Droit d'A.I.?

Plus: Sour notes in Hollywood; opening up science; and more

The World Intellectual Property Organization this week issued a request for comments on whether copyright, patents or other intellectual property rights could or should be extended to works produced by artificial intelligence. The notice comes as part of a public consultation the United Nations agency launched back in September, and the comments will be used to refine its working draft (pdf) of the topics and questions to be addressed in the next, formal policy-development phase of the consultation beginning in May 2020.

The WIPO consultation parallels a similar process underway at the U.S. Patent & Trademark Office, which issued its own request for comments on the same topics in October. Other countries have also begun wrestling with questions of authorship and ownership in the emerging era of machine creativity.

The formal inquiries are at a very preliminary stage. Both WIPO and the USPTO acknowledge in their requests for comment that they are still trying to figure out what question they should even be asking and how they should be framed.

But those questions are getting increasingly urgent, at least in commercial terms. The PTO inquiry, for instance, was prompted in part by the filing of a pair of patent applications by a group of academics and attorneys that listed an A.I. system as the inventor.

U.S. patent law requires that patents must list only "natural persons" or "individuals" as inventors. But patents with the wrong or no inventor listed can be deemed unenforceable. Were an A.I. to discover some new blockbuster drug or invent a new type of battery real money could be at stake.

Similarly, a growing number of musical compositions and recordings used in advertisements, short-form videos and television productions are being produced by A.I. systems, displacing the work of human composers. A portrait produced by A.I. sold at auction last year for $432,500, despite some dispute over whether the people selling it actually had the right to do so.

Yet, while increasingly urgent in commercial terms, it’s not clear those questions can be answered in purely commercial terms.

Most patent and copyright regimes are premised on using market dynamics to incentivize human creativity and ingenuity by investing the fruits of intellectual labor with something like vendible property rights. But what do market incentives mean to a machine, or a piece of software?

We’re in very new territory here. These are questions of first principles, not markets.

Will the band play on?

Songwriters and musicians have long complained about the paltry royalties they receive from music streaming services. But at least they’re getting royalties.

Not so from a growing number of video platforms that use their music in soundtracks. Variety reports this month that Discovery Networks has informed many of its top composers that, starting in January, they must give up all performance rights for U.S. airings on any of Discovery’s outlets, which include Discovery Channel, TLC, AnimalPlanet, and the Science Channel, among others. Instead, they will be paid a one-time fee for their music with no ability to collect royalties from any future airings.

In addition, Discovery said, composers must sign away their rights to collect royalties from the use of their music in any past shows. If they refuse, their music could be stripped from those shows and replaced with music Discovery owns outright.

Though harsh, Discovery’s terms are not unique. Billboard reports that Netflix and other streaming services are also trying to push composers into similar “buy-out” deals, although Netflix is apparently not yet insisting on it.

The musicians who play the music used in shows are also getting stiffed on video streaming. After contentious negotiations, the American Federation of Musicians reached a tentative deal last month with the major studios that did not include what had been the musicians’ highest priority demand: residuals from streaming.

Why the video hard line? Video producers and distributors these days are locked in an escalating battle for content and paying rapidly rising prices for above-the-line talent. Though music represents a relatively small slice of the overall cost of production it’s a cost that big distributors like Netflix and Discovery still have the leverage to control.

Buy-out deals (Netflix calls them “direct licenses”) are a fixed, one-time cost and allow producers to circumvent the PROs like ASCAP and BMI that normally would be collecting those royalties.

The major studios are also either launching or planning their own direct-to-consumer streaming platforms at enormous expense. Anything they can do to reign in the cost of the content that appears on those platforms — especially variable costs like talent residuals — they will do. Unlike other creative talent in Hollywood, musicians lack a formal union or guild, making them easier to push around. Welcome to Hollywood.

Open science

Donald Trump is no one’s idea of a paladin of scientific inquiry, but rumors have been circulating in Washington, that the Trump Administration is preparing an executive order, allegedly originating in the U.S. Office of Science and Technology Policy, requiring that scholarly articles based on federally financed research must be made freely available immediately upon publication. No embargoes, no paywalls, no subscriptions.

Per the rumors, the executive order would mirror Plan S in Europe, where a coalition of national government agencies and private foundations involved in funding scientific research requires researchers to follow similar open-access publishing standards.

The rumors have not been confirmed by any official source. But leading publishers of scholarly journals, who have been battling the growing open access movement for the past few years, are taking the rumors seriously enough to have weighed in publicly.

This week, the Association of American Publishers, along with a group of more than 135 scientific research and publishing organizations sent a letter to the White House opposing any such open access mandate.

“We write to you with deep concern regarding a proposed policy that has come to our attention that would jeopardize the intellectual property of American organizations engaged in the creation of high-quality peer-reviewed journals and research articles,” the group wrote. “As copyrighted works, peer-reviewed journal articles are licensed to users in hundreds of foreign countries, supporting billions of dollars in U.S. exports and an extensive network of American businesses and jobs. In producing and disseminating these articles, we make ongoing competitive investments to support the scientific and technical communities that we serve.”

This isn’t the first open access rodeo. In 2013 and 2015 Congress considered but never passed the Fair Access to Science and Technology Research Act. Also in 2013, the Obama Administration issued a policy memorandum directing federal agencies with research budgets of $100 million or to submit plans for the development and implementation of public access policies, although by 2019 only 8 of 19 agencies had actually submitted those plans, according to the Government Accountability Office.

Trump has spent most of his first term trying to undo virtually anything and everything Barack Obama accomplished. But perhaps the fact that Obama was unable to implement an open access policy will be incentive enough for Trump to actually get it done.


Music labels and publishers win $1 billion piracy lawsuit against Cox Communications

In what could be a landmark ruling in copyright owners’ long and frustrating battle to impose greater liability for infringement on ISPs, a U.S. district court jury in Virginia this week found Cox liable for failing to take action against repeat infringers using its broadband service. The jury awared damages of $99,830.29 for each of 10,017 music works infringed. Billboard has the story.

Getting back to basics on the Digital Millennium Copyright Act

Speaking of copyright landmarks, the chairman of the Senate Judiciary Committee Thom Tillis (R-N.C.) published an op-ed this week saying it is time to take a new look at the DMCA, which has set the rules of engagement between rights owners and online services since it was passed in 1998. “Technology has changed faster than anyone could have ever imagined, and the existing DMCA simply isn’t able to address these new developments,” Tillis said. He vows a “major new initiative” in the committee next year “to explore ways we can better promote the creative economy in the 21st century. “

Facebook pledges $130 million to fund ‘Supreme Court’ for content

Under fire over for its content-moderation policies and results, Facebook last week said it would put up $130 million to create “an independent board charged with reviewing how the company moderates its content,” and provide long-term backing for the project, the Wall Street Journal reported. Though a lot of money, $130 million is pocket money for Facebook, and it’s unclear whether Facebook is really committed to changing its policies, or is simply looking to park its moderation headaches somewhere else.

Are podcasts threatening the growth of the music industry?

Just when the boom in streaming has things looking up for the recorded music industry a new threat may be emerging. Rolling Stone reports this week that the share of total listening hours consumed by spoken word recordings grew from 20% in 2014 to 24% in 2019, while the share taken up by music fell from 80% to 76%. That may explain why Sony Music is investing in podcasting.

Happy holidays!

We’re off next week. The newsletter will return in the New Year.