AI increases the chances of a performer’s work being defamed, edited or otherwise modified by AI without their permission.
• Artistic Expression – A performer’s artistic output is an extremely personal yet collaborative process. The increasing use of AI-generated content is making it more difficult for audiences to distinguish between AI-generated content and a performer's own work. The use of AI-generated content is not only being used as a substitute for human creativity, but it is impeding on a performer’s right to artistic expression. Additionally, AI-generated content is often used without the performer’s consent or financial compensation.
• Harmful content - It is estimated that 96% of deepfakes depict women and are pornographic, and 99% of deepfake subjects are from the entertainment industry. (source: Sensity AI 2019 report)
• Equality - Rapid technological developments have the potential to worsen existing inequalities in access to work, income inequalities and wage gaps for individuals from marginalized communities across the industry. These systems scrape data from pre-existing biased sources, which can lead to deepening racial and economic inequalities. (source: ACLU report)
• Collective bargaining - This technology is challenging for Performers’ unions globally as this innovation would not be covered in historic collective bargaining agreements.
• Canadian law - There are no current Canadian laws explicitly written to regulate AI. This includes the Copyright Act, which provides the legal framework for Performers’ intellectual property rights. This is leading to some Performers being exploited. ACTRA has submitted recommendations to the Standing Committee on Industry and Technology’s Artificial Intelligence and Data Act consultation to safeguard the fundamental needs of Canadian performers: respect, fair wages, and protection against abuse.

READ: The Canadian Intellectual Property Office: A Guide to Copyright

Copyright applies to every original literary, dramatic, musical and artistic work created by the author/creator using their own skill and judgment. It also applies to other subject-matter consisting of performer's performances, sound recordings and communication signals. For these, the applicable rights may differ somewhat. The following are protected by copyright when done by a performer:

• a performance of an artistic, dramatic or musical work, whether or not the work was previously fixed (recorded) and whether or not the work's term of copyright protection has expired;
• a recitation or reading of a literary work, whether or not the work's term of copyright protection has expired; and,
• an improvisation of a dramatic, musical or literary work, whether or not the improvised work is based on a pre-existing work.
• recorded performances of actors, authors, singers, musicians and dancers on tapes, cassettes, CDs, CD-ROMs, video recordings and films, compilations of performances by performers on records, CDs and in audiovisual formats.

Copyright lasts until the end of 50 years after the end of the calendar year in which the performance occurs.

If the performance is fixed in a sound recording before the copyright expires, the copyright continues for 50 years after the end of the calendar year in which it is first fixed.

If the sound recording is published before the copyright expires, the copyright continues until 50 years after the end of the calendar year in which the first publication occurs or 99 years after the end of the calendar year in which the performance occurs, whichever is earlier.

Who owns the copyright?

Where the subject matter is something other than a work of literature or art, the copyright owner is usually:

• The maker (the person or organization that made the arrangements for the first fixation of the sounds) is the first owner of the copyright in a sound recording.
• The performer is the first owner of the copyright in a performer’s performance.
• The broadcaster is the first owner of the copyright in a communication signal.

While a performer may own their performance, they do not own the rights involved in the broadcast and distribution of that performance.

ACTRA Toronto is asking the federal government to step-in and ensure AI system developers and users are held liable for complying with existing legal frameworks, including intellectual property, data protection and privacy laws. As a longer-term priority, we are campaigning for the Artificial Intelligence and Data Act (AIDA) to ensure wholesale reform of our intellectual property framework, including new Consent, Compensation and Control rights for Performers.