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Art, Technology and the Law: Capture by Paolo Cirio

Fasken
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Intellectual Property Bulletin

This bulletin marks the first in a series that will explore technology-based art and its intersection with pressing legal issues in the fields of intellectual property and privacy law.

The first work discussed in this series is by digital artist Paolo Cirio. His work typically invokes legal, economic, and cultural systems at play in our contemporary information-based society. This results in interventionist artworks that use web platforms and interfaces, digital artifacts, photos, installations, videos, and public art.

His most recent work, Capture, consists of a database of 4000 faces of French police officers, sourced from purportedly public online sources. The images are then processed using facial recognition software and posted online, on a web platform created by the artist specifically for the purpose of crowdsourcing the identity of the police officers.

The work exists through multiple spheres: as a work of Internet art (the website described above located at www.capture-police.com), as a work of public art (Cirio printed the officers’ headshots as street art posters and posted them in urban public spaces around Paris), and as a work of installation art meant for the museum/gallery space (Cirio selected 150 faces to compose a matrix of prints on a 15 meter gallery wall).

Capture is meant to comment on the “potential uses and misuses” of artificial intelligence systems, and more specifically facial recognition software. Cirio questions the asymmetrical power relationship between the State, represented through law enforcement, and its citizens. In doing so, he turns a lens towards issues of privacy protection, image rights, and copyright, but also how artificial intelligence systems intersect with these areas of law and upend the legal ramifications inherent to their use. Cirio’s work also exposes how the legal and regulatory loopholes that benefit those in positions of power, often aided by the use of artificial intelligence, may be used against them, as an act of political subversion. Indeed, Cirio aims to show that artificial intelligence systems, when left unchecked, may have particularly harmful consequences for those targeted by such systems, even the police.

Recently, this work came under fire when France’s Minister of the Interior, Gérald Darmanin, denounced the work publicly, calling for the cancellation of an exhibition of the work at Le Fresnoy - Studio national des arts contemporains, one of France’s foremost contemporary art institutions. Le Fresnoy reacted by removing the artwork in question from its Fall 2020 exhibition. This of course begs the question: is Cirio’s work legal? Could it be exhibited in Canada? Here, we examine Capture through the lens of various aspects of Canadian privacy and intellectual property law.

Capture and the Right to Privacy

In Canada, an individual’s right to privacy is a fundamental right guaranteed by the Canadian Charter and, in Quebec, the Quebec Charter as well as the Civil Code. The right to privacy encompasses a collection of rights (for example, the right not to be subject to unlawful search and seizure, the right to confidential treatment of one’s personal information, etc). It generally refers to the concept that one’s personal information is protected from public scrutiny, namely through public or third-party disclosure. An individual’s consent is considered to be the cornerstone of all privacy legislation, whether provincial or federal. Indeed, it is necessary to obtain consent before processing collecting, using, or disclosing personal information, without which the circumstances in which such information may be processed are limited.

Personal information is any information that relates to an individual and allows that person to be identified. Such information includes one’s name, address, date of birth, financial information, etc. Personal information may also be regarded as sensitive, in which case it requires a greater degree of protection. Information relating to one’s health, biometric information (i.e. physical or behavioral human characteristics that may be used to digitally identify a person), and genetic information are considered sensitive.

In Quebec, a business that conducts its activities within the province and collects, holds, uses, or communicates personal information is subject to provincial privacy legislation (the Act Respecting the Protection of Personal Information in the Private Sector). The Act may also apply to out-of-province businesses provided that some aspect of their business is conducted in Quebec, which would necessarily include the treatment of personal information of Quebec residents. Individuals are not subject to the application of the Act. However, if an individual infringed another person’s right to privacy, they could incur civil liability by virtue of Quebec’s extra-contractual liability regime.

Federal privacy legislation (the Personal Information Protection and Electronics Documents Act) equally is only meant to apply to businesses. Yet, a recent Federal Court decision ruled that an individual, who was the sole owner of a website operating out of Romania, had contravened PIPEDA by collecting, using, and disclosing on his website personal information contained in Canadian court and tribunal decisions for inappropriate purposes and without the consent of the individuals concerned. This decision is particularly instructive because liability was imposed on an individual who was solely operating a website and residing outside of Canada.

The similarities to Capture are indeed noteworthy, since Cirio collected individual police officers’ images, ran them through a facial recognition software, and disseminated those images on a website, which he solely operates, to crowdsource the identity of the police officers, without their consent. If, for example, Cirio used the images of Québec or Canadian police officers, they could potentially take legal action against him pursuant to Québec’s civil liability regime or PIPEDA’s compliance rules.

It is important to note, though, that one’s right to privacy must be weighed against other fundamental rights or public policy interests, such as freedom of expression (which includes artistic expression) and the public’s right to information. These are certainly two relevant considerations with respect to Capture and indeed place limits on the right to respect for one’s private life. The balancing of these rights and policy concerns will necessarily depend on the nature of the information disclosed and on the situation of the individuals concerned. With respect to Capture, one could argue that police officers, as law enforcement agents acting within their official capacities, might have a lesser expectation of privacy as compared to a citizen who is not in a position of state authority, and that Cirio’s freedom of artistic expression and intention to use Capture as a form of political commentary might outweigh the individual police officers’ right to privacy.

Capture and the Right to One’s Image

In Québec and other Canadian provinces, the right to one’s image is included in the right to respect for one’s privacy. It includes the ability to control the use that is made of one’s image. Violation of a person’s right to their image may arise if, for example, it is published without consent and enables the person to be identified. The scope of protection is typically greater in Quebec, as compared to other provinces, where the right to one’s image is enshrined in the Quebec Charter, and protection is afforded to any and all individuals, not just celebrities or persons of notoriety.

Statutory protection of one’s image is also available in certain common law provinces, although provided for in regular statutes, not quasi-constitutional instruments. In some other provinces where no such statute exists, it would be interesting to explore the applicability of certain common law torts, for example the tort of misappropriation of personality. Misappropriation of personality typically applies to the unlawful use of a celebrity’s image or likeness, although, in recent years, signs point to a broadening of protection to include non-celebrities. Even though the bar is relatively low to be considered a “celebrity” in an image rights dispute, it is nonetheless interesting to look at how Capture fits into this context. For example, the police officers whose faces were included in the artwork are unlikely to be considered “celebrities.” But, as representatives of the State, might they have a claim to some kind of notoriety status? As well, a claim for “intrusion upon seclusion” would likely spark an interesting debate, since the photographs of the police officers were allegedly taken from their social media profiles and could therefore hardly be considered private.

As discussed above, whatever the basis for an image rights claim, it will always be balanced against other fundamental rights or public policy interests, such as freedom of expression (including artistic expression) and the public’s right to information. Again, these are two relevant considerations with respect to Capture.

Capture and Copyright

The fact that the photographs were allegedly taken from social media profiles also raises the question of copyright ownership, exceptions and licensing. Too often, it is assumed that a photo, an image, or a work of art that is found online, for example on a publicly accessible website, is for anyone to use, for free and without restrictions or limitations. This assumption is misguided at best, and often wrong in practice. Copyright gives the author or other rightsholder the exclusive right to, among other things, reproduce, publish, and communicate the work to the public. It may thus be necessary to obtain the copyright owner’s consent and/or an assignment or licence to disseminate the work.

In the case of Capture, it has been well-publicized that Cirio did not obtain such prior consent, or at least, that he believes the images to be in the public domain. However, some or all of the photographs may arguably be covered by copyright. For example, if any of the images were taken by a photographer (whether professional or amateur) and found on a newspaper’s website, copyright likely vests in both the photographer and/or the newspaper. Alternatively, if the images were downloaded from a social media website, such images may also be covered by copyright. Social media sites, however, typically provide permissive terms and conditions such that images that are uploaded to those sites are covered by a non-exclusive, transferable, worldwide license for distribution within the social media platform in question. As such, if one were to download an image from a social media site and redistribute it elsewhere, a license would need to be obtained prior to such use.

There are, however, a certain number of exceptions to copyright infringement, and if the use of the copyrighted work falls within one or more of these exceptions, an otherwise unauthorized use may be considered “fair dealing.” Such use would therefore be considered a defense to copyright infringement. However, unlike other jurisdictions such as the United States, in Canada, for dealing to be considered “fair,” it must necessarily fall under one of the statutory exceptions provided for in the Copyright Act. It is worth noting, though, that no exception exists for artistic expression per se. Consequently, artworks may come within the scope of fair dealing on account of such exceptions as research, satire, parody, or criticism.

It is also worth mentioning that, in Canada (as in France), an author has moral rights in their work. These include the right to the integrity of the work, and they allow the author to preserve its intended meaning. Assuming that the police officers’ photographs were not taken with the initial aim of being subsequently included in such an artwork, and the author of a given photograph took issue with its inclusion in Capture, a moral rights claim could be considered.

Capture in an Era of Automated Decision-Making

In Canada and Quebec, algorithmic (or automated) decision-making, as it relates to the treatment of personal information, is not currently subject to a particular legislative framework. However, that will soon change at the provincial and federal level. Bill-64 in Quebec and Bill C-11 at the federal level will modernize privacy legislation, namely to introduce the concept of algorithmic transparency. Indeed, the introduction of automated decision-making concerns in privacy legislation is a relatively new development introduced by Europe’s General data Protection Regulation.

Automated decision-making refers to an automated process, that may or may not rely on an artificial intelligence system and that processes personal information so as to generate predictable, quantifiable results (for example, an online loan application or a telemedicine app’s triage questionnaire). If Bill-64 and Bill C-11 pass in their current state, they will introduce legal obligations for a business to inform individuals when they use their personal information to render a decision based exclusively on an automated process.

Such legislation will also allow individuals to request from a business that they be informed about which personal information was used to render the automated decision and what were the  principal factors and parameters that led to that decision. However, given that AI systems typically rely on complex algorithms and, as a result, lack explainability, such requirements might be rather illusory. A work like Capture indeed captures the incongruity behind such measures, by showing how quick and easy it is to build a database that relies on algorithmic facial recognition tools.

Conclusion

Paolo Cirio’s work, and Capture specifically, builds on previous art forms and practices where art, technology, and the law collide. One need only look to the many appropriation artists who have been sued over the years for copyright infringement to see that the art world is not exempt from legal scrutiny. Here, Cirio’s work certainly raises important issues. In interacting with his work, we are left to wonder: How far can an artist go in their artistic and political commentary? When an individual’s fundamental rights are at stake, has the artist gone too far? Or, in his attempt to denounce law enforcement’s use of AI to police individuals, has he not gone far enough?

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