Music Sampling v Creation of Music by Artificial Intelligence: Is Their Treatment Under Kenyan Law Similar?

Music Sampling v Creation of Music by Artificial Intelligence: Is Their Treatment Under Kenyan Law Similar?

Introduction

Music sampling refers to the act of re-using a sample or portion of another’s sound recording to create a new sound recording.[1] In Kenya, for example, KCB allegedly used “Banjuka” by DNA for their Bankika account promotion while Khaligraph Jones and Willy Paul were accused of sampling Freelancer’s “Bora Uhai” song.[2] Creation of music using Artificial Intelligence (AI), on the other hand, is more technical. It requires the AI application to analyze source material or music fed to its software, find patterns in it and then write original melodies, based on those patterns.[3] This technique was applied in the creation of Taryn Southern’s Album – I AM AI,[4] and in Endel – an AI application used to compose 600 short tracks on 20 albums.[5]

AI has yet to be used to create original music in Kenya. However, this blog piece seeks to demonstrate how music created by AI would be treated under the current Kenyan Laws and to compare its treatment with that of music sampling in order to: (i) address any future problems that may arise with AI adoption in the music industry in the future, (ii) encourage musicians to apply AI when creating music (without fear of their rights being infringed upon) and, (iii) to test whether any amendments have to be made under the law to cater for Copyright issues that may arise with the future application of AI in the music industry.

The blog piece will argue that the treatment of music sampling and music created by AI under Kenyan law would be quite similar. This blog piece will mainly rely on the Kenyan Copyright Act to advance the stated hypothesis.

 

Discussion  

Copyright is an Intellectual Property Right (IPR) provided for/embodied under the Copyright Act of Kenya. Literary, musical and artistic works are some of the works eligible for Copyright under the Copyright Act.[6] Copyright for musical works can be owned by the lyricist, the singer, the record label, the public company, etc. depending on the agreement amongst the relevant players.[7] Under the Act, having copyright on works bestows on the holder certain rights. These rights include the reproduction, translation, adaptation and distribution of the copyrighted work.[8] Artists can bring an infringement claim against anyone alleged to have interfered with any of these rights.[9]

Sampling of copyrighted work may be considered an infringement on Copyright because it interferes with the copyright holder’s rights to reproduce and adapt their work.[10] A “sampler” however, will not face any legal action if they are granted permission by the Copyright holder to use the copyrighted work.[11] The same policy could, logically, be applied to future music created by AI platforms. Should a person be granted permission to use another’s work to create a song using AI, this former would be free from any legal action.

What if the person fails to seek the consent of the Copyright holder? As stated above, without permission, the reproduction, translation, adaptation and distribution of copyrighted work amounts to copyright infringement.[12] In order to prove infringement, one must show that the infringer had actual access to the copyrighted material. Alternatively, one needs to demonstrate that the infringer’s work is recognizably derived from the Copyrighted material.[13] One must also prove that there is overwhelming similarity in the copyrighted work and the source material in question that it would be impossible for two people to differentiate between the two.[14]

The above tests are applied when a plaintiff accuses the defendant of copyright infringement via sampling. The same criteria could be used to ascertain copyright infringement of music created via AI. However, it may be more challenging for the plaintiff to prove infringement through actual access. This is because decoding the AI’s algorithm has been stated to be quite a challenging task. The AI’s algorithm consists of numerical weights and a configuration (neural network), which is difficult to reverse engineer to see what songs it was fed.[15]
The artist might therefore have a tough time proving copyright infringement using the first test.

Regardless, the plaintiff still has the option of applying the second test. This might be a simpler task, if the similarity between the two is clear.

 

Conclusion  

It is clear that the similarities in the legal considerations in the music sampling process and the creation of music by AI could allow both to be governed by the same copyright laws. The laws applied to sampling, could apply to creation of music by AI as well. In theory, any future problems that may arise with AI adoption in the music industry can easily be dealt with without amendments to the Copyright Act. Furthermore, Copyright holders should embrace the application of AI/new technologies in the music industry as the current laws safeguard their intellectual property rights.

[1] Cornell K, ‘Music Sampling: Breaking Down the Basics’ TuneCore, 9 August 2016, https://www.tunecore.com/blog/2016/08/music-sampling-breaking-down-the-basics.html on 14 August 2020.

[2] Mwendwa G, ‘Music sampling and the copyright dilemma’ Nation, 29 September 2018 https://www.nation.co.ke/kenya/life-and-style/buzz/music-sampling-and-the-copyright-dilemma-92514 on 14 August 2020.

[3] Deahl Dani, ‘How AI-Generated Music is Changing the Way Hits are Made’ The Verge, 31 August 2018 https://www.theverge.com/2018/8/31/17777008/artificial-intelligence-taryn-southern-amper-music on 30 July 2020.

[4] Deahl Dani, How AI-Generated Music is Changing the Way Hits are Made, The Verge, 31 August 2018 https://www.theverge.com/2018/8/31/17777008/artificial-intelligence-taryn-southern-amper-music on 29 August 2020.

[5] https://manifesto.endel.io/ on 30 July 2020.

[6] Section 22, Copyright Act (Act No 12 of 2001).

[7] Cornell K, ‘Music Sampling: Breaking Down the Basics’ TuneCore, 9 August 2016, https://www.tunecore.com/blog/2016/08/music-sampling-breaking-down-the-basics.html on 14 August 2020.

[8] Section 26, Copyright Act (Act No 12 of 2001).

[9] Section 35, Copyright Act (Act No 12 of 2001).

[10] Hurvitz L, ‘“Can’t Touch This”: A Comparative Analysis of Sampling Law in the United States and Internationally’ 23 Michigan State International Law Review 1, 2014, 232.

[11] Section 35, Copyright Act (Act No 12 of 2001).

[12] Section 35, Copyright Act (Act No 12 of 2001).

[13] Nairobi Map Services Limited v Airtel Networking Kenya Limited & 2 others (2019) eKLR.

[14] Nairobi Map Services Limited v Airtel Networking Kenya Limited & 2 others (2019) eKLR.

[15] Deahl Dani, We’ve Been Warned About AI and Music for over 50 Years but No One’s Prepared, The Verge, 17 April 2019 https://www.theverge.com/2019/4/17/18299563/ai-algorithm-music-law-copyright-human on 30 July 2020.

 

Image from The Verge

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