Artificial Intelligence and Music Industry

One of the most striking developments in the music industry in 2023 was the release of the song “Heart on my Sleeves” by an anonymous user named “Ghostwriter” using the AI-created voices of world-famous singers Drake and the Weekend. However, the song “Heart on my Sleeves” did not exist in the music market for a long time due to the removal of the song from the relevant platforms after Universal Music filed a notice of intellectual property infringement. Although the song was removed from the relevant platforms upon Universal Music's request, the complexity of the issue has led to much debate as to the copyright implications and basis of the request.

If a similar situation were to occur in Turkey, the provisions of the Law No. 5846 on Intellectual and Artistic Works (“LIAW”) would need to be carefully examined. In a hypothetical case where a musical work that has been publicized but has not yet been performed is performed by the use of a voice that does not belong to any real person and is created entirely by artificial intelligence, the right of representation of the owner of the musical work regulated under Art. 24 of LIAW would likely be infringed the first place among other economic and moral rights of the author. In fact, according to the last paragraph of Art. 24, the right of representation may not be exercised by natural and legal persons without the written authorization of the author or, in case the author is a member of a collecting society, of the collecting society within the framework of the powers specified in the authorization certificate. It should be particularly noted here that Turkish law does not have the compulsory license system that exists in some jurisdictions, such as the United States, which allows a musical work that has been released to the market to be performed as a cover by paying the license fee determined by law without the need to obtain the consent of the author. Therefore, the performance of a musical work that benefits from copyright protection is only possible with the consent of the owner of the musical work or the authorized collecting society. Covering the musical work by artificial intelligence without such consent would constitute the violation of the author's rights.

Slightly different from the hypothetical situation above; in the event that the voice of the performing artist who has previously performed the musical work is changed by artificial intelligence but still performed in a way that resembles the voice of the performing artist who performed that song, both the right of representation of the owner of the musical work regulated in Art. 24 of FSEK in the first place as stated above and the neighboring rights of the performing artist regulated in Art. 80 of FSEK will be violated. Indeed, Art. 80 stipulates that performing artists have the right, independently of their economic rights and even after the transfer of these rights, to demand that they be recognized as the owner of their performances in relation to their identified performances and that their performances be prevented from being distorted in a way that may damage their reputation. Therefore, in this case, in addition to the right of representation of the owner of the musical work under Art. 24 LIAW in the first place, there may also be a violation of the neighboring rights of the performing artist under Art. 80 LIAW.

On the other hand, in a hypothetical situation where a musical work that did not exist before is created by artificial intelligence by using the voices of real people should be evaluated from personality rights perspective. If the voice of a person, which is protected under Articles 23, 24 and 26 of the Turkish Civil Code, is used without authorization, a violation of personality rights may arise. In order for a violation of personality rights to arise, it is not obligatory for the person whose voice is used to be a public figure or a professional singer.  However, in the event that the voice of a performing artist who is famous for his/her voice and is recognized as a professional singer is used without his/her permission, in addition to the personality rights protected under Article 23 et seq. of the Turkish Civil Code, the rights which are referred as “the commercial dimension of personality / asset dimension of personality” in Turkish law that correspond to the terms “right of publicity” in the United States, “passing off” in the United Kingdom, may also be violated. This situation may also create unfair competition which is addressed in Article 84 of LIAW.

As can be seen, the use of artificial intelligence at various levels can lead to copyright infringement in various respects. Countries may need regulation in the face of new developments such as these. For example, in Tennessee, a state known as the music capital of the United States, recently enacted the Ensuring Likeness Voice and Image Security Act, also known as the “ELVIS Act”, prohibiting artificial intelligence from mimicking singers' voices and is expected to take effect in July 2024. Although this issue is not currently debated in Turkish law, it may be considered to include provisions regulating such effects of artificial intelligence in the digital copyright law, which is on the agenda of the legislator.

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