In ancient Greek legend, the Ship of Theseus Paradox posed a deceptively simple question: If you replace every plank of a ship, one by one, until none of the original planks remain, is it still the same ship? The classical thought experiment about the ship’s identity has gained notable relevance in our contemporary digital landscape, where our personas can be fragmented, replicated, and manipulated with unsettling ease. In light of artificial intelligence’s growing propensity to mimic human characteristics, this dilemma provides a need to enquire into the ethical and metaphysical consequences of personality rights.
Challenges presented by deepfake technology and AI-generated material are contemporary analogues of the ontological question at the core of the paradox — what constitutes the persistent identity of an object through change. This digital reconstruction of identity takes on additional complexity when we consider the nature of the planks themselves. In the original paradox, each plank was a discrete, tangible object. But what are the fundamental units of personal identity? Is it possible to isolate and replace individual elements of what makes someone who they are?
The creators of AI voice models would have us believe so, reducing the ineffable quality of human expression to a series of data points that can be swapped out and reconstructed at will. Today's AI systems also promise to maintain perfect fidelity to the original, never missing a plank. But in doing so, they raise a disturbing possibility: that the digital copy might be more "authentic" than the original, having been optimized to perform its role. The implications go far beyond the realm of individual identity, digging into the very core of what it means to be authentic.
To comprehend the ramifications, we must first scrutinise the metaphysical presuppositions that underpin contemporary legal systems. The advancement of scientific research frequently compels legislative authorities to establish relevant laws. Nonetheless, it is not always practical for the legal framework to respond to the swift progress in scientific knowledge and technology. The problem is widespread throughout multiple jurisdictions.
The US state of Tennessee enacted the Ensuring Likeness Voice and Image Security Act (ELVIS Act) earlier this year to respond to the present dilemma. This legislation serves to amend and supersede the Personality Rights Protection Act of 1984 and provides a compelling framework that ensures individuals holding rights to a song possess the ability to initiate civil action against those who infringe upon those rights, apart from serving as an homage to Elvis Presley. This right to legal remedy is equally accessible to record labels, which may pursue legal action on behalf of the artist, or the artist themselves, who may choose to assert their rights independently through legal channels.
The ELVIS Act, which seeks to safeguard individuals' "voice, image, and likeness" in Tennessee, also alludes to age-old human concerns about who we are as a species. The approach of treating voice and likeness as separate entities that can be owned and regulated may hold legal validity; however, it falls short on a human level. It may be necessary to reframe the understanding of personality rights, shifting the focus from the protection of individual components of identity to the preservation of the personhood which reaches beyond a single factor.
Ultimately, the distinctiveness of Theseus’s ship resided not in the individual wooden planks, but rather in the overarching design that integrated them into a cohesive entity. Similarly, the intrinsic value of an individual's identity extends beyond mere vocal or visual representation; it encompasses the intangible essence that elevates these components from simple data points to genuine human expression.
India lacks a specific statute analogous to that of the ELVIS Act. However, it does provide for the enforcement of ‘moral rights’ as delineated in section 57 of the Copyright Act of 1957, which encompasses the right to attribution and the right against mutilation of the work of the artist. Though this provision has been present in the statute book for long, it has often been left to gather dust in the shelves of copyright laws. It is important to note that the US copyright law lacks a framework for moral rights barring few areas. In a recent ruling, the Delhi High Court even affirmed that actor Anil Kapoor possesses rights over his persona, including his vocal attributes, which cannot be exploited for commercial gain without his explicit consent.
Although India has not enacted a specific law to address this situation, it is worth considering whether the existing legal provisions can adequately manage the issue at hand. The moral rights framework in India, which borrows heavily from that of France, implies a tacit acknowledgement of what is referred to in philosophical discourse as haecceity — the characteristic of "thisness" that distinguishes an individual entity as uniquely itself. On the other hand, now that artificial intelligence can copy not only individual traits but also whole behavioural patterns, it becomes harder and harder to split the difference between these things. So, the task for legislators and judiciary bodies is to develop an understanding of personality rights that recognises both the substitutability of human identity and the enduring essence that defines our being.
In this context, Martin Heidegger’s notion of "standing-reserve" provides an interesting perspective. Heidegger cautioned against the propensity of technology to itemize everything, including human characteristics, into resources that are primed for optimisation and utilisation. The ongoing commodification of personality through AI appears to validate his apprehensions. The ramifications extend beyond inquiry into human identity, probing the fundamental nature of authenticity.
This leads us to the fundamental dichotomy described by Gilbert Ryle, specifically the difference between "knowing-how" and "knowing-that". Conventional approaches to personality rights primarily emphasise the safeguarding of distinct characteristics (knowing-that). It may be crucial to consider the safeguarding of the process of personality development and expression (knowing-how). The Delhi High Court's verdict, which affirms the actor's ownership of his personality rights, implicitly acknowledges this distinction yet encounters challenges in articulating it within the confines of current legal frameworks.
The right to personality in the digital age, thus, becomes not just about protecting individual planks of identity but about preserving the power to steer one's own ship, regardless of how many times its parts have been replaced.
(Saai Sudharsan Sathiyamoorthy is an Advocate at the Madras High Court & Sundar Athreya H. is an Asst. Professor, School of Law, KIIT.)
