The authorless song: Artificial intelligence and Australia's copyright law regime

By Richard Hoad and Sarah Martine
14 May 2020
In an increasingly digital world which is relying more and more on AI, there is a strong case to say that reform is needed to bridge the gap that has emerged in the protection of AI created works.

While Eurovision may be cancelled this year due to the threat posed by COVID-19, artificial intelligence (AI) programs have been keeping busy creating Eurovision inspired pop songs. It is all part of a competition called the "AI Song Contest" which has received entries from various European countries and also from Australia. The Australian team used AI to create a song called "Beautiful the World". They “taught” a computer what pop music was by feeding it songs from earlier Eurovision Song Contests, along with lyrics from various songs. To give it a bit of Australian flavour, they then added some audio of koalas, kookaburras and Tasmanian devils. The result was a catchy pop song, all created by a computer (though humans did intervene to arrange the lyrics in a more logical way) [UPDATE 18/05: and won – congratulations!]. However, works such as this which are created by AI highlight a current gap in Australia's copyright law regime.

AI created works and copyright

Copyright protects original literary, artistic, dramatic and musical works, and other subject matter such as films and sound recordings. This article focuses on the copyright position regarding AI generated literary, artistic, dramatic and musical works.

There are two threshold requirements in order for copyright to subsist in a work under Australian law – it must be original and it must originate from an author. Australian courts have made it clear that it is necessary to have a human author. In IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458, the High Court emphasised that, for a work to be protected by copyright, it must be the product of independent human intellectual effort. In Telstra Corp Ltd v Phone Directories Co Pty Ltd [2010] FCAFC 149, the Full Federal Court reiterated that a work is only protected by copyright if it originates from a human author and also held that the human intellectual effort must be directed to the creation of the material form of the work (rather than some antecedent activity).

This means that a song created purely by AI is not afforded protection under Australian copyright law. However, if a computer merely acts as a tool in the creation of a work, the song will be protected by copyright (assuming it also meets the originality threshold) because authorship would be attributed to the human using the computer to create the song.

The position is not always so black and white, however. If we return to "Beautiful the World", the Australian entry into the AI Song Contest, humans did (as we understand it) intervene to some degree to ensure that the lyrics were presented in a logical way. There may therefore be an argument that at least the lyrics are protected by copyright under Australian law. In other cases, AI might create a rough cut of the music and lyrics, which is then crafted by human intervention – in which case copyright might well subsist in the final result (although this will depend on the degree of human intervention).

Obviously, these principles do not only apply to songs. To take another field of artistic endeavour, AI might create a rough-hewn sculpture, which is then carefully chiselled and polished by a human sculptor. Or AI might generate a first cut of a literary work (such as a newspaper article which is then edited, to a greater or lesser degree, by a human author). Indeed, AI has been used by some publishers to write short news reports for several years – the concept is known as “automated journalism”.

The Copyright Act does not provide any real guidance for a Court confronting these issues. In every case, the Court would need to assess whether the degree of intervention by a human author was sufficient to confer originality (in both senses of the concept mentioned earlier).

What about copyright infringement?

Interesting issues also arise in the context of copyright infringement. A song created by AI based on earlier songs which are protected by copyright may infringe the copyright in those earlier works, depending on the way in which the song was created by the AI and whether a "substantial part" of the lyrics and music of other songs were taken.

At one extreme, if a computer merely used the songs it was fed as inspiration to "learn" how songs work and then created a new and original song, then it would be unlikely that the new song infringed the copyright in the earlier songs. The AI would be functioning in exactly the same way any human composer would work. On the other hand, if the AI took and then reproduced various lyrics and music from other songs, the song may infringe the rights of other copyright owners – again, much like sampling by human composer.

Establishing copyright infringement in the context of computer-generated works is likely to create some difficulties. First, there may be issues of proof. A copyright owner may need access to the algorithm that was fed into the computer to determine whether there has been infringement of its copyright.

More fundamentally, however, there is the question of who has infringed copyright. If the human intervention is not sufficient to confer copyright protection, does it follow that there is no one who could be sued for infringement? Or could the copyright owner still sue the individuals who programmed the AI? The copyright infringement provisions in the Copyright Act refer to infringement by a person. So, quite apart from the fact that a computer would have no assets to satisfy a judgment debt, suing the AI is not an option!

A possible area for law reform?

In the United Kingdom, there is a specific category of copyright works called "computer-generated works". The author is deemed to be the person who undertakes the arrangements necessary for the creation of the work. While this raises questions as to who is the person who made the necessary arrangements, it creates the possibility of copyright protection for AI generated works.

There has been limited judicial consideration of this category of works in the UK, but it may be that a team which enters a song in the AI Song Contest will be an author for the purposes of copyright under UK law. The team may have made the arrangements necessary for the creation of the work by "teaching" the computer how to generate a song (although this will depend on the exact steps that were taken).

New Zealand also has similar provisions in its Copyright Act which states that an author of a literary, dramatic, musical or artistic work that is computer-generated is the person by whom the arrangements necessary for the creation of the work are undertaken.

While there have been many pushes for legislative reform in Australia over the past 25 years or so, including recommendations to adopt a UK style approach, the position in Australia remains unchanged. In an increasingly digital world which is relying more and more on AI, there is a strong case to say that reform is needed to bridge the gap that has emerged in the protection of AI created works. Whether or not Australia takes a leap forward and implements legislative changes in this area remains to be seen. Unfortunately, for now, AI created works are in search of an author.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.