Who Wrote That Song? The Implications of Artificial Intelligence on Copyright Ownership
November 5, 2019
Earlier this year, Warner Music Group signed a distribution deal with AI-generated music application, Endel. Developed by start-up accelerator Techstars Music’18, Endel produces personalized sounds to help users focus and relax, based on personal inputs such as the time of day, location, heart rate, and weather. The first-ever algorithm to sign a major label deal, Endel is expected to release twenty albums by the end of this year.
As technology continues to impact the laws relating to intellectual property, the conversation surrounding the future of copyright and AI, specifically with respect to originality and authorship, has become a prevalent topic among both the legal and creative communities.
WHAT IS ENDEL AND HOW IT WORKS
Endel creates “tailor-made custom sound frequencies” based on personal user inputs. The deal between Warner Music Group and Endel is the first of its kind in that there is “no requirement for human collaborators” in the generation of the music – the sounds are created through an algorithm. With this said, some form of human intelligence is still involved in producing the song. Aside from those needed to develop the algorithm and create the AI, the users of the application must input data into Endel in order to generate any sound. As a result, determining the creator of music produced by an AI system may not be as easily established as that of a traditional piece of music.
COPYRIGHT LAW IN CANADA
In Canada, a copyrightable work must be an independent creation produced through the use of skill and judgment. Given that this originality threshold is relatively low, a more prevalent issue with respect to copyright and AI is the question of who owns the work . Though authorship is not defined within the Copyright Act, RSC, 1985, c C-42, courts have interpreted an author to be the individual who fixes the ideas in original or novel form. The author is the one who’s labour, skill and judgment produces an original expression, and may not be the individual who simply writes or scribes the ideas into a fixed form. As per section 13(1) and 34.1(1)(b) of the Copyright Act, the author of the work is the owner unless the contrary is provided (as can be the case in instances of employment, Crown works, or various other contractual agreements). There is also the possibility of establishing joint authorship, given that both parties contributed significant original expression to the work, intended that their contributions be merged into a unitary whole, and intended the other to be a joint author of the work.
OWNERSHIP AND ARTIFICIAL INTELLIGENCE
Works generated using AI add an additional layer of complexity in determining ownership of a copyrightable work in Canada. It can be claimed that the creator of the AI may have a reasonable argument as the owner of the system’s outputs. It could also be suggested that the owner of the work could be the AI system itself. In the case of Endel, where users are inputting personal choices and data, could the users be potential owners of the music generated? When looking at the concept of ownership from an economic perspective, do the investors of Endel who helped fund and develop the AI have a valid ownership argument?
Endel dealt with the matter practically, listing the co-founders and software engineers as the songwriters of the music when registering for copyright. Essentially, with the help of an AI system, one no longer needs to know the theory behind writing a song to be a credited songwriter. Though Endel has moved forward in determining authorship and ownership of its AI-generated music, it is clear how disputes can arise given the multiple stakeholders involved in the process. This is especially true in considering the possibility of self-learning machines generating music and reducing the need for human labour, skill, and judgement all together.
ONE PIECE OF A BIGGER PICTURE
Copyright ownership and AI is just one piece of the picture when it comes to the potential legal considerations in producing AI-generated music. Concerns with respect to sampling and licensing become prevalent if AI-systems such as Endel are using portions of other sound recordings to create their music. Further, if an infringing piece of music is created using an AI-system, who would be liable? Complimentary to copyright and intellectual property considerations, concerns with respect to privacy rights can also arise in the case where personal inputs and information are required.
Though the way that copyright law will respond to AI in the music industry remains unknown, it is clear that creators and innovators are not shy in utilizing tools to enhance and differentiate their products and change the way various creative industries are traditionally understood. Fortunately for Endel, consumers have been welcoming of the change, with the AI-generated music application reaching #1 In Top Free Apps for iOS in Japan shortly after launching in November 2018. With innovators and consumers open to change, it will be interesting to see how the future for copyright and AI unfolds.
You can listen to some of Endels work (a “verified artist” on Spotify) here._________
 Note that this is a very brief overview of the foundational copyright concept of originality. There are many other factors that must be considered when determining originality, including but not limited to the idea/expression dichotomy, stock device exemptions, and various subject matter tests. Though courts have interpreted originality as a relatively low threshold in Canada, this is dependent on the facts of each case.
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