[Lara Manbeck is an Associate Legal Officer at the International Court of Justice. She holds a JD from Columbia Law School, an MPhil from the University of Cambridge, and a BA from New York University.
Abhijeet Shrivastava is a public international lawyer and holds an LLM from the University of Cambridge and a BA, LLB (Hons) from OP Jindal Global University.]
Introduction
The popular imagination has long contemplated a world in which the boundary between technology and humanity would become indistinct. Despite such foresight, artistic production has continued to be seen by many as an exclusively human, if not also a spiritual, endeavour (see, for example, Pope Leo XIV’s recent encyclical Magnifica Humanitas). In an era of increasingly undetectable deepfakes, however, it should be no surprise that this assumption is now in question. AI has now, perhaps irreversibly, intruded upon one of the most primordial realms of human expression: music.
Cursory scrolling through social media or music platforms readily demonstrates the prevalence of this phenomenon. The silence of long-deceased artists is being broken by generative AI that can replicate their voices, sometimes prompting legal action from their estates. AI-generated songs have permeated streaming services, with one study estimating that revenue from such music will increase from $100 million in 2023 to around $4 billion in 2028. Aptly concerned about the existential threat these developments pose, artists have assembled in protest against perceived regulatory lacunae.
The question thus arises as to whether technology has outpaced international regulation in the realm of music. Offering an initial response, this post identifies the central challenges posed by this possible gap. After providing an overview of the applicable law, we turn to issues of ambiguity and then explore whether existing exceptions can accommodate generative AI music, before finally assessing what reforms may be necessary going forward.
Core International Framework
Million-dollar lawsuits are ongoing in domestic courts against producers of AI-generated music, typically with copyright violations as the cause of action. However, as of writing, domestic regulators have yet to pointedly tackle the source of the problem. At the international level, there is likewise no dedicated international treaty regulating AI-generated music. Rather, as with earlier technological developments such as malicious cyber activities, the situation calls for the application of existing international legal norms to novel circumstances.
In the realm of international intellectual property, this presently comprises a collection of long-standing copyright and ancillary treaties, including principally the Berne Convention for the Protection of Literary and Artistic Works, 1979 (“Berne Convention”); the Agreement on Trade-Related Aspects of Intellectual Property, 1994 (“TRIPS”); the Copyright Treaty, 1996 (“WCT”) under the World Intellectual Property Organization (“WIPO”); and finally, the WIPO Performances and Phonograms Treaty, 1996 (“WPPT”).
The Berne Convention, which has 182 States Parties, sits at the foundation of the international intellectual property regime. Covering “every production in the literary, scientific and artistic domain, whatever the mode or form of its expression” (Article 2), it requires States Parties to provide certain minimum rights to authors. These include, among others, rights of reproduction (Article 9), public performance (Article 11), broadcasting (Article 11bis), and adaptation (Article 12). Moreover, Article 6bis recognizes “moral rights,” i.e., the right of the author “to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
Two basic features of the Berne Convention are of particular relevance to recent innovations like AI-generated music. For one, its safeguards apply automatically: a composer need not register their work abroad in order to benefit from treaty-based protection (p. 5). Secondly, copyright enforcement remains territorial (p. 85). In other words, while the Berne Convention imposes cross-border obligations on States Parties, infringement claims are generally resolved under the law of the country where protection is sought (p. 34). This means that the same act of AI training, or the same AI-generated output, may be treated differently depending on how a particular national jurisdiction addresses it, giving rise to a risk of fragmentation if States Parties cannot develop common ground rules.
Further, TRIPS, the WCT, and the WPPT supplement the Berne Convention by incorporating its standards into the World Trade Organization framework, and by strengthening enforcement obligations (see TRIPS Articles 9(1), 41(1)); by clarifying authors’ rights in the digital environment, including the rights of communication to the public and making available (see WCT Articles 6, 8), and performers’ rights in their performances, including reproduction and making available (WPPT Articles 7, 10); and by protecting the related rights of phonogram producers (WPPT Articles 11-14).
Ambiguities Surrounding AI-generated Music
The international intellectual-property treaty regime protects distinct rights that different right-holders may hold in a given musical work. The same composition may be protected as both a musician’s authorial work and a basis for performers’ rights. Furthermore, the producer of the musical recording too might possess rights in the phonogram itself. International intellectual property law, therefore, provides multilayered protections to a range of stakeholders in works that may be appropriated through generative AI.
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