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The increasing use of artificial intelligence systems in the music industry raises question marks about who is the author of the songs and whether the product is copyright protected.
AI’s rapid and unstoppable development raises numerous question marks in intellectual property law. Indeed, the processes of making and developing creative works are governed by copyright law and are closely linked to technological and commercial transformations. It is not surprising that advances related to AI technologies and their use in the creative sector give rise to new development and business opportunities but also to new legal issues, especially related to the identification of the author of the work and the attribution of related rights.
One reason for this success is that AI systems offer the most diverse application possibilities, simplifying and speeding up time-consuming processes: from music composition to mastering, from song identification tools to creating highly personalized playlists. This new technology is, therefore, changing how artists create music and audiences hear music.
Applications and platforms capable of creating music online include, for example, AIVA, Endel, Xhail, Boomy, Score/Amper, Jukebox, MuseNet, ChatGPT, and, although not yet available, Google’s MusicLM. The new AI system created by Google, for example, would seem to be able to produce music of any genre from a simple textual description. Although this is not the first generative AI system for music, it is, on the other hand, the first to create “high fidelity” (HiFi) songs and melodies, i.e., high resolution (with sounds generated at 24KHz). This algorithm can also generate music with “complex composition,” having been trained with data from more than 280,000 hours of music. MusicLM can build on existing sounds, melodies, and songs regardless of how they are played, i.e., even if whistled, sung, or played on an instrument, thus potentially proving capable of replacing most soundtrack composers.
The main problem with this and other artificial intelligence systems capable of creating music lies in the fact that the data with which such systems have been trained could contain copyrighted material, resulting in copyright infringement on such musical works.
In any case, even when the music created by AI does not infringe on other copyrighted materials and is new, there is a debate about the level of protection that can be granted to such works.
As anticipated, even when discussing AI creations, it is necessary to refer to copyright law. However, a distinction must be made between (i) musical pieces obtained by artificial intelligence with human assistance and (ii) pieces generated autonomously by AI which might be the actual author of the music.
In the former case, the work implies a human creative effort, so the individual – the author – who originated such compositions will be entitled to the legal protection granted by copyright law; more critical issues emerge, however, in the latter scenario since the rules on authorship stipulate that human intervention is necessary in order to give rise to a protectable creative work.
At the national level, as well as at the EU and international level, in order to enjoy the ownership of a right, it is necessary to be in possession of legal capacity; hence the complexity of recognizing any protection in the head of “machines” like artificial intelligence systems which, although capable of creating music independently, would for obvious reasons be incapable of exercising or claiming their rights as an author, should they be granted. Moreover, in our legal system, Italian copyright law provides that the original title to the acquisition of copyright is constituted only by the creation of the work “as a particular expression of intellectual work,” and it is precisely the explicit reference to the concept of “intellectual work” that is emphasized by many to argue that the author must necessarily be a human person.
As for the content made by AI, in order to assess whether it qualifies as a “work” from the point of view of European Union law and, therefore, protectable by copyright, several studies and publications on the subject have identified – also pursuant to the case law of the Court of Justice of the European Union – a test divided into four steps and criteria. In the field of music, a song made through AI should be (i) a “production in the literary, scientific or artistic field“; (ii) the product of human intellectual effort; (iii) the result of creative choices; and (iv) an output that expresses the choices in (iii).
Therefore, it is necessary to use a case-by-case assessment to determine the author of the work and to demonstrate the presence of the level of originality and human intellectual effort required to obtain protection under copyright law. This can also be done through reverse engineering operations that manage to qualify the human interventions or contributions in the use of the AI system that led to obtaining that particular content.
Indeed, copyright protection rules may be applied to works created by AI where such technology is used to assist an author in the creative process. When human input is totally absent, or at any rate very limited, and the fruit of an intellectual effort derives exclusively from AI, it still seems that the application of copyright law should be ruled out by virtue of the well-established normative principles that identify a natural person with legal capacity as an “author.”
Although the idea of some legal protection recognized even for works created independently by AI is still a long way off, the proposed Regulation on artificial intelligence aimed at promoting the adoption of AI through common rules for all member states, the so-called AI Act, bodes well. With such a Regulation, the EU aims to fill the current regulatory gaps created by the unstoppable technological development by promoting investment and innovation in AI, improving governance and effective enforcement of existing fundamental rights and security legislation, and facilitating the development of a single market for AI applications.
On a similar topic, you can find interesting the article “EU Council adopts proposed AI Act on artificial intelligence“.
Authors: Rebecca Rossi and Carolina Battistella from DLA Piper