Who owns the rights to AI-generated content?

March 8, 2023
Robot playing piano

Managing Partner Euan Lawson comments on the legal implications of AI-generated content, namely what data is used to generate it and who owns the copyright in the content, in NME.

"There are two big copyright issues. The first is training data, that is, what data is the AI generator using to learn and to produce content? If that training data incorporates any copyright work that is owned by a third party - for example, music, recordings, films, images – then, unless the use has been authorised, it is very likely to be infringing.

In the David Guetta case, the artist used two AI generators, the first to create lyrics in the style of Eminem, and the second to mimic Eminem’s voice in performing those lyrics. Even without knowing the precise way in which those generators work, it seems likely that they have somehow ingested lyrics written by Eminem and recordings of Eminem’s voice. Without a valid licence from the owners of those rights, then the use is likely to be infringing.

It is interesting to note that, in the UK, the Intellectual Property Office considered this issue in 2022 and proposed an exemption which would allow general use of content for text and data mining purposes. It was recently announced that the UK government will not be proceeding with this approach, after pushback from the music industry in particular.

The second big copyright issue is: who owns the content that is generated by AI?

The position in the UK is clearer than in other jurisdictions, like certain EU countries – but there is still a great deal of uncertainty.  Generally, in the UK, there must be a human author for a copyright to arise in a work. However, the law provides that the author of a “computer-generated” work shall be the person “by whom the arrangements necessary for the creation of the work are undertaken”. Those works don’t include sound recordings or films, and it remains to be seen how that definition might be interpreted where an AI has been developed by one person or business, and an unrelated person provides the prompts to generate a piece of content.

Aside from copyright, there are other legal issues:

  • If, as an artist, you use an AI generator to produce content, on what basis has the owner of the AI generator allowed you to use it?  The terms and conditions of the owner of the AI generator will apply – and they tend to vary quite significantly. For example, OpenAI’s DALL.E’s terms state that its users own the output of the service (and take the risk), subject to complying with certain acceptable-use conditions. Whereas, free users of Midjourney are granted a non-commercial Creative Commons licence, and have no right to commercially exploit the AI-generated content.
  • If you mimic the voice or image of an existing artist, you are likely to run into legal difficulties either in relation to specific “image rights” laws that exist in certain parts of the world, or otherwise be accused of misrepresentation or false advertising. There is also a potential data protection issue relating to the processing of personal data.  

Creative industries are generally quick to embrace new technologies, and there will always be trade-offs between the risks and myriads of opportunities presented by AI. The innovations in the generative AI space, notably with the break-out viral success of ChatGPT and large language models, means that the technology has hit consumer consciousness more starkly in the past six months than ever before. For example, in the gaming space, we have seen infinitely generated games, like AI Dungeon, rising in popularity and an unofficial community project integrating ChatGPT into Mount & Blade 2: Bannerlord to create a more immersive NPC chat system.

AI also provides tools to smaller creators to create content similar to industry big hitters. The game This Girl Does Not Exist, for example, uses AI generated content for its art, story and music. In the music industry, several services, such as Soundraw, claim to offer royalty-free AI generated music for use for no or very small fees, much in the same way stock footage or imagery might be used.

It seems increasingly likely that day-to-day products that consumers interact with will integrate AI in some fashion. Microsoft’s well-publicised relationship with ChatGPT has the potential to be the next big leap in search and accessibility, either directly or by spurring competition from the likes of Google’s BARD. It remains to be seen just how widespread adoption of AI technology will become, but what is certain is that, as a whole, the creative industries are at the forefront of adapting to, and integrating with, these technologies."

Euan's comments were published in NME, 8 March 2023, and can be found here.

Euan LawsonEuan Lawson
Euan Lawson
Euan Lawson

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