Artificial intelligence (intelligence exhibited by machines; "AI") continues to experience rapid growth, evident from last year's record levels of investment in the industry. AI has also already taken centre stage this year by dominating the Consumer Electronics Show ("CES") in Las Vegas, where it has been featured in everything from driverless cars to electronic toothbrushes. The excitement associated with the increasing ubiquity of AI may have, however, overshadowed some of the challenges associated with this technology. Reports, including one from the US government, have outlined how artificial intelligence will disrupt the labour markets and cause deep structural changes in the economy. From a legal and regulatory perspective, a number of issues arise, including attribution of liability, ownership of algorithm-generated works and agreeing on a working definition of AI.
In the entertainment sector, AI deployed in smart home speakers and interfaces, such as Amazon Echo, Google Home and DingDong, is already transforming the home entertainment experience by helping users choose songs and content. As AI technology gets smarter, it will further revolutionise music recommendation processes with increasingly personalised playlists and algorithmic discovery re-shaping consumption patterns. By selecting your next track, AI software can effectively dictate which artists go from 100 to 100,000 fans and which may never get a claim to fame. This in turn already shapes labels' revenues and their respective market shares.
Machine-learning based technology is being used to drive fan engagement via music-focused chatbots. It assists in discovery by enhancing streaming services' cataloguing capabilities, helps in generating background tracks for presentations and supports talent-spotting by trawling heaps of data to identify up-and-coming online artists. The music industry is also slowly embracing algorithm-generated compositions, a case in point being Sony's Flow Machines project, which has successfully created two entire pop songs. Sony's full AI-written pop album is expected to be released later on this year.
Some believe that further deployment of AI technology will render the costs of producing background music for online videos, games, apps and public spaces close to nil. Will the adoption of cost-effective AI composers displace human input? Such an argument conceals the fact that music is almost as much about personality and the backstory as it is about the end product. Nonetheless, the technology will prove invaluable as it aids the creative processes and enables human composers to experiment with new ideas more quickly. Currently, human input is still required to set the parameters, prompt the style or polish the machine's final product. However, as technology advances, it is conceivable that computers, once switched on, could go on forever creating their 'own' music.
As a transformative technology, AI is challenging a number of legal assumptions. As AI technology matures and conquers the musical mainstream, assumptions underpinning current copyright regimes will come under strain. In the UK, computer-generated works can enjoy copyright protection. In those situations, the author is taken to be the "person by whom the arrangements are necessary for the creation of the work are undertaken". Among lawyers, there is consensus that for computer-generated works, it is the programmer who devises the rules and logic used to create such works that owns the copyright. That said, cases considering this subject matter are scarce and outdated. Such a proposition also has the potential to obscure the nature and process by which such works are created. Arguably, a fully autonomous artificially intelligent device will create music without human input and could, in theory, be the true 'author' of creative works as a matter of fact.
Equally interesting is the question of liability (i.e. how can people be held legally liable for increasingly autonomous agents), as fully autonomous systems could be unpredictable. While AI creators could be held strictly liable, they may not necessarily have foresight of the actions that these systems may take. Depending on the functionalities, it may be that the burden of liability could be shifted to the end-user that deployed the AI in a way that wreaked havoc. One thing is certain, in an age of increasingly powerful AI, the chain of causation may be difficult to follow. Neither the user nor the creator may have complete oversight of the machine's actions. For the music industry, this means that adoption of algorithm-generated music may give rise to a number of copyright infringement cases. Conceivably, AI software, unaware of copyright laws, may (without its creator's knowledge) reproduce protected works.
Existing legislative landscapes were not designed with AI in mind and while the law captures AI at a high level, legislative coverage is not ideal. Dearth of precedent means that any deals involving AI technology will require attentive drafting which considers all stakeholders, including the programmers, original creators (from whom the AI draws its inspiration), intended content owners and any end-users. In any agreement governing the use of AI-generated music, provisions on ownership, licensing, assignment of rights and warranties regarding non-infringement of third party rights should be drafted carefully. The age of real robot artists may not be so far away.
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