In March of this year, Warner music group made headlines by signing an album distribution deal with Endel, a ‘mood-music’ algorithm, with the deal being reported as the first of its kind. An application designed to create ‘personalized, sound-based, adaptive environments that help people focus and relax’, Endel has the potential to become a case-study for the future of AI created music.

Several questions relating to copyright ownership should be considered in light of this venture, with the nature of who owns the copyright for the works created by the application being a primary consideration. Whilst the songwriters credited to Endel’s work are the six employees of the company, even the founder of Endel Oleg Stavitsky recognises the weirdness of the situation; “I have songwriting credits… even though I don’t know how to write a song.”

This situation creates a range of potential issues, such as determining the genesis of a song. If AI software creates a song from a range of inputs, then who becomes the owner of the resulting product; the creator of the software, or the artist who created the inputs?

As we traditionally understand copyright, the likely answer falls to the creator of the software. The work was not an original creation by the artist in question and as such, no copyright is vested in the work. However, the precedent in Australia could be held to suggest that no such copyright protection is provided: the Federal Court ruling in Telstra Corporation Limited v Phone Directories Company Pty Ltd suggests that works created by computers where the author cannot be ascertained do not qualify for copyright protection. Indeed, s 32(4) of the Copyright Act 1968 (Cth) similarly suggests this through reference to a ‘qualified person’ in which copyright subsists, defining it as an Australian Citizen or person residing in Australia.

The problematic elements of this in part have been recognised by the Australian government. The department of Communications and the Arts recently put a call out for public submissions under the Copyright Modernisation consultation in an effort to understand what is required for the future of copyright. Whilst submissions have closed, the pending report will be some indication of what the future may hold.

As our understanding of AI technology and its underlying neural networks increases, it seems apparent that these issues will only become more pressing in the future. Whilst the deal is for distribution only (with Warner purportedly ordering 20 albums worth of tracks from Endel created  ‘at the click of a button’), it does not change the fact that the deal highlights a potential major turning point in the future of the music industry. As the popularity of algorithm-based streaming playlists continues to grow, and in light of the increased scrutiny on streaming services to correctly proportion royalties, creation of bulk music at a reduced cost to labels could prove to be extremely valuable.

For now, only time will tell how this will develop, but in an exciting field with limitless potential, it is worth keeping a close eye on the ever-expanding relationships between technology and music.

Thank you to our intern Nathan Dorman for this article.