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Generative art and UK copyright law - good news

One of the things you can do with SuperCollider is write computer programs that automatically generate music. So, for example, when we did the sc140 compilation of generative music tweets, we published a set of very short computer programs, many of which had some randomness in them so every time you run it you get a different musical output.

Fantastic eh? But there's a problem, one that we've discussed among ourselves: copyright only applies to things that are put in "fixed form". That idea, of "fixed form", is crucial to understanding copyright - for example, it's why you can't copyright an idea (we have patents instead, for ideas). Often, the fixed form is writing something down. For music, it might mean writing the score down or recording the audio - those involve different sorts of copyright actually, but they both create copyright, making something concrete.

So what's the problem? Generative music creates a new score each time, and new audio each time. The underlying program might stay the same, but because of the randomness built in, the music doesn't really have a fixed form in the traditional sense.

Well, to be honest, the discussion on the SuperCollider list ended up slightly despairing, with the consensus being that we could copyright the program that generated the music, but then if we publish the program and some arbitrary person runs the program to generate some music, we would have no control over what they might do with the music that came out of it. We couldn't even require them to say that our code was responsible for making it. For an analogy, think of a word-processor: do the people who make word-processors have rights over the documents you write? No. But in our case, we felt that the difference was that it was our creative/artistic effort that was represented in the output - not the efforts of whoever happened to press the "Go" button.

As far as we knew, the law was not able to help us. Of course, generative art is a bit of a niche affair and a recentish conceptual innovation, so it wouldn't be surprising if the law wasn't drafted to help us.

But following a tweet about a generative artwork made of wild flowers, I was alerted to the fact that in the UK, UK copyright law defines a category of "computer-generated work", where the copyright can be attributed back to the author of the program! See this quote:

Interesting questions arise in the context of computer-generated art works. It is important, first, to distinguish between "computer-generated" and "computer-aided" works. Computer-aided works do not receive special treatment under the CDPA. This is the case where the work is largely generated by a human author, although a computer is used incidentally in order to facilitate the task. An example is a book written on a word processor. The computer is a labour-saving tool. Section 178 of the CDPA defines a computer-generated artwork as one generated by a computer in circumstances such that there is no human author of it. Provided it is original and satisfies the other relevant criteria for copyright protection discussed earlier, a computer-generated work can benefit from copyright protection. However, the interesting question is who the author of the work for copyright purposes is--section 9(3) of the CDPA provides that in the case of a computer-generated work, the author shall be taken to be "the person by whom the arrangements necessary for the creation of the work are undertaken". It is a point of debate as to what precisely is meant by the ambiguous words "the person by whom the arrangements necesary for the creation of the work are undertaken".
"Art and copyright", Stokes, S. (2001), Section 5.2 (p88)

The author discusses the issue a little futher, mentioning a case (under an older act) "Express Newspapers plc v. Liverpool Daily Post & Echo plc", in which the programmer was ruled to be the author of some generative text.

For computer-generated work, the duration of copyright protection is 50 years from when the work was created. This is specifically about UK law and I don't know what equivalents there may be internationally, but from my point of view this is extremely good news for people who make generative music and other generative art. Which happens to include me.

Many thanks to Copyright Girl (Emily Goodhand of Reading University) for the pointer to this information! Remember that of course I'm not a lawyer and I've no idea if she is ;)

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