Junghi Woo is a former IPilogue Content Manager, an IP Innovation Clinic Fellow and a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s Directed Reading: IP Innovation Program course.
In 2020, a South Korean television and radio network, Munhwa Broadcasting Corporation, released a documentary that revealed one family’s journey in recreating their 7-year-old deceased daughter, Na-Yeon, through the technology of virtual reality (“VR”). VIVE Studios, a VR technology studio, used the child’s voice, facial expressions, movement and appearance from past pictures and videos and the physical features of other similarly aged and shaped children to create this VR character.
While this technology may not be as common in Canada, we should nonetheless consider the implications of introducing such innovations, especially when it involves minors. In fact, there exist several legal implications within Intellectual Property law (“IP”), such as the common law principle of personality rights. A personality right is a proprietary right to recreate one’s self-identity using a person’s name, likeness, image and personality. In the case of Na-Yeon, her personality rights were used to recreate her VR persona.
In Ontario, there exists a lack of legislation regarding the protection of both non-celebrity minors’ and adults’ personality rights. This presents a concern with the growing posthumous market and the commercialization of personality rights and potentially, of individuals’ digital assets used to “revive” the dead.
Such technology is not novel. For example, engineer Eugenia Kuyda “recreated” her deceased friend Roman Mazurenko through his past text messages with his friends and family members. By using artificial neural networks, Eugenia created a chatbot that imitated Mazurenko’s texting responses to his friends and family. The result was fairly accurate and allegedly helped Mazureko’s loved ones’ grieving process. Companies such as Google already have a patent that could create a digital clone that embodies people’s “mental attributes”. UneeQ, a New Zealand-based software company, markets “digital humans” for enhanced online customer service.
With Kanye West’s gift to his ex-wife Kim Kardashian of a holographic recreation of her deceased father, and a recent boom in the “digital afterlife” industry derived from the pandemic, the posthumous artificial intelligence market is not too far from our futures. Firms such as Eterni.me and Replica offer online chat bots based on one’s digital footprint to keep the bereaved to “stay in touch” with the deceased.
Along with significant privacy concerns regarding the collection and use of individuals’ digital assets, the commercialization of such IP brings us additional questions regarding the safety of its target market. Mainly targeting grieving people, it is questionable as to whether companies will avoid exploiting the vulnerability of their emotional states and if they are able to deliver their services and products without risking their customers’ mental health. Those who grieve may seek to reconnect with the deceased and companies can monetize this vulnerability not only through their products, but their targeted advertisements. The possibility of the bereaved becoming attached to these recreations is another danger to consider. Without proactive legislation, we leave not only the deceased unprotected but the bereaved as well.
The real question is, what would you risk to see your lost one once more?