Recently, various song videos of "AI Sun Yanzi" generated by artificial intelligence tools have become popular, and the corresponding intellectual property issues have also become a hot topic of media discussion.
First of all, the conclusion is that according to intellectual property law, if the artificial intelligence is trained and the songs are generated by using real human voice, if they are not commercialized, there is a high probability that they will not infringe, but if they are posted on the Internet, they should first obtain the authorization of relevant songwriting copyrights, accompanying music, and video use materials. However, according to the Civil Code, those who use real human voice to train artificial intelligence and generate songs must obtain the authorization of real people, otherwise they are suspected of infringing personal rights. The following is an example of "AI Sun Yanzi" for analysis.
The first question is, does training artificial intelligence with Sun Yanzi's voice require intellectual property authorization?
The answer is: it shouldn't be needed. There is a very interesting legal issue here, text engines such as ChatGPT and image engines such as Midjourney, their operators who use other people's text works and picture works to train artificial intelligence engines, should obtain the permission of the corresponding intellectual property rights holder, otherwise it is infringement. But extracting Sun Yanzi's voice training "AI Sun Yanzi" may not be needed.
The premise of the existence of "AI Sun Yanzi" is that artificial intelligence obtains Sun Yanzi's voice feature data. According to the current working mode of artificial intelligence, the extraction of Sun Yanzi's voice is not using her singing voice from the record, but her speech. There are many voice files of Sun Yanzi on the Internet, such as her interviews, or speeches at conferences and concerts, as long as the voice in these audio and video is extracted and input into the artificial intelligence speech learning engine, after training, Sun Yanzi's voice feature data can be obtained.
The legal nature of Sun Yanzi's audio files is an audio or video recording, and its producer is protected by the rights of the producer of the audio or video recording. As a performer in these audio and video recordings, Sun Yanzi also enjoys the rights of a performer in the content of the audio documents under the Copyright Law. However, the problem is that the rights of producers of audio and video recordings and the rights of performers belong to the neighboring rights under the Copyright Law, and the neighboring rights are weak protection, only the protection of traditional reproduction, distribution, information network dissemination and other acts, there is no bottom, so if there is a use method other than the law, it does not constitute infringement.
AI engines use works in ways that were not yet available when the Copyright Law was enacted: input of voice files into AI engines for training. Therefore, the act is not an infringement of the rights of producers and performers of audio and video recordings.
The material used by ChatGPT and Midjourney to train artificial intelligence engines is text and pictures, and text and picture works are subject to strong protection under the Copyright Law. In addition to the scope of rights listed, there is also a catch-all protection of "other rights that should be enjoyed by the copyright owner". Because of the existence of back-up protection, even if there is no such behavior as training artificial intelligence engines with copyrighted written works or picture works at the time of legislation, it may still be classified as infringing "other rights that should be enjoyed by copyright owners".
The second question is, what intellectual property rights are required to publish the songs covered by "AI Sun Yanzi" online?
Taking the most popular "AI Sun Yanzi" cover of Jay Chou's song "Hair Like Snow" on station B as an example[i], the publisher must at least obtain the following intellectual property authorization:
1. Copyright authorization of the lyrics of "Hair Like Snow".
2. Authorized by the recording producer of the accompanying audio of "Hair Like Snow".
3. The picture copyright of Sun Yanzi's photo in the video.
If "AI Sun Yanzi" covers Jay Chou's song "Hair Like Snow" without any of the above authorizations, there is a legal risk of infringing the intellectual property rights of the relevant rights holders. Some friends may ask, does this publisher belong to personal use under the Copyright Law, which can be used as a fair use exemption? The answer is no. If the publisher uses artificial intelligence to generate a cover work and listens to it himself, it may be for personal use, but publishing it on the Internet is an act of information network dissemination and should be authorized.
Let's discuss another question: the publisher may have used an artificial intelligence engine to replace Jay Chou's singing voice in Jay Chou's original song "Hair Like Snow" with Sun Yanzi's singing, so should it obtain the recording producer right authorization of Jay Chou's "Hair Like Snow" original audio and Jay Chou's performance right authorization? Some reports have quoted experts as saying that "the simulation or even public display of the singer's voice by AI without the authorization of the singer should be an infringement of the singer's performer's rights." [ii]
In this regard, the author's personal view is that, as mentioned above, the performer's right and the sound recording producer's right are both neighboring rights, and the act of replacing the original song in a sound or video recording with someone else's voice by artificial intelligence is not restricted by the Copyright Law, so it cannot be regarded as infringement. Of course, the cover of "Hair Like Snow" by "AI Sun Yanzi" also uses the accompaniment of the original singer, which is suspected of infringement if it is not authorized.
Finally, the above discussed behavior only refers to the current behavior of "AI Sun Yanzi": the spontaneous use of artificial intelligence by netizens to publish songs synthesized by Sun Yanzi. Does not involve the use of synthetic Sun Yanzi's voice songs for commercial promotion, such as selling albums, advertising endorsements, etc., if commercial, it is suspected of violating the "Anti-Unfair Competition Law", whether it is using Sun Yanzi's voice to train artificial intelligence, synthesize songs, etc., are suspected of violating recognized business ethics of unfair competition, if Sun Yanzi protects her rights, the producer and publisher may face high compensation.
The third question, does "AI Sun Yanzi" infringe on Sun Yanzi's personal rights?
The Civil Code of the mainland stipulates that the personality rights of civil subjects are protected by law and may not be infringed upon by any organization or individual. Name rights, portrait rights and voice rights are all part of personality rights, so the related songs posted on the Internet by "AI Sun Yanzi" with Sun Yanzi do involve the protection of personality rights.
The Civil Code stipulates that the right to a name may not be infringed upon by means of theft, counterfeiting, etc. "AI Sun Yanzi" uses the name of "Sun Yanzi" to publish songs with Sun Yanzi's voice synthesized by artificial intelligence, and as far as the part of the name right is concerned, I personally believe that it does not constitute an infringement of theft or counterfeiting.
The Civil Code stipulates that the portrait of the portrait rights holder must not be produced, used or disclosed without the consent of the portrait rights holder. "AI Sun Yanzi" used Sun Yanzi's portrait in the video "Hair Like Snow" in the video, which is suspected of infringement of portrait rights. Although the Civil Code also stipulates that "the use of the portrait rights holder's published portrait within the necessary scope for personal study, art appreciation, classroom teaching or scientific research" is fair use, the act of publishing songs online does not belong to personal learning, nor does it fall within the scope of art appreciation, so it cannot fall within the scope of fair use.
The Civil Code also provides for the protection of the voice rights of civil subjects, including not to produce, use or disclose the voice of voice rights holders without the consent of the voice rights holder. And "AI Sun Yanzi" uses AI technology to imitate Sun Yanzi's voice, and produces, uses, and discloses the voice of the voice rights holder without permission, and its publisher is suspected of infringement.
There have been discussions within our legal team on whether "AI Sun Yanzi" infringes on the right to voice. Some colleagues believe that before the advent of artificial intelligence, there were also people who liked to be good at other people's voices, and sometimes such programs would be broadcast on TV, and everyone thought it was harmless. If people can imitate, why can't artificial intelligence imitate?
In this regard, the author thought for a while, felt that human imitation and machine imitation are two different things, if a person wants to imitate other people's voice, first of all, there must be talent, secondly, there must be training, is a small probability thing that does not often occur, and the general imitation is not necessarily very similar, and the generated imitation voice will not be very much, so it is harmless. And the imitation of artificial intelligence, is the imitation of directly extracting voice data, very similar, the threshold is very low, no talent is required, people who know some computer knowledge can refer to the online strategy can train artificial intelligence to complete imitation, but also large-scale output, this behavior if abused, or very terrible, so the author still believes that it is necessary to obtain authorization.
Finally, from the perspective of intellectual property rights, although there are some controversies in AI, the problem is not serious under the current legal framework. Artificial intelligence is a new thing, and everyone is still tolerant of it, and Sun Yanzi has not taken legal action against "AI Sun Yanzi". But in fact, if artificial intelligence is used to imitate human writing, photos, voice, and video, it will indeed cause ethical problems[iii] and other problems[iv], so while enjoying scientific and technological progress, we must also beware of the negative impact of new things.
The author of this article: You Yunting, senior partner of Shanghai Dabang Law Firm, intellectual property lawyer. The views expressed in this article are those of the author only.
[i]https://www.bilibili.com/video/BV1yv4y1H7wz/?spm_id_from=333.337.search-card.all.click
[ii] https://zhuanlan.zhihu.com/p/626989368
[iii] [iii] https://www.jfdaily.com/wx/detail.do?id=605720
[iv] https://baijiahao.baidu.com/s?id=1761068277334565591&wfr=spider&for=pc
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