Copyright law has long served owners and technology companies more effectively than creators. AI licensing now makes the case for stronger protection for artists.
When you print out the Australian Copyright Act 1968 it will run to 700 pages. There is no flowchart or map that shows you how to navigate the length or legalese. Many of the sections include definitions that defy common sense understanding.
The words “creator” and “creative” do not appear anywhere in the legislation.
That we have become accustomed to thinking of copyright as the law that protects artists is a significant achievement of the global media conglomerates, who we forget were once just technology companies. In the early days of the sound recording industry, these were companies whose business model was based on copyright theft. The early gramophone companies did not pay for the music they recorded. They did not have to do so because copyright legislation of that time could not recognise the technological trace of a musical composition inscribed on a pianola roll or wax cylinder as an infringing reproduction of the composer’s work. This situation was recognised as unfair to both the composer and the music publisher whose profits were derived from selling print music and the right to perform it. The newfangled technology interfered with the market for both. Law reform was needed.
In both Britain and America the complaint of composers and music publishers found a sympathetic hearing. But here was the problem – in the late nineteenth century international music publishing was controlled by a handful of companies. If they were given the right to control reproduction on the new technologies, music publishers could pick and choose whose technology saw the light of day and lock down future innovation in entertainment.
The gramophone companies also faced a problem. If they paid significant fees to artists to record for them, what would stop rival firms copying the records? They wanted their own copyright. But how does a technology company make the case that they deserve the same rights as the creator?
An answer was found by pursuing a connection with the Australian opera diva, Dame Nellie Melba. She was a household name, a star singing in opera houses across the British Empire, on the Continent and in America. She was a friend to high society, a fashionista and not scared of new technology.
Melba agreed to record for the gramophone company along with Enrico Caruso, but as no serious artist had previously released a recording Melba insisted on a right to approve the final masters and to smash to smithereens the bad ones. She wanted high fees. Her lover also wanted a cut which he arranged through secret negotiations with the company, in return for pressuring Melba when she prevaricated over signing the contract.
Once she did sign, the gramophone company then successfully argued in the British Parliament that due to their support for artists and the high fees they had to pay them, they also needed a copyright. Most artists did not get the same deal as this savvy business woman. The technology companies then rearranged themselves into device manufacturing divisions relying on patents and trade marks and recording divisions identified with copyright. Some artists negotiate recording contracts that they do well from. Many do not.
New technologies can give rise to confusion as to whether or not copyright is technically being infringed. As we have saw with gramophones last century and artificial intelligence in this one, technology companies with deep pockets often proceed regardless. Infringe, be damned and sort it out later.
Copyright owners with huge IP assets will always cut a deal. With AI, they are already doing so. In May Spotify and Universal Music Group announced a Landmark Licensing Agreement that allows for Gen-AI Fan-Made Covers and Remixes. In June the US National Music Publishers’ Association concluded an industry-wide AI licensing deal with the AI music platform Udio. NMPA CEO David Israelite described Udio as a platform that “allows people to reimagine music using the distinct styles of songwriters and artists.” He added, “To do this, Udio accepted that it needs permission from publishers and labels,”. “And they’ve come to the table to bring creators in as business partners. As it should be”.
American lawyers now report that artists are being asked to sign contracts that require them to also sign over rights to their image, voice and likeness so their reputation can to be used to support Gen-AI content. Contracts issued to Australian authors by publishers are now circulated that include very similar clauses.
In Australia, agreement may not even be required. We have no similar legislation that protects image, voice or likeness, and where underlying content is licensed, Gen-AI remixes will not likely infringe the artist’s moral right of attribution or integrity.
Artists and copyright owners are both being badly impacted by artificial intelligence. The Copyright Act does not arm them equally to respond. Copyright owners are owed a licence, but we should be asking if copyright is the right legislation to use to empower artists and help control their livelihoods as AI-licensing develops. This crisis also presents an opportunity to honour artist and public expectations and deliver better protection for artists – we need copyright plus.
