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  • Writer's pictureEsther Bae

Should Copyright Law Protect the “Useful Arts” Created by AI?

The relationship between copyright law and new technologies is a long-debated issue. The Statute of Anne was the first copyright law to take place in England in 1710. The United States adapted the legislation and implemented the Copyright Act of 1790. One of the biggest changes since the implementation was the Berne Convention in 1886. It was meant to provide mutual recognition of copyright law and to generate international norms for copyright protection. Since then, radio appeared in the 1920s, cable television emerged in the 1960s, cassette recorders came out in the 1970s, and digital downloading began to grow in popularity in the 2000s. The question of whether copyright law has efficiently reflected the new technologies is still in progress and will be a more problematic subject.

A couple of years ago a lot of people were shocked by the news that AI had defeated the world’s best Go player in a Go match. Go is a strategy board game that requires great scope in strategy and has been an impossible challenge to computer programmers before now. However, it was official that an artificial-intelligence program had reached a human level of intelligence or probably even more. The current music industry is, of course, not an AI-free field. Last year Taryn Southern released an album that consisted of songs composed by AI. It was the very first music album composed and produced entirely by AI.

The emergence of AI in the music industry actually goes back to the 90s. David Bowie contributed to the development of an app that creates song lyrics by using literary materials. In 2016, Sony released Flow Machines, an AI program that is capable of writing pop songs. It can even imitate a specific artist’s style based on the user’s request.

It is not surprising news that the music we hear today is created by exploiting computers. Today’s music is mostly digitally generated using computer software, but this still implies that humans perform most of the creative process and utilize computer programs to put songs together. In other words, computers are merely a tool to help the creative process. However, if a computer does most of the legwork such as writing chords and melodies, will it still be considered an “original expression”? If it is, will this work be protected by copyright law?

The Constitution of the United States concludes, “Congress shall have the power... to promote the process of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Does this include AI as “authors and inventors” that create “useful arts?” Some countries like Spain and Germany have specifically stated that works should be created by a human in order to be protected by copyright law. Many argue that works created by computers should not be under copyright protection and should be freely used, while others argue that the person behind the computer, who operates the computer or sets the parameter settings, should be the owner. I argue that it does not properly serve the copyright protection either way.

The former might work when AI-generated music stays a rare case in the music industry. However, technology will continue to advance, and it is more likely that AI will be a widely used machine. Let us think further about the possibilities. What if music generated by AI gains wide popularity and generates hits? What if those top songs on the iTunes chart are all generated by computers and no one is making money or is in charge of them? Some might argue that it is perfectly fine as long as it expands people’s opportunities to consume entertainment. But considering the impact on human music creators and the sustainability of the creative world, I find it difficult to agree with. I believe copyright law exists in order to promote creative artwork done by artists and to encourage and reward their efforts and talents, which consequently enriches our lives with enjoyment.

It is also not an easy case with the latter. Can a person who simply operates a machine be stated as the owner of an original expression? Due to AI’s advanced skills, there is no need for human intervention in the process of writing music. In spite of the fact that the person does not contribute to creating the original expression in any way, the ownership does not seem to be appropriate. Furthermore, if a machine operator is claimed to be a copyright owner, I worry that there may no longer be “artists” in the future. The big corporations that build AI will aim for copyright protection, and music creators will lose their place once again. This also contradicts my belief that the existence of copyright law is meant to encourage creative artwork.

I argue that it is crucial to measure how much intervention a person performs in the process of making an original expression. Whether the person simply presses a button to operate a machine or at least chooses instruments or tempo will be the key factor in determining ownership. I also claim that we have to evaluate whether the intervention is creative in addition to the degree of the intervention. The person’s creative thought had to be infused in making the artwork. Simply operating a machine cannot be considered a creative part of the work process.

I understand the current copyright law receives criticism for being too complicated, and this might add to the complexity. However, we live in a world where we face entirely new technology every day. The music industry changes every day, and every year we see a significant difference in the number of record sales and digital downloads due to advancements in technology and people’s reactions to it. It would be faulty if copyright law was simple and straightforward. Lawmakers had better move faster and prepare for the upcoming trends.



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