The internet nearly broke the South African music industry, and it was the law that saved it, specifically copyright law. Now the industry is again in peril, this time from artificial intelligence (AI), but it will survive – provided the law comes to the rescue once again.

This is according to music industry expert Advocate Nick Matzukis, a guest speaker at the University of Pretoria’s (UP) World Intellectual Property (IP) Day celebration on 30 May. IP and music was the topic of the event, which was held at the UP-Javett Art Centre and highlighted the power of IP in “protecting the work of visionaries”, to quote Advocate Lawrence Baloyi, Head of Contracts and Innovation at the University.

“The music industry will survive,” Advocate Matzukis said. “The answer is that the law must come to our assistance.”

Other speakers were Paballo Masite of the National IP Management Organisation; Emmanuel Okeke, an IP attorney from law firm Eversheds Sutherland SA; and Zamile Mzizi-Khuzwayo, manager of the UP Symphony Orchestra. Musical performances were presented by saxophonist Jeph Nomvete and vocal-keyboard duo Tristan Smith and Nelson Manganye.

AI, copyright and the music industry

It is important to understand the nature of copyright legislation in order to understand the nature of the threat that AI poses to the music industry, said Advocate Matzukis. Currently, copyright in South Africa is governed by the Copyright Act of 1978, which was last amended in 2002 and, although out of date, is “still a good act” he added. Now, however, it is being amended through the Copyright Amendment Bill, with one amendment in particular causing consternation in the music industry – the proposed introduction of the “fair use” legal concept that has caused uncertainty and upheaval in the music industry in the US, where it already applies.

“Fair use must not happen here; let’s hope the Constitutional Court gets fair use right,” said Advocate Matzukis, referring to the court’s decision, which is expected later this year.

The bill, which has already been passed by both houses of Parliament, was referred to the Constitutional Court by President Cyril Ramaphosa because of concerns over aspects of its constitutionality. Advocate Matzukis said the amended bill seeks to replace the fair dealing provision of the current Copyright Act with fair use.

Fair dealing versus fair use

While both fair dealing and fair use provide for exceptions where someone’s copyright can be used without their permission, there are major differences between the two concepts.

“Fair dealing is clear, certain and defined,” Advocate Matzukis said, which was why it has been the subject of little if any litigation.

With fair dealing, it is not necessary to obtain the copyright owner’s approval to use material for research, private study, reporting on current events, reviews and judicial use. Importantly, the burden of proof is not on the copyright owner but on the user. Fair use, on the other hand, is an “an open-ended, vague, wishy-washy concept”, he added, that resulted in much litigation in the US and places the burden of proof on the copyright owner instead of the alleged infringer.

The advent of AI has further complicated the question of copyright because AI makes it so easy to adapt someone else’s lyrics, compositions or recordings.

“AI is going into databases and copying the ones and zeroes,” Advocate Matzukis said. “It is learning from them and spitting out this ‘new’ thing.”

While the fair dealing provision could protect the copyright owner’s rights in such instances, fair use takes it away, he added.

In South Africa, the combination of fair use and AI – which he referred to as “a wild beast” – could significantly harm the economic rights of music copyright owners, potentially depriving them of much of the protection they currently enjoy through the fair dealing provision.

Asked if he thought it likely that the Constitutional Court would agree that the fair use concept was unconstitutional, he said he could not predict the outcome, although it seemed likely that the court would send parts of the Copyright Amendment Act back to Parliament.

Ultimately, the best solution for the music industry would be to get AI generators around a table with the music industry, Advocate Matzukis said.

“We need to make them our friend. That is how Napster became Spotify. It is not all gloom and doom.”