This chapter discusses the interface of artificial intelligence (AI) and intellectual property (IP) law. It focuses on the protection of AI technology, the contentious qualification of AI systems as authors and/or inventors, and the question of ownership of AI-assisted and AI-generated output. The chapter also treats a number of miscellaneous topics, including the question of liability for IP infringement that takes place by or through the intervention of an AI system. More generally, it notes the ambivalent relationship between AI and the IP community, which appears to drift between apparent enthusiasm for the use of AI in IP practice and a clear hesitancy toward catering for additional incentive creation in the AI sphere by amending existing IP laws.

This chapter introduces the research, justifies the methodological choices and outlines the structure of the book.

The difference in the relative bargaining power of musicians and their corporate partners not only has consequences for the negotiation and formation phase of the contract, but also for its performance, consisting of the exploitation of protected content and the ensuing remuneration. Unfair situations may arise in both respects. This chapter analyses to what extent the legal framework intervenes – and should intervene. First, it reviews exploitation obligations, both in terms of the existence and scope of a duty to exploit and the possible limitations to the content of exploitation activities. Subsequently, the requirement of ‘fair’ remuneration, the available tools for ex post contract adjustment and legislative measures seeking to enhance transparency in the music value chain are scrutinised. The chapter then moves on the performance stage of contracts in secondary relationships, before making a case for a harmonised residual remuneration right for digital exploitation, and concluding.

This chapter crosses the bridge from music industry practice to the analysis of the legal regimes deemed most relevant in securing a fair(er) balance in music contracts in the streaming age. Particular focus lies with the effect of the law on contracts entered into between musicians and record companies and/or music publishers as to individually managed exclusive rights. First, the chapter analyses the role of the legal framework in achieving this book’s policy objective of moving towards a fair(er) balance in the streaming age, fleshing out both the substantive and procedural dimensions of what may be perceived as ‘fair’ in this particular context. It then goes on to provide a typology of the relevant legal regimes, categorising these limitations to parties’ freedom of contract in terms of substantive, geographical and temporal scope and analysing the interplay between them. Finally, the chapter sets out to establish the appropriate level(s) and method(s) of further potential policy initiatives aimed at contributing to the elusive fair balance that this book advocates.

Both corporate partners and musicians may have valid reasons for wanting to terminate a contract. Forcing them to uphold the contract curbs party agency. Relevant reasons may include the aim of avoiding undue investment in an artist who has proven to be commercially unviable, the wish to escape unfair situations in terms of rights transfer, or cases of (perceived) unfairness in terms of exploitation and/or remuneration. The excessive duration of a contract may in itself also give rise to problems. On a more general level, the exclusive nature of many music industry contracts sits uneasily with the vision of musicians as independent, creative actors. This chapter reviews how the selected substantive legal regimes affect parties’ possibility to terminate the contractual relationship. First, the chapter reviews potentially applicable limitations on contract duration, as well as grounds for termination on the basis of breach of contract. Taking a more practical view, the consequences of contract termination are then assessed in order to gauge whether these consequences may amount to switching costs that prevent the termination of contracts in practice.

In practice, there are several obstacles to the application of the substantive legal framework analysed in the previous chapters. First, there is a risk of contractual provisions that deviate from the legal norm. The qualification of certain rules as mandatory law may prevent such contractual deviation. Even so, effective recourse to the protective regimes throughout the course of the contract is not guaranteed. Reference may be made to the possibility for corporate partners to have recourse to trade secret protection and the apparent limited invocation of the protective legal framework. Collective enforcement may contribute to enhanced transparency throughout the music value chain and counter musicians’ fear of commercial retaliation. Further bolstering extra-judicial enforcement is likely to fulfil an important complementary role.

This chapter brings together the research findings and answers the main research question, namely how the legal framework can contribute to a achieving a fair(er) balance between the interests of musicians and their main corporate partners. It summarises the potential bottom-up initiatives, as well as the possible regulatory action identified throughout the book.

This chapter first analyses the rights and interests of the primary stakeholders in the music industry and introduces the various contracts entered into between musicians and their corporate partners. It then discusses the music value chain that results from such contracts in the streaming age. Two separate subsections are dedicated to, respectively, the division of revenues and the ongoing quest towards enhanced transparency. A concluding ‘bridge’ brings together the most relevant findings that lead into the analysis of the relevant legal framework in the subsequent chapters.

This chapter analyses limitations to parties’ freedom of contract as to the negotiation and formation stage of the contracts under review, that are aimed at remedying situations where musicians grant excessive rights to corporate partners. These limitations seek to ensure that such contracts have a ‘fair scope’. As yet, awaiting potential EU harmonisation of authorship and initial ownership, there are no relevant harmonising rules at the EU level. Instead, focus lies with restrictions under national law. First, objectionable precontractual behaviour may be sanctioned by precontractual liability, giving right to damages. Subsequently, the requirement of consent is subject to certain requirements. Third, the law limits parties’ freedom as to the scope of rights that may be transferred or licensed and provides tools to determine this scope in practice. Finally, the chapter turns to the negotiation and formation stage of secondary contractual relationships that may arise once the initial contract has been entered into. It concludes with an overview of the main findings.

INTRODUCTION

• 1. In a way, it is currently ‘the best of times’. While some aspects of our present-day society could definitely be characterised as ‘the worst of times’, technological innovations have revolutionised our way of living and have changed many things for the better. It is simultaneously the epoch of belief and incredulity, where we revel at machines that are seemingly able to create artistic works and, even, invent. The interface of AI and intellectual property (IP) law is readily apparent and the possible topics of this chapter are manifold. This chapter provides a bird’s-eye view of the current status of research into some of the relevant legal issues from a primarily EU, civil law perspective. The present extensive introduction further delineates the topic (part 1). It includes a brief analysis of the possible uses of AI as a tool in the IP sector as well a detour along the essentials of IP law. The two-pronged substantive body of the chapter analyses the main legal challenges raised by AI – primarily machine learning AI – in an IP context. First, focus lies with the IP protection of AI technology under patent law and copyright law (part 2). Subsequently, attention shifts to the IP protection of output generated through or by an AI system (part 3). Could such output be susceptible to IP protection under copyright and/or patent law? If this is not the case, should it, and, if so, who could or should own the rights, and what should the modalities of protection be? Without providing the final answer to these questions, the conclusions of this chapter (part 4) caution against unreservedly tearing down the foundations of IP protection for the mere sake of additional incentive creation.

• 2. AI is a multidimensional, evolving concept with different possible definitions, as explained in chapter 1, part 2 of this book. In this chapter, we will look at AI as the science and engineering of ‘making intelligent machines’, of ‘making computers do things that require intelligence when done by humans’. However, AI algorithms do not function in the same way as the human brain does – in other words, computers do not ‘think’ as we humans do.