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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