Tag Archives: #IP Rights

AI vs IP

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Can Artificial Intelligence software claim copyright in any work that was created using their algorithms?

The short answer is “no”, since only humans can establish copyright in original creative works. Copyright can be assigned to a company or trust, or it can be created under various forms of creative commons, but there still needs to be a human author behind the copyright material. While copyright may lapse over time, it then becomes part of the public domain.

However, the extent to which a human author can claim copyright in a work that has been created with the help of AI is now being challenged. A recent case in the USA has determined that the author of a graphic novel, which included images created using Midjouney, cannot claim copyright in those images. While it was accepted that the author devised the text and other prompts that the software used as the generative inputs, the output images themselves could not be the subject of copyright protection – meaning they are either in the public domain, or they fall under some category of creative commons? This case also indicates that, in the USA at least, failing to declare the use of AI tools in a work when applying for copyright registration may result in a rejected application.

Does this decision mean that the people who write AI programmes could claim copyright in works created using their software? Probably not – as this would imply that Microsoft could establish copyright in every novel written using Word, especially its grammar and spelling tools.

On the other hand, programmers and software developers who use copyright material to train their models may need to obtain relevant permission from the copyright holders (as would anyone using the AI tools and who uses copyright content as prompts), unless they could claim exemptions under “fair dealing” or “fair use” provisions.

We’re still early in the lengthy process whereby copyright and other intellectual property laws are tested and re-calibrated in the wake of AI. Maybe the outcomes of future copyright cases will depend on whether you are Ed Sheeran or Robin Thicke….

Next week: Customer Experience vs Process Design

 

Copyright – Use It Or Lose It?

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I was browsing in one of the last remaining record stores in Melbourne’s CBD last week, flipping through the secondhand racks for independent vinyl releases of the 70s and 80s. (I was in search of some sounds of the Paisley Underground, if anyone is interested.) The shop owner, who also runs a record label, lamented that there are a whole bunch of out-of-print recordings of that era that he wants to license for reissue in physical format – but in many cases, the rights have since been acquired by major record companies that have no interest in re-releasing this material themselves. Yet, when approached for permission, oftentimes they ask for prohibitive licensing fees, making the venture uneconomic.

The sound of the Paisley Underground (on vinyl, of course) – Image sourced from Discogs.com

The irony is, most times the major labels have no idea what they have in their back catalogues, because the content they own has been scooped up through corporate mergers or is still managed via a series of archaic territorial licensing and distribution deals based on antiquated geo-blocking practices. Plus, understandably, they are usually more interested in flogging their latest product than curating their past.

There’s nothing wrong with content owners wanting to charge licensing fees, but surely they need to be commensurate with the likely rate of return for the licensee (we’re usually talking about a small circulation among enthusiasts, after all). Plus, the original production costs have either been written off, or amortized on the books – so, given there is little to no new cost to the content owner, ANY additional revenue stream would surely be welcome, however modest?

But what about streaming and downloads? Surely all this back catalogue content is available from your nearest digital music platform of choice? Well, actually no. In many cases, “out-of-print” also means “out-of-circulation”. And even if back content is available to stream or download, the aforementioned geo-blocking can mean that rights owners in certain markets may choose not to make the content available in specific countries. (I’ve even had the experience where content I have purchased and downloaded from iTunes Australia is no longer available – probably because the rights have subsequently been acquired by a local distributor who has elected to withdraw it from circulation.)

Of course, copyrights eventually expire or lapse, and unless renewed or otherwise maintained, usually fall into the public domain (but not for many years…..). Again, nothing wrong with affording copyright owners the commercial and financial benefits of their IP. But, should content owners be allowed to sit on their assets, and do nothing with their IP, despite the willingness of potential licensees to generate additional income for them?

In a previous blog, I ventured the idea of a “use it or lose it” concept. This would enable prospective licensees to re-issue content, in return for an appropriate royalty fee or share of revenues, where the copyright owners (and/or their labels, publishers and distributors) no longer make it available – either in certain markets and territories, or in specific formats. To mitigate potential copyright exploitation, copyright owners would be given the opportunity to explain why they have chosen to withhold or withdraw material that had previously been commercially available. There could also be an independent adjudicator to assess these explanations, and to help set an appropriate level of licensing fees and/or royalties.

Meanwhile, on-line sites like Discogs.com provide a welcome marketplace for out-of-print back catalogue!

Next week: Big Data – Panacea or Pandemic?

 

 

 

 

 

 

Will Social Media Eat Itself?

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The Internet has shortened the use-by date of most content. Even our attention spans are getting shorter, in inverse proportion to the amount of content we consume and length of time we spend engaging in Social Media and other platforms. Paradoxically, some stuff grabs our attention, and goes viral as everyone posts, shares, likes, blogs and Tweets the same content. Which brings me to this infamous “infographic” on donuts as a signifier for Social Media:

Donuts_SocialMedia_ThreeShipsMedia

Content by Three Ships Media – Photo by Doug Ray

Recently, I saw this image appear as a status update and a “like” by the person posting it. There was no obvious acknowledgement, giving the impression it was an original piece of work. But I recalled having seen it before (more of which later), so I was intrigued as to the true source and provenance. On closer inspection, there was a reference to a third-party website, but this was a dead-end leading to an anonymous blog post.

After a brief search, I located what I believe is the original source for the infographic, Three Ships Media, as well as the photographer who captured the image, Doug Ray. Not that difficult to uncover, given that the post has been “liked” and Tweeted about well over 100,000 times, and written up in Three Ship Media’s own blog (about how this innocuous image had gone viral….).

Now, I don’t believe that the person who posted this image was trying to claim the content as their own work. And I doubt they were deliberately seeking to violate anyone’s intellectual property rights. Yet, the failure to acknowledge our sources (regardless of whether we are exploiting them for personal commercial gain or simply invoking the fair use provisions) threatens to undermine our credibility as commentators, critics and thought leaders. If we keep recycling other people’s work without attribution, the risk is that social media will simply implode as it chases itself in ever-diminishing circles.

Ironically, I realised that I had first seen this infographic at a seminar on the legal and practical aspects of Social Media. It was used by a lawyer to introduce his presentation on copyright issues and the Internet. All very well, except that he insinuated that he had come up with the infographic, and he certainly didn’t cite the original source….

Footnote: The title of this blog was inspired by the writer, David Quantick who coined the phrase “pop will eat itself” in the mid-1980’s, to describe the way modern music is self-referencing itself into oblivion.