Merlin, the global licensing body for independent labels and publishers, has issued a blanket statement declaring that its members’ music can’t be used to train AI without “explicit written authorization.”
“It is Merlin’s position, and that of its members, that any and all uses of Merlin member repertoire for training, development or implementation of AI models and related purposes requires explicit written authorization from Merlin or the applicable Merlin member,” Merlin said in a statement issued on Monday (December 16).
Major music companies Sony Music Group and Warner Music Group issued similar letters earlier this year.
The Sony and Warner letters were responses to the European Union’s finalization of the AI Act, a sweeping law regulating the development and use of AI. The Act includes an “opt-out” clause that requires copyright holders to declare they are opting out of having their content used to train AI.
Sony sent its letter in May to around 700 AI developers and music streaming services, noting that the music company has “reason to believe that you and/or your affiliates may already have made unauthorized uses” of Sony’s intellectual property in training AI.
Warner’s letter, issued in July, declared that “all parties must obtain an express license from WMG to use… any creative works owned or controlled by WMG or to link to or ingest such creative works in connection with the creation of datasets, as inputs for any machine learning or AI technologies, or to train or develop any machine learning or AI technologies (including by automated means).”
However, Merlin’s letter focused less on EU law and more on the legal argument in the US over whether using copyrighted music and other content to train AI amounts to “fair use” – a common defense used by AI companies that have been sued by copyright owners.
Suno and Udio, the two generative AI music-making apps sued this year by the recording majors, have made “fair use” the centerpiece of their defense. They admit that they likely used copyrighted music to train their AI but argue that they were within their rights to do so.
“The legal test for fair use involves four criteria, relating to the purpose and character of the use, the nature of the copyright work, the amount used, and the effect upon the market or value of the copyright work,” Merlin said in its statement. “Unlicensed commercial AI models fail on all four.”
“Any and all uses of Merlin member repertoire for training, development or implementation of AI models and related purposes requires explicit written authorization from Merlin or the applicable Merlin member.”
Merlin
Merlin argues that any scraping of copyrighted music to train AI involves copying that work first, and that “invariably, these copies are used for commercial purposes.”
The organization further argues that generative AI trained on copyrighted music “pose[s] a significant threat for Merlin artists’ copyrighted sound recordings by creating directly competitive digital music files.”
And while the newly generated AI tracks may be “transformative… even transformative uses need to take into account the impact on the original works, and the extent to which they are substitutional for the original,” Merlin stated.
“Merlin recognizes the enormous power of AI and its benefits to the creative community and society as a whole; but, if AI is left unregulated, the impact on the creative industries and, by extension, global culture will be devastating.”
Merlin and its members “are ready to partner with AI companies that want to be on the right side of history – those that are willing properly to compensate Merlin members for use of their repertoire and to include appropriate guardrails to protect Merlin members’ rights,” the statement continued.
One problem in enforcing copyright law on AI models is what has often been called the “black box” of AI training – developers often don’t disclose what was included in the vast datasets ingested to train their AI algorithms.
To address this problem, Congress members have introduced several bills requiring greater transparency in AI training materials.
Sen. Peter Welch, a Vermont Democrat, introduced the most recent of these bills in the Senate last month. The Transparency and Responsibility for Artificial Intelligence Networks (TRAIN) Act would give rightsholders the ability to request an administrative subpoena from a US federal court that would require an AI developer to disclose their training materials, provided the rightsholder has a “good faith belief” that their intellectual property was used to train that AI model.
A separate bill, the Content Origin Protection and Integrity from Edited and Deepfaked Media Act (COPIED Act), was introduced in the Senate earlier this year. It would make it unlawful to use copyrighted works to train AI without permission – a key ask of many music industry organizations and companies.
Read the full letter outlining ‘Merlin’s Position on AI’ below.
Merlin’s Position on AI
Merlin is the independents’ digital licensing partner. Merlin’s primary function is to enable innovative and properly-compensated uses of its members’ music. This is clearly demonstrated by the partnerships Merlin has in place with so many of the world’s leading digital services.
All of our partnerships have one thing in common: our partners value music. While our partnerships have evolved over the years, they respect the human artistry involved in creating music and the financial investment needed to nurture, distribute and market it. The rapid evolution of artificial intelligence (AI) does nothing to change that.
Merlin and its members have always embraced and adapted to technological change, while ensuring that the value of human creativity is respected. Artistic expression is a fundamental part of what makes us human. The ability to create, appreciate, and enjoy art, in all its forms, is foundational to the human experience. Music, in particular, brings people together, evokes emotions, and helps us express thoughts and feelings.
Merlin recognises the enormous power of AI and its benefits to the creative community and society as a whole; but, if AI is left unregulated, the impact on the creative industries and, by extension, global culture will be devastating.
Merlin believes that, when developed and implemented responsibly, AI technologies can be additive to the creative landscape. AI products that aid human creativity, or provide new opportunities for artists to create and collaborate in developing new original works, are products that Merlin supports. Merlin and its members are ready to partner with AI companies that want to be on the right side of history – those that are willing properly to compensate Merlin members for use of their repertoire and to include appropriate guardrails to protect Merlin members’ rights.
However, Merlin cannot support any product, regardless of its purpose, that has been trained on Merlin members’ music without permission.
Merlin’s members, and the independent labels they represent, number in the thousands. These are not multinational corporations. They are often small businesses operating in support of artists who shape contemporary culture around the world, and who are trying to earn a living in an increasingly challenging environment. Unlicensed use of these artists’ work creates a genuine and imminent threat to artists’ livelihoods and the livelihoods of those who work to support them.
It has been suggested that training of AI models on artists’ work without permission should somehow be considered “fair use”. We believe it is the exact opposite of fair, both morally and legally.
The legal test for fair use involves four criteria, relating to the purpose and character of the use, the nature of the copyright work, the amount used, and the effect upon the market or value of the copyright work. Unlicensed commercial AI models fail on all four. Any AI company that trains its models by scraping the internet for copyright-protected sound recordings is making unauthorized reproductions of entire copyright works. Invariably, these copies are used for commercial purposes, and the AI-generated sound recordings resulting from the models pose a significant threat to the market for Merlin artists’ copyrighted sound recordings by creating directly competitive digital music files. There is much talk about these uses being fair merely because the outputs are “transformative”, but even transformative uses need to take into account the impact on the original works, and the extent to which they are substitutional for the original. In the case of AI-generated music, the substitutional impact is obvious.
Taking someone else’s creative work – without permission, without compensation, and with the specific purpose of using that work to create new works that are substitutional for the original – is inherently not fair use.
In seeking to license their music, Merlin members and their artists are not leveraging their copyrights to gain an unfair advantage. They are doing their best to earn a living and to protect rights in their expressive works. This is no different to how AI companies and their investors would, we assume, look to copyright and other IP law to protect against any unauthorized uses of their technology. AI companies are rightly protective over their models and proprietary software, yet some seem to view other people’s intellectual property as “free data” to feed their algorithm.
It is Merlin’s position, and that of its members, that any and all uses of Merlin member repertoire for training, development or implementation of AI models and related purposes requires explicit written authorization from Merlin or the applicable Merlin member. Merlin’s policy is clearly displayed on its website at https://merlinnetwork.org/policy-on-ai/.
If you are a responsible AI company that seeks to use independent music to train a model, or to offer a product or service that is additive to the music ecosystem and has intrinsic creative benefit to music creators, please contact us at ResponsibleAI@merlinnetwork.org.Music Business Worldwide