Use of Artificial Intelligence to Determine Copyright Liability for Musical Works

Abstract

This article explores the use of artificial intelligence to help define the current test for copyright infringement. Currently, the test for copyright infringement requires the jury or a judge to determine whether the parties’ works are “substantially similar” to each other from the vantage point of the “ordinary observer.” This “substantial similarity” test has been criticized at almost every level due to its inconsistent nature. Artificial intelligence has evolved to the point where it can be used as a tool to resolve many of the current issues associated with the “substantial similarity” test. Specifically, courts would no longer have to rely on a battle of the experts or the use of lay observers to determine if a work is substantially similar to another work. Using a new test based on the “ordinary AI observer” copyright infringement can be established using a means that is both less biased and more fact driven while giving alleged infringers a means by which to check ex ante if their work could be infringing.