Can AI-Generated Music be Copyrighted?

Introduction

With the current advancements in technology, AI that is, Artificial Intelligence has gained popularity and the same has witnessed astonishing advancements in recent times. We all are now familiar with several forms of generative AI tools and the emergence of various other generative AI still continues to this day. AI has transformed our lives by entering into various sectors such as education, space, aviation, health, and the entertainment industry including music, art, etc. People thereby nowadays depend a lot on AI to complete the various tasks in their respective fields. It is now believed that AI has the potential to take away people’s jobs in the near future. However, this is still a debatable topic as AI, though a powerful tool, has its limitations to it. As helpful as AI may be for individuals, it has become an issue in the intellectual property world, especially in copyright law. AI-generated works can often be unrecognizable from human-created works, raising problems regarding their authorship and ownership. Under copyright law, the one who creates the work is ultimately the author of the specific work. However, if we take this forward in the world of AI, there would be a dilemma as to who would be the actual author of the AI-generated work thereby, becoming a challenge under the copyright law.

AI v. Human Creativity

When it comes to music copyright, the ‘author’ is the original creator of the work; for example, in the case of a songwriter, an author is the one who writes the lyrics whereas the ‘owner’ is the one who currently has the rights to the copyrighted work. With the advancements in AI, it can easily write a song and even compose for that matter within a span of a few seconds. Generative AI tools, also known as Large Language Models (LLMs) such as ChatGPT, JukeBox, MusicLM, etc. can produce poems, songs, and music that are hard to distinguish from human-authored work. This therefore creates a problem for the professionals in the music industry as it takes away their jobs and thereby restricts the human intellect to be used efficiently and produce their works.

This therefore creates a problem for the professionals in the music industry as it takes away their jobs and thereby restricts the human intellect to be used efficiently and produce their works. This undermines the fundamental purpose of copyright law, which is to foster human creativity by safeguarding their original works of expression. Anyone who understands or knows prompt engineering may easily ask AI to create a song. When asked by ChatGPT to write a song for a person, the AI tool suggested the following verse:

  “In the silence of the night, I hear the whisper of the stars, Their melodies so tender, echoing from afar. With every beat of my heart, a rhythm starts to flow, Guiding me through the darkness, where dreams and shadows grow.”

Above para is only a verse from the whole song written by the AI tool. This verse demonstrates that it is now quite easy for a person to get a brand-new song without utilizing any human intellect; all you need is some knowledge of prompt engineering and you are good to go! However, one cannot claim authorship rights over this verse. Sec. 2(d) of the Copyright Act, 1957 defines ‘author’ as a person who causes the work to be made, which includes a human or a legal person but excludes an AI system. Hence, in this case as well, we cannot say that the person who used prompt engineering to generate this song can claim authorship rights over it u/s 2(d) of the Copyright Act, and the same cannot be copyrighted. AI-generated works are therefore unable to receive copyright protection as generative AI is not an ‘author’ in the usual sense.

Naruto v. David Slater, famously known as the ‘Monkey Selfie’ case, addressed the question of whether non-humans, such as a monkey or an AI, can claim copyrights to their creation. The prime takeaway from this case was that human innovation, intervention, and participation are sine qua non for copyright protection. In early April 2023, a song called ‘Heart on My Sleeve’ created by an anonymous musician named @ghostwriter went viral on social media platforms. The track allegedly contained vocals by Drake and The Weeknd, however, the @ghostwriter behind ‘Heart on My Sleeve’ claimed in a now-deleted TikTok that they used Generative Artificial Intelligence to imitate the artists’ voices. However, Andres Guadamuz, a professor of intellectual property law at Britain’s University of Sussex believes that the song does not violate copyright as the composition was new and only the sound of the voice was familiar and thus, “you cannot copyright the sound of someone’s voice”.

Ownership and authorship of AI-generated works remain a hotly debated topic to this day. There is a conflict between the coder (the person who created the code for the AI), the AI system (that generated the work), and the user (the person who issued the command via prompt engineering) over who should get the right over the work generated. If we take sec. 2(d)(vi) of the Copyright Act, 1957, it expressly mentions that an ‘author’ means “in relation to any literary, dramatic, musical or artistic work is computer-generated, the person who causes the work to be created”. Hence, if an AI develops any content with human participation, ownership of the same would depend on who caused the creation of the work. So, if a human, such as a programmer or an artist, programmed and supervised the AI to generate the work based on their instructions or input, then, that person would be granted authorship rights and would normally own the copyright.

Amidst the ongoing debate, India granted copyright protection to AI works, only to withdraw it later. In 2021, Mr. Ankit Sahni, the owner of RAGHAV, an AI-based painting app, submitted two copyright applications for ‘Suryast’, the AI-generated artwork. The first copyright registration application was made in RAGHAV’s name, but it was straight-up rejected by the copyright registry. The other registration application was filed in Mr. Sahni’s name, with RAGHAV acting as a co-author. While the second application was registered, the Copyright Office disagreed and canceled it. The Copyright Office denied the registration due to a lack of human authorship required to support a copyright claim. The Review Board of the US Copyright Office reaffirmed this decision.

In India, the present copyright law frameworks lack mechanisms to support inventorship, authorship, and ownership of an AI. It solely protects human-produced works, hence music or songs created by AI without human intervention cannot be copyrighted under the Copyright Act of 1957. In Navigators Logistics Ltd. v. Kashif Qureshi and Ors., the issue was whether a copyright can be claimed for a computer-generated list that they claimed to be a ‘literary work’. The Hon’ble Delhi High Court observed that for a piece or a work to be a literary work, the author must be a natural person and not an artificial one, and moreover, no copyright can be claimed in the absence of usage of any skill, labor, or any human intervention and therefore, the case was dismissed.

In another case of Stephen Thaler v. Shira Perlmutter, Register of Copyrights and Director of the United States Copyright Office, et al., the Columbia District Court agreed with the Copyright Office that only human beings qualify as authors under US copyright law, and thereby the submission made by Thaler of an AI-generated work for copyright protection was rejected.

Conclusion

As human civilization advances, the country’s law attempts to keep pace. However, the conflict between AI and copyright remains a hot topic, and the country’s law should also take into account works created by Artificial Intelligence. Rapid breakthroughs and developments in technology and AI provide a huge challenge to copyright laws. The current copyright law focuses on human creativity and intellect, leaving AI-generated art in an ambiguous legal landscape. With advancements in technology and AI, it is high time for lawmakers to look into this issue and provide elaborative and comprehensive guidelines that balance the core concept of copyright law while also aligning with modern societal requirements and advances. While doing so, the employment of the people should not be jeopardized; rather, AI and human creativity should coexist together under the copyright law. Hence, the policymakers should uphold the idea of innovation and creativity, and encourage the citizens to engage their intellect to the fullest extent possible, maximizing their potential while also serving and adapting to the technological advances.

Sanjay Sethiya is the Founding Partner at Law Square, Advocates & Solicitors.

Malvika Rajeevan is a BA LLB IPR Hons. student at Alliance University, Benagluru

Note: This article was originally published in the Alliance Centre for Intellectual Property Rights (ACIPR) Bulletin.