In an interview with The Associated Press on July 4, 2023, CEO and President of the Recording Academy, Harvey Mason Jr., articulated the following stance on Artificial Intelligence (AI) with respect to the Grammy Awards:
“AI, or music that contains AI-created elements, is absolutely eligible for entry and consideration for Grammy nomination. Period…What’s not going to happen is we are not going to give a Grammy or Grammy nomination to the AI portion.”
“AI” means “Artificial Intelligence” and can be defined as software, computer systems or machines which imitate processes of the human mind. AI has been a part of the music industry in several ways including as “creators” and performers. Some human entertainers have collaborated with AI, while others are not as tolerant, especially where AI is copying their likeness without their consent. As a result, the introduction of AI in the music business has engendered several legal questions. Among the issues are ones about the rights, if any, that can be held by AI, and how humans can protect themselves and their work from being exploited by the use of AI.
The law on copyright is essential in determining if AI sources can hold legal rights in the music industry. According to section 6 of Jamaica’s Copyright Act, copyright is a property right which may subsist in original literary works (including song lyrics), musical works and sound recordings. The author of a protected work is the first owner of any copyright in that work unless there is an agreement to the contrary. In considering whether AI can be such a “person”, it should be considered if it is possible for AI to create an original product cable of possessing copyright protection.
The Copyright Act does not define “original” but case law, including from the United Kingdom, provides some guidance on the threshold of originality. In the University of London Press v University Tutorial Press [1916] 2 Ch 601, the court said, for a work to be original, it must not be copied from another work and should originate from the author. The Jamaican Supreme Court, in the case of Cabel Stephenson v Doreen Hibbert and others [2022], stated that “a sufficient degree of originality is defined as the measure of skill and labour that was applied by the author in its creation (beyond what was involved in reproducing the original work)”. “Original’ with respect to copyright is a relatively low standard compared to the standard of “novel” which applies to patents. In fact, section 6(8) of the Copyright Act clarifies that copyright protection does not extend to an idea, concept or principle. In other words, it is the expression of an idea that needs to be original and not the idea itself.
A product created by a human author may be inspired by the work of another, but still be original enough to not breach any copyright existing in the work from which inspiration was sought. There is some debate around whether AI is truly capable of similarly producing an original work, or is simply copying works fed to the AI source. Some have argued that there would be no question of originality if certain works produced by AI, trained using large amounts of data, were actually produced by a human, suggesting there is bias against AI. It may be that whether a work generated by AI is original should be determined on a case-by-case basis.
In any event, even if AI gets over the originality hurdle, AI could still be prevented from being recognized as the author of work due to other provisions of the law. Under the Copyright Act, in the case of a computer-generated literary or musical work, the author is the person by whom the arrangements necessary for the creation of the work are undertaken. As such, it does not appear that the Copyright Act permits AI to be an author, as opposed to a mere tool used by the author. Similar to the rules applicable to the Grammy Awards, the efforts of humans are being recognized and credited.
Additionally, while it has been successfully argued in cases in the United States, that using copyrighted material to train AI can in certain circumstances be considered fair use, not in breach of copyright, AI users should be mindful of the tort of appropriation of personality. This tort is not recognized in the United Kingdom, but it was recognized in the Jamaican Supreme Court cases between the Robert Marley Foundation and Dino Michelle Limited (1994), and Georgia Messam and Morris and another (2004). The person responsible for AI that copies for commercial purposes the image or likeness, including the voice, of an individual without that person’s consent, may be found liable for misappropriation of personality in Jamaica, if our courts are minded to continue to uphold that principle.
The laws in the music industry do not prohibit the use of AI, but the role of AI is not on par with that of humans. As AI becomes more prevalent in the industry there might be changes in the law with respect to how AI is treated. To date, from the perspective of the law in Jamaica, AI is a tool that can be used to facilitate the creation of music and/or expose their users to liability if they are not utilized lawfully.
Kimberley Brown is an attorney at Myers, Fletcher & Gordon and a member of the firm’s Commercial Department. She may be contacted at kimberley.brown@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article was written with the assistance of intern/student of the Norman Manley Law School, Stephanie Barnes. This article is for general information purposes only and does not constitute legal advice.
