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Blurred lines of A.I. require musical clarity (3/3)

…continued from part 2

One of the latest innovations in AI technology is deepfake vocal synthesisers which make a singer’s voice sound like a famous artist, or even tools which create a wholly synthetic voice as can be gauged from the example of the “new” song purportedly credited to Drake and The Weeknd, “Heart On My Sleeve”.

It appears unlikely that under current Copyright law, a manner or style of singing is protectable by copyright, whether generated through an AI synthesiser or through vocal imitation. Whilst there has been an expansion of the subject matter of copyright protection at the European Union (EU) level, the principle behind it is that one must be able to identify, clearly and precisely, the subject matter to be protected. However, it really is difficult to imagine how a sound-alike voice/style of singing could attract protection in this way. In any event, under Indian law, it is not clear which of the fixed categories of copyright ‘works’ would protect a voice. In fact, there is no reference to words like “singing”, “voice”, or “vocals”, although Section 2(qq) does make reference to “performer includes…singer…”.

Further, the existence and scope of personality rights varies between international jurisdictions, so attempts to assert personality rights may also have varying degrees of success in AI. In fact, in a matter before the Supreme Court in July regarding a Bollywood actor who had passed away, the Honourable Court ruled that “the rights ventilated in the plaint, that is, the right to privacy, the right to publicity, and the personality rights which vested in Sushant Singh Rajput, were not heritable. They died with his death”.

Meanwhile, in returning to the sounds of music, if an AI tool copied specific melodies or lyrics without seeking consent of the creator, that would certainly constitute copyright infringement. However, it may be difficult to identify such specific examples of copying with well-built AI tools generally designed to copy the general sound and feel of music, in part to avoid the very allegations of copyright infringement. But, once again, in referencing the song purportedly by Drake and The Weeknd, “Heart On My Sleeve”, the matter was never tested in law as the digital platforms, perhaps threatened at being sued for copyright infringement, even as an intermediary, decided to take down the song.

As part of this discussion, does it really matter whether AI music can be protected by copyright? The general answer from both AI companies and AI content creators appears to be a comprehensive “yes”. Many AI developers want their investment in the creative industries to be recognised by way of copyright protection and, in case of stake holders within the media and entertainment industry, there is a concern that copyright protection for AI-generated music could undercut catalogues/libraries built through decades and, at the same time, undermine human creativity.

AI-generated music could well result in an effectively unlimited supply of music in an industry which the major labels see as already over-saturated with the proliferation of so-called “fake artists” and “functional music” on streaming services. Given licensing costs and the complex royalty flows in the music industry, it may even be that AI-generated music, in case it does not attract copyright protection, is in a position to further  undercut human-made copyrighted music, keeping in mind that nearly a quarter – 24%, or about 38 million tracks – of the total tracks uploaded on a daily basis received no plays at all.

There is very little research on the legal, economic, or ethical consequences of AI-generated music in the media and entertainment industry so far, but there is no argument whatsoever that its rise has been dramatic.

Indian copyright law needs to keep up with these developments. However, to do this, it needs to somehow satisfy the conflicting concerns of AI users and the interests of musicians and existing rights holders.

Who owns the output of generative AI? For now, it is only a human work that can be copyrighted, but what about work that only partly relies on generative AI? It is only a matter of time that a thoughtful and robust statutory amendment of the Copyright Act will address changing technologies, including AI.

On the other hand, AI-advocates argue that the AI content usage falls within copyright law’s “fair dealing” exception, as referred to in Section 52 of the Copyright Act, claiming that the resulting work is transformative, does not create substantially similar works, and has no material impact on the original work’s market. They contend that the data has been sufficiently transformed by the AI process to yield musical works beyond the copyright protection of the original works.

Nevertheless, we need to first consider the Copyright Office stance on whether AI can be considered as an author. The second aspect that would be valuable is a consensus among the courts, whenever tested, whether usage of content by AI falls under “fair dealing”. Third, AI-generated works that are in the style of someone else, can they be considered as derivative work?

Basis the aforesaid, the grant of copyright registration in the name of AI really does not seem a practical and plausible step as yet. Nevertheless, a solid and comprehensive reform needs to be made in copyright law before matters arise wherein AI users/creators claim copyright ownership. Such amendments in the copyright law must cover all aspects, leaving no loophole whatsoever for existing copyright owners to have their rights infringed or compromised.

The next big debate may well be whether computers themselves should be provided the status and rights of a person but, that again, is the beginning of yet another story…

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