Last year, Denmark introduced amendments to its Copyright Act granting copyright-like protection to individuals’ personal characteristics and digital imitations of performances. As we argued during the public consultation, while the objective of this initiative—to protect individuals and performing artists against AI-generated deepfakes—is commendable, copyright is not the appropriate legal framework to address these concerns. In February, the European Commission issued comments (that we have) echoing several of the key points we raised in our submission, while also raising additional concerns.
Protection of personal characteristics
One of the objectives of the Danish proposal is to protect individuals against the unauthorised use of their personal characteristics, such as voice, movements, and appearance, in realistic digital imitations. To achieve this purpose, the proposal grants to any natural person the exclusive right to make available digitally generated imitations of their personal characteristics.
Echoing the arguments we made in our submission, the Commission criticizes the proposal for creating a significant conceptual misalignment with the objectives of intellectual property protection. Copyright and related rights are designed to protect original creative expressions in order to support markets for creative works and incentivise further creative activity. Extending such protection to personal features does not align with this rationale.
The Commission further notes that relying on copyright concepts such as “communication to the public” or “making available to the public,” which were developed in EU copyright law in relation to works and other protected subject matter, would introduce serious inconsistencies if applied to a natural person’s characteristics such as voice, movements, or appearance. For these reasons, the Commission “invites the Danish authorities to consider using other instruments, other than copyright legislation, to reach the aimed protection of personal characteristics(…).”
In our opinion, the Danish legislator would be better advised to build upon the legal principles regarding the use of personal images that exist in the Danish jurisdiction and introduce a general personality right in order to achieve the stated objective. Personality rights protect personal autonomy, dignity and self-determination, and are therefore normatively aligned with protecting individuals against unauthorized exploitation of their identity and addressing harms arising from non-consensual digital imitations.
Protection of digital imitations of performances
The second objective of the Danish proposal is to protect performers against realistic digital imitations of their performances, by granting them the right to authorise or prohibit the making available to the public of such digital imitations. As the Commission notes, this measure raises a number of issues, starting with a definitional one: there is no definition of what would constitute an imitation of a performance.
The Danish proposal refers to an imitation “giving rise to the likelihood of confusion with an actual reproduction.” However, as the Commission points out, it remains unclear how this notion of “imitation” relates to established copyright concepts. In particular, its relationship to “fixation” is uncertain, as the Danish authorities consider that a reproduction does not necessarily require fixation. Likewise, its relationship to “reproduction” itself is ambiguous, given that the Danish authorities appear to consider that “a digital imitation of a performance constitutes a manipulated reproduction thereof.”
In addition to considering that the object of protection should be more clearly defined, “the Commission also reminds the Danish authorities that this new right should not affect the fair balance to be struck between the various fundamental rights protected by the European Union legal order.” The Danish legislator would therefore need to ensure that existing limitations and exceptions are properly applied.
Finally, extending the term of protection for such a right beyond the limits set by the Copyright Term Directive (2006/116), as the proposal currently envisages, would not be permissible. The proposal foresees protection lasting 50 years after the performer’s death, whereas EU law limits protection to 50 years after the performance. Therefore the Commission invites the Danish authorities to review the term of protection.
Implications for Article 17 of the DSM Directive and the AI Act
The Commission’s letter also raises concerns regarding the proposal’s implications for Article 17 of the Digital Single Market Directive. In its current form, the measure would effectively create a new obligation for online content-sharing service providers to filter for realistic imitations of performances, unduly broadening the scope of this provision and potentially disrupting the functioning of the internal market.
The Commission also highlights a potential clash with the labelling obligations for deepfakes established in the AI Act. As it stands, a deepfake that is labelled in accordance with Article 50(4) of the AI Act could potentially eliminate the likelihood of confusion required under the Danish proposal. In such cases, individuals or performers might not benefit from the protection granted by the amendment, which appears inconsistent with the intention of the initiative.
Next steps
The proposal is expected to enter into force on 31 March 2026. We share the concerns raised by the Commission—many of which reflect the objections we raised in our consultation response in August 2025—and urge the Danish legislator to rely instead on the personality rights framework and, where necessary, strengthen existing measures under Danish criminal law.
