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  • YOGITH C, P N MIDHU

ROLE OF INTELLECTUAL PROPERTY IN MUSIC COPYRIGHT-PROBLEMS, PROSPECTS AND RELATION WITH AI

Written by: YOGITH C, P N MIDHU , 3rd year BA.LLB(HONS) , JSS Law College, Autonomous, Mysuru, Karnataka 

ABSTRACT:

In this article, we have explored the world of Intellectual Property Rights(IPR) focusing on copyright especially dealing with music. The present scenario can be called as the era of technology. We can find various dimensions of technology and one such dimension regarding law which governs creation out of technology and human intellect is IPR. The concept of IPR particularly being a vast concept we have picked copyright of music. We are going to have a glimpse of various types of IPR and provide a detailed understanding of copyright and slightly shedding lights on to the difference between song and music. Our analysis extends to music copyright and the potential infringement issues that the creators may encounter. Moreover, we have elucidated the evolving relationship between music copyright and artificial intelligence, offering insights into the implications and challenges posed by Artificial Intelligence(AI) in the context of complicating musical creation. This article lets the readers know the current position of AI in our Copyright Act and provides an idea regarding the recognition of works created by AI and helps the readers to deeply understand about the concept of music copyright along with interference of AI and it’s influence in the future, the possibilities that are yet to come and the consequences that would occur out of it. We have also mentioned the emerging changes which have been taking place in technology which have affected the Copyright Act and will provide a gist about the way ahead. In summary, this study highlights the significance of music copyright, by examining the evolving legal frameworks, emerging technologies, and the impact on artists’ livelihoods. Analysing the challenges faced by artists, creators, and the industry as a whole, we aim to contribute to the ongoing conversation on protecting intellectual property rights in relation with AI.

Keywords: Intellectual Property Rights, Artificial Intelligence, Copyright Act, Industrial Property, Music

INTRODUCTION:

The very purpose and the motive of IPR was to protect the creation and the identity of such work which are in the form of property. Due to the advancement of technology, it has become much more easier for the spoofers or the content stealers to imitate or use the creation unauthorised. Thereby, causing loss to the author and the owner. IPR protection pushes the creator or artists to invest time, resources and bring in new development as it acts as a guarantee to them to keep them away from threats of different kinds of infringement. Thereby, commercialising his creation would lead to a source of income.It is necessary to strike a balance between protecting the IP rights and promoting innovative ideas, but this however may be a complex process. While making stringent laws, there maybe a hindrance to creativity and flow of knowledge wherein, while making laws that are lethargic there is weak IP protection and it may lead to piracy, plagiarism and other problems such as counterfeiting and lack of apt research.The presence of AI is being witnessed by most of us in our day-to-day life. The investment in IT sector has been an offshoot for advancement in technology and the role of AI could be seen in various fields such as in education, hospitals, gaming, art, cinema etc.The matter of concern is to acknowledge that AI is being useful in many ways, but in the meantime there are no laws which govern the AI and the infringement made by it.As a result of which it has been Luke hole where it is being misused and causing loss to the original content creator.When it comes to the correlation of AI and IP, One of the major issues that is faced is data ownership. The ownership and licensing of a work made by an AI can be a complex issue. The second major issue is that when AI generates a copyrighted material, there would be a question of liability. This again would lead to a legal challenge.

INTELLECTUAL PROPERTY:

1Intellectual property is the protection of results from human’s intellect which is associated with the innovation, discovery, invention and other co products which is brought down from the work of human intellect, which is also immaterial.Intellect property relates to a bit of information on the products which would be circulated throughout the world and the property rights would not be on that product, however it would be on that bit of information the product will contain.Intellectual property is mainly based on intangible property which is immaterial. Its worth could be compared to any of the material things and it may be worth of even more than that.It relates to the subject matter where law provides right on the immaterial thing which is the result of human labour and skills. The Intellectual Property Rights have concreted the protection of the results from human intellect.All in all Intellectual Property Rights are imperative, indispensable and sine qua non for the development of one’s nation in terms of industrial development, economical development and overall development of the nation and which would also help to combat all the hindrance regarding development of the nation in terms of economical aspect which is associated with counterfeiting the original products.

It can be divided into two types:

1.Industrial Property

 2.Copyright

MEANING OF INDUSTRIAL PROPERTY:

Industrial property refers to the protection of the product of human mind which is related to new invention.

It includes the layout design, products design, integrated circuit layout and other designs which is solely subjected to originality. For eg., it will protect the products design which is related to the appearance of the product in which it would be launched to the public.

 

MEANING OF COPYRIGHT:

It is a right which is mainly protect the copies which would be circulated from the original one. It is related or has its ambit over work like dramatic, literacy, cinematography, music and other artistic works.

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. Copyright helps an individual to put his thoughts into action or to bring out a creation be it literary, dramatic, musical and artistic works, cinematograph films and sound recordings etc., without having the fear of a third person using it without a consent .The copyright laws had various amendments in different nations due to the challenges imposed by technological innovations. This had led to a strong base for creator’s protection as the copyright law had made a safer space for intellectual property. It does not only protect the rights of the copyright owner and neighbouring rights but also deals with the public interest.When we get back to the historical development of copyright it all began from invention of a printing press which led to the idea of protecting the rights of the printers and booksellers to the invention of the world's first copyright law in 1709 in United Kingdom which had three basic rules regarding books and infringement of the book to protect the rights of the owner, it has had a drastic growth in the same as well.Copyright utilises the progress or science and useful arts, whilst protecting the rights of the creators. The author being the creator of the work has the right to enjoy the fruits of the work where the copyright law helps in protecting a person's work without it being used by others. There is a certain limited period of time . For example, in India, sixty years after the death of the owner, whilst none is allowed to use the copyright owners work or get benefitted out of the same . The copyright law also allows other individuals to gain knowledge or information out of the work that was created by the owner. It gives a balance between the copyright owner and the interest of the public.For instance when we take the example of infringing a copyright of a movie, here the person doesn't only infringes the movie but also the work of the musicians, actors, singers, directors etc. As stated in the earlier example there is a statutory limitation of a duration of copyright in a work(sixty years after the death of the author in case of India). Next comes the doctrine of fair use wherein others use the information provided by the creator for private study and research, reaching, criticism, reporting current events etc., and when is comes to non voluntary licensing there are two types.One being statutory licensing, it is a license that entails a notice in the prescribed form to the holder of copyright, and payment of a fee (including an advance, if so ordered)and the other being compulsory licensing it is generally granted to an act but it does not mandate any prior permission from the owner of that particular work. Thus, the person to whom the compulsory license is granted can exclusively use the rights originating from the work without the fear of violating or infringing the author's rights which is what copyright involves.

Therein, copyright does not only ensure the protection of the literary, dramatic, musical, and artistic works of the owner but also establishes a protection for the various intermediaries involved in the work.Copyright protection extends to original musical compositions, sound recordings, and lyrics. This includes songs, instrumental pieces, jingles, and other musical creations.

DEFINITION OF SONG:

Precisely, song is something that includes the musicians, lyricist, composers and every individual who contributed to the outcome of the song has their own copyrights.

Example : Rahul sings a song with music of bands and Ria dances on the song. Then the lyrics of the song constitute to a "literary work" where the lyricist has a copyright.

DEFINITION OF MUSIC:

According to WIPO ,a work , whether serious or light; songs, choruses, operas, musicals, operattus, if it is for instructions, whether for one instrument(solo),a few instruments (Sonata, chamber music etc) or many ( bands, orchestras); are included within musical work.

It would seem that a relatively small number of notes and chords would be sufficient for copyright protection.

Music is basically sound created by various instruments which has notes, harmony, graphical notation.In copyright music can contain graphical notation but not any of the word spoken or sung along with the music.In order to get qualified the music must be original.



A song is the combination of melody and words and each of it is protected by copyright. The melody as a musical work and the lyrics as a literary work. One or the other could be used separately and still be protected. A song is where there are different components or inputs which constitute to the whole output.

The song is protected by copyright once it has been ‘fixed’ in a form that can be copied, such as being written down or recorded. In a wider aspect song is when there are works of different people such as a musician, lyricist, dancers etc., and the infringement of the same would affect the afore mentioned as well. Also copyright of a song basically means a copyright of the people involved in making of the whole song .

But when it comes to the latter sense, any composition whether or not accompanied by instruments is referred to as music. It can be mostly only tunes, notes and harmony using instruments. Musical works refers to written musical scores in the form of sheet music, broadsheets or other notation.

Copyright in musical work is generally owned by the composer itself but when there are a group of people constituting, composing or creating music then it depends on who is willing to take the copyright in the agreement . In comparison with the copyright of song here in the case of music only the copyright of the composer or a group of composers will be infringed. As these don't have lyricist or any literary or dramatic work involved the afore said is said to be destined.

MUSIC COPYRIGHT:

Music copyright gives legal ownership to the copyright holder which includes the right of redistribution, reproduction and licensing which also enables the copyright holder to earn royalties.

Abbreviation: Word Intellectual Property Organization

Wherein, it includes composition which consists of melodies, notes and tones and sound recording which consists of tunes sung by artists.

REMIX SONGS:

From the above discussion we came to know that in a song, the composer , lyricist, musician would be having separate copyright and even if a person has to use it for commercial purpose he must obtain consent from the copyright owner.

Remix songs are those type of songs in which a hint of modern music would be infused into an old song and would be recreated as a modern version of an old song and shall be published in a public platform. Now, with regard to the legal aspect of remixed music, it can be legal only if it is done with accordance to Section 51 of The Copyright Act which speaks about the copyright

violation. If someone wants to make a remix of any old song then that individual has to go through the rights of the original author i.e.

1. Prior notice of the intention.

2. Royalties are paid in advance to the owner.

3. The owner has the right to inspect books of accounts.

4. The remix will be launched after 2 years of making the original work.

We can get an idea by look at the 4Masakali song of film Delhi 6.

In here when Masakali 2.0 was released by Tanishq Bagchi, he didn't take any consent from the real owner of the song. Even after the copyright laws, India lacks enforcement mechanisms as its very weak in nature because this producer openly releases mixed versions of old songs. Masakali song is protected under the copyright Act, if any person releases anything related to this song without the permission of the owner then it's a copyright violation.

FORMS OF MUSIC COPYRIGHT INFRINGEMENT:

I. MUSIC SAMPLING:

Music sampling is the reuse of a particular part of pre existing song and integrating it to a new work. Sounds, melodies, entire bars of music which maybe sped up or slowed down pitched, looped or manipulated. It is basically extracting a part of a particular song and integrating or incorporating it into another one. It also includes collecting small samples from different music and incorporating or connecting it into a new musical work. It is indeed the reuse of a substantial portion of an existing music and incorporating it into a new musical work.

In the case of 5Hawkes and Son v Paramount, the use of 20 seconds of a 4 minute long piece of musical work is enough for it to constitute a substantial part, as 20 seconds were a crucial part of the original song.

In the case of 6Newton v Diamond and others it was held that the respondents weren't liable because the use of flute sample was very less and there were no similarities between the works nor would a person be able to recognise the same.

From the above cases it can be observed that the listener should be able to recognise that a particular music has been taken from a particular song.

Sampling any kind of musical work without the permission of the original copyright holder is a violation of the holder's rights.

In order to file a copyright infringement suit, the plaintiff has to prove that

*He is the owner of the musical work that the defendant has taken

*And the defendant has taken a substantial portion of the plaintiffs work

*And that portion is similar to the plaintiffs work

In the case of 7Jorgensen v. Epic/Sony Records, it is necessary for the plaintiff to show "ownership of the copyright" and "unauthorised copying of the copyrighted work" in order to prove there is infringement.

Music samples can be legal under 2 circumstances; namely:

• If there is consent of the original copyright holder

• If it is used under the exception of doctrine of fair use

However, in India there is no particular provision which exclusively deals with sampling of music . But section 14(a) of the Indian copyright act 1957, provides protection to the entire work or substantial part of the musical work of the original copyright holder and adapting even a single portion would lead to infringement of copyright unless it comes under the exception.


DOCTRINE OF FAIR USE:

Doctrine of fair use can also be termed as fair dealing. It is nothing but the right of the owner of the copyrighted work to use the same with certain limitation without the permission of the original copyright holder. It can be used as a defence for using copyrighted work.The main goal of this doctrine is to distinguish between proper use and unauthorised use. Section 52 of the Indian copyright act 1957 deals with doctrine of fair use. However it is not defined elaborately. In the case

of Civic Chandran v. C. Ammini Amma determines how to identify fair use:

• The purpose of the use including whether it is for commercial or non profit educational purpose.

• The nature of the copyrighted work.

• The amount and substantiality of the portion used in comparison to the entire copyrighted work.

• The impact of the use on the potential market or value of the copyrighted work. However whether a copyrighted work is fair would totally depend on the facts and circumstances of a case.

It is also a defence for music sampling.

II. MUSIC PIRACY :

Music piracy is copying and distributing the music without the consent of the copyright owner. It is basically a theft of music and disturbing it in an illegal way in order to gain profit out of it. Music piracy had affected the music industry in a massive way. One of the major reason why music piracy takes place is because the consumers tend to download the music at free of cost and they don't prefer spending money on entertainment. The music the consumers want to listen might be unaffordable to them or may not be yet launched in the country. Music piracy can somehow be termed as online theft. It's synonymously the theft of an intellectual property illegally without the consent of the original copyright holder. However, these acts cannot be justified for the reasons stated above as it can be a major loss for the copyright owner.One of the major ways to prevent music piracy is watermarking where a specific digital signature is incorporated into the composition of music through watermarking and only specialised software can be able to have access to the signature as it is invisible to the unaided eye. The other way is to spread education and awareness to people about the importance of copyright protection and the consequences of violating the laws.

In the case of Ranks v. Blippi LLC the plaintiff filed a suit against the defendant who makes educational videos for children for using his songs without the permissions. The court ordered the defendant to pay the plaintiffs legal fees for copyright violation.For instance, in India section 66 of the information technology act,2000 provides for punishment upto 3years of imprisonment and a fine of rupees 2 lakhs for illegal online distribution of copyrighted content.

III. MUSIC PLAGIARISM:

Refers to the imitation or unauthorised use of someone else's musical works including notes and melodies.When an artist or composer believes that his work has been plagiarised he can claim against the suspected plagiariser and if the plagiariser is proven guilty, he is to be held liable for the same. Basically, the original copyright owners are supposed to claim royalties for their work, now when a music is plagiarised they may loose out an opportunity to promote their original creation and therein there may be loss of royalties as well. Plagiarism declines the originality of a music. In order to protect the artists from plagiarism it is always better to register copyright, seek licensing and permissions, always give proper credits to the copyright holder and obtain necessary clearances from copyright holders before releasing the music.

In the case of 10Varaha Roopam a song from the Kannada movie Kantara, the Kerala High court has issued an interim injunction prohibiting the use of the song as it is the plagiarised version of a Malayalam song "Navarasam". In fact the court had pointed out that the music director of that song admitted that this song was a "inspiration" from the song "Navarasam". However, the court stated a very thin line of difference between plagiarism and inspiration.

DIFFERENCE BETWEEN PLAGIARISM AND PIRACY:

There is a subtle difference between plagiarism and piracy and sceptical view could be clarified while looking into the definition.

Plagiarism is the unauthorised use of original work or literature without giving the credit to the content owner and portraying as his own work. There are several types of plagiarism and a person could be held liable in one among those.

Piracy is the reproduction of the original work or distribution of the copyrighted work in which they would use it for commercial purpose by stealing original content.

According to Merriam-Webster, Piracy is defined as;

the unauthorised use of another's production, invention, or conception especially in infringement of a copyright.Piracy usually refers to art, music , Cinema, photography etc.

AI AND IT’S POSITION:

Artificial intelligence is a computer program which is used to do the work which would require human intelligence. It is the stimulation of human intelligence. Few of the popularly know AI which are used by most of them are SIRI,BIXBY and GOOGLE BARD.

The use of AI has been increased and is being used at its peak after knowing its ability to perform the same amount of work which would be done by human in a much more efficient and in a quicker way. We must also not forget that AI is a computer program and is often subject to glitch which would vary the performance of the task.AI is a computer based program and it imitates human intelligence and performs work which a human would had done it by applying his intellect and idea. In the recent days, we may come across arts and images which are generated by AI and recently songs, which are also generated through AI. Now a question may arise as to whether the content created by the AI is protected?If so, would it gain its applicability in Copyright acts and seek protection?

Before getting into this its important to know the ownership of copyright in certain situations. The employer, when a work has been under a contract or an agreement by a professional then the person who employs such professional would be the owner of the produced work.

When a work has been created by a person’s skill, intellect and idea then the person whose has caused any creation with using the above said yardsticks, would be the owner of that work.

The current Copyright Act does not recognised the work of AI but only emphasise, recognise and give protection to a work done by human.Even if the work generated by AI has been recognised then who would be the author?, Now assuming the fact that the work of an AI has been recognised, it is necessary to know the types and stakeholders of those types and people who would owe the liability.

There are two types of AI:

1. Program based AI

2.Self generating AI

Program based AI would require an input or the program in order to perform the work which would be fed by the programmer. In such case the person who feed the input can be considered as the author of the work generated. Again if such programmer has given an input based on the contract, the person who has employed the programmer can be considered as the author/ the owner of the work.UK High Court in Nova Production Ltd v. Mazooma Game Ltd where the authorship of video game produced by AI was in dispute the court held that author of the work was the programmer who "devised the appearance of the various elements of the game and the rules and logic by which it was generated and who wrote the relevant computer program.

Self generating AI can perform and process the data on it’s own.Recent technological development in the field of AI has been remarkable and tremendous to an extent to which it is capable to produce the output on it’s own without the any interference of human. In such cases the person who has created the self generating AI can be considered as the author of the work.

Copyright are only available to an author defined in section 2(d) of the Copyrights Act which is as follows:

author" means, —

i. In relation to a literary or dramatic work, the author of the work;

ii. In relation to a musical work, the composer;

iii. In relation to an artistic work other than a photograph, the artist;

iv. In relation to a photograph, the person taking the photograph;

v. In relation to a cinematograph film or sound recording, the producer; and

vi. In relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;And for the works which has artistic expression in the form of music, literature, drama, art etc.

Now the most common problems which may arise if AI has been granted to be as an author which is giving it a legal personality could be understood by the working of the AI, its a prime fact that AI cannot generate data or the original content on it’s on, in fact it can process the data which is already available in the public platform and collect all those data or may use any copyrighted work to produce it’s output thereby, leading to copyright infringement.Also the copyright infringement defines that the acts done by a person which would lead to the infringement could be held liable but in this scenario it is AI and it would be unclear regarding liability for the infringement.

Hence any work produced by AI must be treated and recognised separately and with regard to liability and granting authorship:

The owner and author in program based AI would be Owner: one who feeds the input

Author: AI

And in self generating AI Owner: who owns the AI Author: AI

As a recent development, an AI app named 12RAGHAV has been given co authorship for an art work Suryast. Ankit Sahni an IP based lawyer owns the AI app, in his initial approach to obtain authorship for the AI on the work, the authorities rejected on the first glance but on his second attempt making himself as an author and AI as co author for Suryast, he approached the authorities and subsequently they did approve it . It can be believed that India has been the first country to recognise AI authorship work. This clearly shows the evolving ambit of the Act and it is the need of the hour to make necessary changes in the Act to adapt the new technological changes among which AI is included. It is vital to make changes in the Act since the field of AI is vulnerable in nature and could be misused in such limited ambit laws which would further lead to great loss. Granting AI alone a legal status would be impractical as it doesn’t satisfy the requirements to have legal personality but through this way it can gain a legal personality and the following people could be held liable for any copyright infringement.

AI AND MUSIC:

There is a growing trend towards songs which are generated by AI and it has also got positive response from the public but the only problem is that they would have to work on the material which is available in public platform or any copyrighted material. It is important to know that in the music industry the singer would have copyright on his voice, likewise the lyricist would be having copyright on his lyrics and composer on his music. Even if a person using any of the music which are copyrighted and creates a new song combining number of tunes with the help of AI, generating a new song which would sound completely different from the one he had picked from, he would require to obtain the consent from the owner or the author to use their copyrighted work. However there is an exception that unless it is used for commercial purposes, it is permissible for the use of those materials.Recently an AI produced song named Heart On My Sleeves which sounded like Drakes and Weekends voice was launched in a public platform and gained million of views.

However, it was removed by various streaming services.Universal music group which deals with both the artists argued that the AI companies violates copyright by using the songs of the artist

CONCLUSION:

The very proof of the evolving nature of the world could be felt by the invention and creations which has been benefitting people across the globe. AI is one among such creation, the development has been taking place in an evasive manner and as a result of which it has developed to such an extent that now it is capable of generating data on its own and much accurately. The inventor of AI John McCarthy has rightly said that AI is a tool not a creature which would need an input to process data. From the above discussion we can know that complications which may arise in the creation and the use of AI.

As we all know music copyright has its own protection to some extent. However, the infringer infringes for their personal benefit. As technology is developing, we can see the high chances of infringements that would happen. Indeed there is a wide scope for the same. Therein, with an increase in technology there has to be stringent laws to be made according to the developed technology as prevention is better than cure. Since most of the people aren't really aware of what is happening or what has been updated from day to day activities, they are more prone to getting exploited. Being aware and spreading awareness to people through various means can be one among the way where we can reduce their chances of getting exploited. Speaking of technology we can take a present example of AI. There are indeed a lot of benefits from it, such as automated research, deep article researching, enhanced analysis, accurate legal research, identifying counterfeit products etc.However as there are two sides of the same coin, AI has its own cons as well. AI in the beginning was looked as a tool and not a creature but as the days passed by AI is being looked at as a creature where it has to be given a legal personality in order to create a musical work or to make it liable in case of any infringement. We must also be aware that AI being a sophisticated program is just like any other program and is subjected to technical glitches which may vary the results. We must also not forget the pros of AI in the field of research and development where it helps the researchers to conduct their experiments in harsh climatic conditions which cannot be accessed by humans in a way of task by a robot with an installed AI. It also reduces the work of human beings and makes them lazy and lethargic where it makes their researching and analysing skills reduced.

As AI improves there are high chances of using less or no human resources at all which automatically leads to unemployment. AI being a treasure or a threat is always be debatable. The

stand of AI in India has been developing and is taking new dimensions with respect to identification of AI. This is the current position and stand of AI in our system, the future of AI could be anticipated in a curious way concerning to its laws that would govern and regulate its actions and its identification.

REFERENCES

  1. Law of copyright - Alka Chawla

  2. Law relating to IPR - VK Ahuja

  3. Abbreviation: Word Intellectual Property Organization

  4.  [1934] 1 Ch 593

  5.  204 F. Supp. 2d 1244 (C.D. Cal. 2002)

  6. 351 F, 3d 46 51,(2nd Cir 2003)

  7. 16 PTC 329 (Kerala)

  8.  https://www.legalserviceindia.com/legal/article-10279-the-future-of-music-copyright-law-in-the-digital-age.html

  9. 2022 LiveLaw (Ker) 612

  10. [2007] EWCA Civ 219

  11. https://www.managingip.com/article/2a5czmpwixyj23wyqct1c/exclusive-india-recognises-ai-as-co-author-of- copyrighted-artwork

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