CBC
Wed, December 27, 2023
Toronto-based actor, casting director and producer Rebecca Lamarche says new regulations around artificial intelligence and streaming in the U.S. don't go far enough to protect performers. (Cameron Bartlett - image credit)
As a Toronto-based actor, Rebecca Lamarche's image is crucial to her success and it's her job to ensure no one exploits it for personal gain — at least for the time being.
That's because Canadian performers currently have no protections around the use of artificial intelligence (AI) to replicate their likeness.
"Any kind of art and medium is being adapted now with artificial intelligence," said Lamarche, who is also a casting director and producer.
"It's here, it's coming. But it is definitely changing the game and it's changing the world as we know it."
In May, members of the Screen Actors Guild–American Federation of Television and Radio Artists (SAG-AFTRA) went on the longest actors' strike in Hollywood's history with protection from the use of AI among the sticking points.
Union members voted Dec. 6 toratify the three-year contract with studios. According to the deal, AI reproductions of actors can now only be used with their informed consent and compensation.
The union representing 28,000 Canadian actors says work is underway to bring those same protections — and then some — to Canada.
"Bargaining starts the day the last bargaining finishes," said Alistair Hepburn, executive director of the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) Toronto.
ACTRA says AI protections are priority
Negotiations for ACTRA's Independent Production Agreement (IPA) could begin as early as next summer. They must be wrapped up by Dec. 31, 2024.
AI is set to top the agenda, along with compensation for actors for streaming shows.
The negotiation will "take some time," said Hepburn.
"There are going to be some expectations and some requirements that we're going to need to see in order to ensure that we have equal, if not better, protections than the performers in the U.S."
SAG-AFTRA President Fran Drescher hugs a member of the TV/Theatrical Negotiating Committee member on Nov. 10. Less than a month later, Hollywood's actors voted to ratify the deal with studios, bringing an official end to the labour strike that shook the entertainment industry for months in 2023.
(Richard Vogel/The Associated Press)
ACTRA Toronto is trying to get a better sense of how concerned its actors are by the use of AI.
Hepburn says a recent survey garnered one of the best response rates in the union's history, with 98 per cent of respondents saying they are concerned about the potential misuse of their name, image and likeness.
"I think performers realize just what [AI] means to them and what the potential new guardrails are going to need to be for them to feel comfortable to continue to do the work and know that there's longevity in their career," Hepburn said.
To make matters more complex, ACTRA's IPA contracts last three years, which Hepburn says is a long time considering how fast technology is developing.
A University of Toronto lecturer on technology and business agrees.
Daniel Tsai is a lecturer in law and business technology at University of Toronto and Toronto Metropolitan University.
Daniel Tsai is a lecturer in law and business technology at University of Toronto and Toronto Metropolitan University. He describes AI as the 'wild west,' adding that there are limited regulations to protect performers from the rapidly-advancing technology. (James Dunne/CBC)
"There is now a mutual understanding with respect to the exploitation of an actor's likeness, voice, image and personality [in the U.S.]," said Daniel Tsai, who is also a professor at Toronto Metropolitan University's Ted Rogers School of Management.
"The issue is there's no regulatory system in place outside of that."
No regulations for non-union performers
There are many productions in both Canada and the U.S. that aren't union based, Tsai says, leaving it up to the performer or their agent to negotiate compensation with studios.
"People have been known to give away their rights without knowing better," he said.
"In the big scheme of things, there's effectively very little protection for creator rights."
Tsai says his hope is that Canadian producers will adhere to protections in the U.S. "But that's really based on good faith."
"This is an industry that created Harvey Weinstein," he said. "So it doesn't always mean it acts on good faith. That exploitation of talent is always there."
Those concerns have been echoed by many Hollywood actors, who argued the deal wasn't specific enough on AI protections.
'How is this going to be regulated?'
Questions loom about certain sections of the deal — specifically the portions requiring AI contracts to include a "reasonably specific description" of the intended use.
Lamarche fears some producers might try to find loopholes.
"They don't have strict rules," she said. "At the end of the day, how is this going to be regulated or monitored?"
While Lamarche said she's confident that some will be conscientious about rule following, not everyone will.
"People are people. There's going to be many more who are going to be looking to flip a buck and do it under the radar."
Rebecca Lamarche is the co-founder of the production company CandourPictures, which launched this fall. (Cameron Bartlett)
Lamarche hopes ACTRA's next deal with the studios expands the categories that define how performers are compensated.
"Everything's broken down: singer, choreographer, chorus," she said.
"They should have a category for scanning your body or a category for a digital replica."
Even if Canada's largest acting union can secure more rigorous protections, she's concerned this is only the start of AI issues.
"I think ultimately it is going to really minimize the amount of work there is," she said.
"Not in the next couple of years, but in the broad future."
ACTRA Toronto is trying to get a better sense of how concerned its actors are by the use of AI.
Hepburn says a recent survey garnered one of the best response rates in the union's history, with 98 per cent of respondents saying they are concerned about the potential misuse of their name, image and likeness.
"I think performers realize just what [AI] means to them and what the potential new guardrails are going to need to be for them to feel comfortable to continue to do the work and know that there's longevity in their career," Hepburn said.
To make matters more complex, ACTRA's IPA contracts last three years, which Hepburn says is a long time considering how fast technology is developing.
A University of Toronto lecturer on technology and business agrees.
Daniel Tsai is a lecturer in law and business technology at University of Toronto and Toronto Metropolitan University.
Daniel Tsai is a lecturer in law and business technology at University of Toronto and Toronto Metropolitan University. He describes AI as the 'wild west,' adding that there are limited regulations to protect performers from the rapidly-advancing technology. (James Dunne/CBC)
"There is now a mutual understanding with respect to the exploitation of an actor's likeness, voice, image and personality [in the U.S.]," said Daniel Tsai, who is also a professor at Toronto Metropolitan University's Ted Rogers School of Management.
"The issue is there's no regulatory system in place outside of that."
No regulations for non-union performers
There are many productions in both Canada and the U.S. that aren't union based, Tsai says, leaving it up to the performer or their agent to negotiate compensation with studios.
"People have been known to give away their rights without knowing better," he said.
"In the big scheme of things, there's effectively very little protection for creator rights."
Tsai says his hope is that Canadian producers will adhere to protections in the U.S. "But that's really based on good faith."
"This is an industry that created Harvey Weinstein," he said. "So it doesn't always mean it acts on good faith. That exploitation of talent is always there."
Those concerns have been echoed by many Hollywood actors, who argued the deal wasn't specific enough on AI protections.
'How is this going to be regulated?'
Questions loom about certain sections of the deal — specifically the portions requiring AI contracts to include a "reasonably specific description" of the intended use.
Lamarche fears some producers might try to find loopholes.
"They don't have strict rules," she said. "At the end of the day, how is this going to be regulated or monitored?"
While Lamarche said she's confident that some will be conscientious about rule following, not everyone will.
"People are people. There's going to be many more who are going to be looking to flip a buck and do it under the radar."
Rebecca Lamarche is the co-founder of the production company CandourPictures, which launched this fall. (Cameron Bartlett)
Lamarche hopes ACTRA's next deal with the studios expands the categories that define how performers are compensated.
"Everything's broken down: singer, choreographer, chorus," she said.
"They should have a category for scanning your body or a category for a digital replica."
Even if Canada's largest acting union can secure more rigorous protections, she's concerned this is only the start of AI issues.
"I think ultimately it is going to really minimize the amount of work there is," she said.
"Not in the next couple of years, but in the broad future."
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