The unknown songwriter – AI music and copyright law.

03/04/24 | Reading time: 3 minutes

In an era where artificial intelligence continues to redefine the boundaries of creativity, recent developments in the music industry have brought copyright law into uncharted waters. With AI now capable of generating songs in the style of iconic musicians like John Lennon and Kurt Cobain, questions of copyright authorship and ownership are creating some big soundwaves.

Imagine turning on the radio to hear brand new tracks from The Beatles or Nirvana, created entirely by AI, decades after the original artists have passed away. The speed and precision with which AI replicates the musical styles of these iconic bands are truly impressive. In the new Nirvana ‘Drowned in the Sun’ song, the band had no involvement in its creation. Every chord, every lyric, the entire composition— was created solely by AI.

These developments raise profound questions about ownership of music never conceived, sung, or played by the original artists.

Copyright law in Australia – how choppy are the waters?

In Australia, the Copyright Act 1968 (Cth) (Act) governs the legal framework surrounding creative works, including music. While the Act does not explicitly address AI generated content, its principles provide a basis for understanding how such creations may be treated under the law.

For AI generated music to qualify for copyright protection, it must meet specific criteria:

  • Originality: Copyright protection hinges on the originality of a work, requiring a level of creativity beyond mere reproduction or imitation of existing works. IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) emphasised that substantial effort alone may not suffice; the work must demonstrate creativity comparable to human endeavour.
  • Fixation: Copyright protection applies to works that are fixed in a tangible form, such as a digital file or recording. This is established in cases like Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010), ensuring that the music can be perceived, reproduced, and shared.
  • Human authorship: Despite AI’s role in the creative process, copyright typically attributes authorship to human creators. APRA v Commercial Radio Companies Association (2012). This emphasises the significance of human creativity in music production, suggesting that human input remains essential for copyright protection.

Riding the wave

AI generated music in Australia may be eligible for copyright protection if it meets the established criteria of originality, fixation, and human authorship. However, the lack of explicit provisions addressing AI generated content in current copyright laws may pose challenges in determining the scope and extent of protection afforded to such works.

In addition, AI music presents issues extending beyond copyright law, encompassing contract law, privacy law, ethics, defamation and fraud.

Law reform in the EU – the calmer waters

The European Parliament has recently made history by approving the EU Artificial Intelligence Act. This is the world’s first comprehensive legislation on AI. This EU legislation, now awaiting formal endorsement by the EU Council, imposes legal and transparency obligations on tech companies and AI developers operating in Europe, including controls around the use of copyrighted music.

As a pioneering piece of legislation in the field of AI, the world will undoubtedly look to the EU for guidance, including in the realm of music.

One of the key provisions of this EU legislation is the requirement for companies using generative AI or foundation AI models to publish comprehensive summaries of any copyrighted works, used to train their systems. This transparency requirement applies regardless of where the data was acquired from, ensuring that AI developers operating in Europe adhere to strict copyright standards.

Will Australia make waves?

By adapting to these changes and embracing legal reforms, Australia can support intellectual property rights while encouraging innovation and creativity in AI generated music. Recent cases involving AI and this new EU legislation emphasises the need for reforms that foster a thriving and equitable environment for creators and rights holders in AI music.

By modernising its legal system, Australia can ensure comprehensive protection for AI-generated music while promoting innovation in the digital music landscape.