Legal analysis white paper, authored by Prof. Daniel Gervais and released by FTMI, now available to download as an eBook
12 September 2024 – Toronto: One of the world’s leading IP law experts has proposed a new right of remuneration that would level the playing field for music creators struggling against mass produced, generative AI (GenAI) content. The proposal was developed by Prof. Daniel Gervais, director of the Intellectual Property Program at Vanderbilt Law School, who has spent ten years researching and addressing policy issues on behalf of the World Trade Organization, the World Intellectual Property Organization and the Copyright Clearance Centre.
Writing in a new white paper titled “The Remuneration of Music Creators for the Use of Their Works by Generative AI”, Gervais illustrates how advances in technology, from the invention of the player piano to the dawn of the internet, have each resulted in a necessary expansion of rights for music creators. Today however, their livelihood is increasingly coming under threat as they are forced to compete with GenAI platforms that use large language models (LLMs) built upon their own copyrighted works. In many cases, this ingestion of music has occurred with little, or no royalty payment being made to rights holders.
Gervais proposes a new right to remuneration, vested in individual human creators, for the use of copyrighted material in LLMs which are then used to produce competing musical content. This sui generis right would be applied to the output of GenAI platforms rather than the input. A remuneration right of this type would have several advantages:
- The use of creators’ work to advance LLMs could continue essentially unhindered
- Commercial LLM providers would pay for what may be the most valuable input
- Organizations using LLM technology for research could be exempt from payment obligation
- Creators and rightsholders would be appropriately compensated for the use of their life work when it is used to compete with them
“The solution I propose here does not preclude a licensing regime for the reproduction(s) that occur during the text and data mining process,” said Prof. Gervais. “What it does is add a clearly defined, ongoing layer of music creators and rights holder compensation for GenAI systems that produce material in competition with the creators of the copyrighted material on which they were trained.”
The Gervais-authored white paper has been published by Fair Trade Music International (FTMI) in partnership with the International Council of Music Creators (CIAM). It provides a detailed analysis of the current legal landscape for GenAI music and the benefits of a new right of remuneration. The author believes that the creation of this new right provides the best solution to support the ongoing human authorship of creative works and solve the legal issues surrounding GenAI content.
“Songwriters and composers are always quick to embrace new technology,” said Eddie Schwartz, songwriter and FTMI board member. “But GenAI platforms need to operate ethically and keep track of their use of human-created works. A new right of remuneration, vested in flesh and blood music creators, would be a major step towards a sustainable and equitable use of this revolutionary technology.”
In the white paper’s executive summary, Prof. Gervais explains how GenAI applications challenge humans on the very terrain that has distinguished us from other species for millennia: our ability to create literary and artistic works to communicate new ideas to one another, whether as works of music, art, literature, or journalism.
“The aim of this paper is to find a way for creators to retain agency as their life’s work is taken without their consent to create ‘content’ that can compete with them in the marketplace,” said Prof. Gervais.
The white paper is now available to download here.
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