In the contemporary tech-dominated age, where machines are not only taking over important jobs but also encroaching on the less crucial aspects of our lives, even art is succumbing to the impact. 

Art has been the form of expression for humans over millennia, dating back to the stone age doodlings of Anatolian caves. What we now know as art has begun with drawing, followed by the foundations of music, with the Neanderthal flute being the oldest known instrument belonging to mankind. 

Fast forward to the twenty-first century and humans are working within their room with complex computing-based instruments, giving them the ability to manipulate sounds that have previously been unknown. Music, too, has morphed through the years, and today, there’s a fresh kind of change happening in the art world, one which has been unseen to humans: cloning softwares have made it possible to reproduce an artist’s voice, giving users the opportunity of expressing their own works through the voice of, perhaps, their favorite artists. 

The use of this software has not been very popular in the past and is still not the most widely used technological instrument in the world of music. However, special attention was given to it in 2023 after a TikToker called Ghostwriter977 published a song using cloning software with the voice of the icon. This has sparked a debate: whether the production of a song using a cloning software that utilizes the voice of another artist, can be challenged on the basis of Intellectual Property Rights. 

 

Hence we arrive at the topic of our monthly blog: we will discuss possible grounds of defense against cloning software under European Intellectual Property laws.  

 

Background knowledge

The use of cloning software entails not only the usage of the voice, but the singing abilities of an artist, consequently it is possible to argue Drake’s personal “flow” being analyzed and used by the computer. 

For the context of this blog, “flow” is construed to be an individual’s capacity to synchronize the rhythm of their poetic proficiency with the musical cadence of the accompanying instrumentals during the act of rapping. With main aspects settled, let’s check whether Drake has any grounds to sue the Ghostwriter779 on the basis of EU intellectual property law: 

 

First and foremost for our readers who are not familiar with EU Intellectual Property rights, there are some basic aspects to know: 

1. The field is not completely harmonized, however legislation on the EU level does exist (e.g Information Society Directive). This means the rules relating to IP rights in the EU are not common in all Member States. 
2. Multiple CJEU judgments help the court on dealing with future IP cases. The landmark case of the field is Infopaq, which deals with the criterion of originality of works. 

 

Arguments:

Going by the formal requirements, it is important to first determine whether the flow of an artist is eligible for copyright protection: 

Article 2(1) of Berne convention denotes what can be protected intellectual property right. Under the article, the notion of “literary and artistic works” encapsulates “literary, scientific and artistic works”. In theory, one could argue the flow of an artist, being one of a kind to the singing abilities of a singer, should be protected under Berne Convention. Now, it is important to check the originality requirement to determine whether a flow can be considered an original work under EU law: 

The Court under its judgment of Eva-Maria Painer established that the author marking the work with his personal touch adds an originality to the work, hence protected by the Union copyright laws. A rapper’s flow is specific to their abilities, by which an artist leaves their specific mark to the song. Their fame is consequently linked to their abilities to create a flow,  appreciated by their listeners, being a part of their intellectual work.

Although arguing on the basis of the flow would help to build a case, the principal objective is to block the usage of artists’ voices. Another possible solution would be arguing a case on the basis of right of adaptation, as new songs are being created on the basis of the voice of the artists without their consent.

 

Objections: 

The concept of flow is rather the tool used for the production of the artistic work, than the artistic work itself. There are no laws or case laws on the prohibition of the use of tools to make an artistic work. His voice is hence not protected under IP laws as it does not fulfill the Berne convention criteria. When argued with the Painer case, the flow becomes the way by which the artistic touch is made and not the subsequent touch added to the work. 

Defining “flow” as one of a kind to a person is wrong, as rappers tend to have different flows for different songs, consequently what makes their artistic work valuable to the public is not their flow but rather their style of music and individual production, which fall under the protection criteria . 

In order to base a case on the right to adaptation, there should be a literary work in the meaning of article 2(1) Berne Convention, which in the case of voice cannot be argued as it does not meet any ground laid down by the article. Furthermore, there are no laws that are directly applicable to an artificial intelligence system, which by way of natural language processing, imitates an artist’s voice. 

 

The use of artificial intelligence systems to copy the voice of an artist is an uncovered area by law. As far as the thoughts go, a case can be argued on the basis of the artist’s specific capabilities of making rap songs, which is achieved via the usage of a flow specific to the artist. However, the argument is up for debate as it holds a number of flaws. This however does not change the ethical concerns about the use of an artist’s voice for the purpose of creating new songs. The legal gap currently allows anyone with a cloning software to create songs based on an artist’s voice. It is up to the legislators and the Courts to either enact or interpret the law for the protection of art, which through the example of Ghostwriter977, can be taken over by the artificial intelligence systems.

 

Opinion of the writer:

The advancement of AI and deep fakes are becoming a concern for those who are affected, which in this specific case the artists. Beyond the ethical and legal concerns that come with the use of cloning softwares, there is a great impact on the artistic scene, as a decline in creativity might arise with the use of artificial intelligence systems, both which artists and their fans can use to create music. On the other hand, the song which was created by Ghostwrite977 has become popular on social media for a reason: it was realistic and suitable to the ears of rap enthusiasts. The problem would then be distinguishing a song made by an AI via the use of cloning software or an original piece of music by an artist. It is up to the legal scholars, legislators, and the Courts to debate and tackle the issue as what we know as one of the most creative forms of art might be left to the hands of a machine, which cannot have the creative thinking component in itself. 

 

What do you think will happen? Do you think AI generated music will be as creative as one done by a human? Leave your opinion and hope to meet you on the next blog.