Public consultation on regulating generative AI in artistic employment relationships

At a glance

• The Ministry of Work has launched a public consultation on a proposed organic law regulating the use of generative AI in the special employment relationship applicable to artists and related technical or support personnel.
• The initiative follows a recommendation from the Council of State that rules governing the use of artists' image, voice and personal data through generative AI should be enacted through an organic law because of their impact on fundamental rights, particularly privacy and data protection.
• The proposal aims to establish strict conditions for the creation of AI-generated replicas and other recognisable content based on artists, generally requiring consent, contractual limitations and, in certain cases, separate remuneration.
• Collective bargaining is expected to play a central role in defining safeguards, communication requirements, permitted uses of AI and remuneration arrangements.

The Ministry of Work has opened a public consultation on a future organic law that would regulate the use of generative AI in the context of Spain's special employment regime for artists working in the performing arts, audiovisual and music sectors, as well as technical and support workers whose activities are necessary for those productions.

The proposal stems from reforms introduced few weeks ago to modernise the legal framework governing artistic work. While the recently adopted Royal Decree updated the special employment relationship for artists, provisions dealing with generative AI were ultimately removed during the legislative process after the Council of State advised that the subject should instead be addressed through an organic law because of its potential impact on fundamental rights protected under Article 18 of the Spanish Constitution, including privacy and personal data protection.

The consultation identifies a growing need for legal certainty regarding the creation and use of AI-generated content based on an artist's image, voice, or artistic performance. The government considers that existing legislation does not sufficiently address how generative AI should be used within artistic employment relationships, particularly where AI systems can create digital replicas or other recognisable content derived from a worker's personal characteristics or creative output. The proposed legislation seeks to balance two objectives: it aims to protect artists and other workers from misuse of their image, voice, and personal data, and, on the other hand, it seeks to allow businesses to benefit from technological innovation and legitimate use of generative AI tools.

The use of generative AI would generally be limited to purposes connected with the execution of the employment contract and restricted to the specific work or production for which the contract was concluded. Where digital replicas or new recognisable AI-generated content are expressly permitted, additional safeguards would be established to protect workers and provide legal certainty.

Outside the situations specifically authorised by the legislation, the use of an artist's image, voice, or the results of their artistic activity through generative AI systems would only be possible where there is explicit agreement and separate remuneration beyond that provided under the applicable collective agreement or, where relevant, the employment contract. This indicates an intention to treat certain AI-related uses as distinct exploitations requiring additional consent and compensation. Sector based bargaining agreements would be responsible for determining how workers are informed about the use of their personal data in generative AI systems, negotiating additional safeguards, identifying permitted uses of AI technologies and establishing rules concerning communication, implementation, and remuneration.