Month: March 2022

I wrote this blog post to answer a colleague’s question about copyright for the music for the Microsoft Photos app.

He followed up to ask:

What if the music was created by a machine? The specifics of the track changes based on the time you set for the audio. So the music you end up using is compiled by the machine and not a person. Does that make a difference?

Once again, I am not a lawyer and this is not legal advice.

Software is copyright protected (the code is considered ‘writing’ in the same way that a novel is writing (you can’t copyright a process, but you can copyright how you describe it, which is kind of what code is considered)). So there are two possibilities here:

• The software is creating the music from scratch: it’s programmed with an understanding of scales, chords and instruments. In this case, copyright in what it produces might be the copyright of the software author (see further down); or
• The software is a lot simpler and is merely truncating or time-shifting music “stems,” which were written by a human, and all the software is doing is looping/speeding up/slowing down (chopping and screwing, as the kids say). In which case I think the copyright would reside with the music author. 

I suspect Photos is the latter, and copyright in this instance is with whoever wrote the tunes that Photos is using, regardless of how Photos is messing with the music when you’re playing with it.

Making things worse, music copyright also breaks down into author, performer, and performance copyright elements; I’m really talking about the authorship question here, but performance rights would also depend on whether this ia a modified piece of existing performed music (it’s chopping and screwing an MP3) or if the music is generated by the software. Music copyright is just the worst.

Pertinent to Ingenuity Labs, though: there’s no AI/art jurisprudence in Canada, but literally a few weeks ago the U.S. Copyright Review Board refused to grant copyright to a “true” AI-generated piece of visual art: Paradise Lost: Art Created by AI Is Ineligible for Copyright Protection | McDermott Will & Emery – JDSupra. The US is not Canada, but it’s a common law jurisdiction like Canada and a very influential one, so barring any radical departures elsewhere in the Commonwealth it would likely be what courts here would hew to.

This is where I don’t know as much as I could — I don’t know what distinguishes an “AI” from “normal” software. The decision here is based on there being no human involved in the actual creation; humans being assisted by AI in the creation of works would still hold copyright in those works.

So even in the first example above (a piece of software generating something), I don’t know at what point it’s an “AI”, or when it’s “just software” and the software author would hold copyright.

I also don’t know where the threshold of “AI” and “human assisted” is: depending on the thought and complexity you have to put into the AI for it to generate something, you might cross a legal barrier where on one side you’re a human that’s putting enough creative complexity into the system that you’re still the author; on the other side it’s just the AI at work.

Per the US decision above, a human has to be at the origin of the work for there to be copyright in it: the AI can’t be an author (nor can an AI perform ‘work for hire’ (which is again not a thing in Canada, exactly) since it is not capable of meaningfully entering a contract).

While this is all fun to unpack, ultimately the prior thing holds — if there’s no specific term-of-service language granting you a non-exclusive license to use the asset, it’s just not safe to use.

A colleague asked me for my opinion on the use of music provided within the Microsoft Photos app (bundled with Windows 10/11) the other day, and what I thought was a simple question turned kind of complicated.

Let’s start off by saying I’m not a lawyer and this is not legal advice. And my knowledge of copyright law is that of a punter who’s taken some classes, not somebody who actually works daily in the field and knows it inside and out. I know more than the average person, but I’m neither a copyright lawyer or an academic.

To the best of my knowledge, then:

Can you use the background music provided by Microsoft as part of the Windows-bundled Photos app in your public-facing productions?

The quick answer — the safe answer — is “no.”

As a general rule, if you cannot find language that specifically talks about non-exclusive licensing and allows you to use bundled assets in public-facing work, it’s not a good idea to do it.

There are no shortage of people on the Microsoft (and other) forums asking this exact question about the rights to music bundled with Windows default apps:

https://answers.microsoft.com/en-us/windows/forum/all/do-i-have-permission-to-use-the-music-included-in/c578ca2f-ffd5-4594-a3dc-d54edae5f796

https://answers.microsoft.com/en-us/windows/forum/all/is-the-music-in-microsoft-photos-app-royalty-free/827b2eb6-773c-40d2-b64f-80ee2d725137

From these threads, we can get down into the tremendously unhelpful copyright agreements that Microsoft provides to end users:

https://www.microsoft.com/en-us/legal/intellectualproperty/copyright

This page covers copyright in general, but does not include any information on copyright (or use or licensing) of content that Microsoft provides through its software. If you’re looking for more pretty useless information about copyright and the use of MS products, they have you covered:

https://www.microsoft.com/en-us/legal/intellectualproperty/copyright/permissions

https://www.microsoft.com/en-us/legal/intellectualproperty/copyright

As a point of contrast, here’s a quick example of a similar service that does have some language that seems to make it possible to use their assets.

YouTube makes their copyright conditions clear for the “YouTube Audio Library” — right in the banner image for the Library. It’s not great for accessibility, but the language is right there!

https://www.youtube.com/c/AudioLibraryEN/playlists

You can also find some copyright information at https://support.google.com/youtube/answer/3376882. As it says there,

“Music and sound effects from the YouTube Audio Library are copyright-safe. The Audio Library is found exclusively in YouTube Studio.”

“Copyright-safe” is not a term found in either Canadian or US copyright law, so it’s annoyingly vague to try to guess what it means, exactly. But at least it’s somewhat clear; they also include parameters in the description of each track, such as:

https://www.youtube.com/watch?v=Jx8ls-Y-Keg

“You’re free to use this song and monetize your video, but you must include the following in your video description:
Be sure to attribute the artist.
Music ⓒ – Audionautix”

This is similar to a lot of creative commons language, and is easy to understand and follow. There might be something in there a copyright lawyer could pick apart, but it’s solid footing.

Not so with Microsoft Photos. You’re at sea about whether or not you can use the music they put right there in your hands and encourage you to adopt for your projects.

On its face, this feels wrong… right?

If you’re being given the music with the software, and the software is supposed to let you create photo galleries and movies that you can share, it only stands to reason that you’re allowed to use that music.

While this is probably the case — it’s hard to imagine Microsoft going after people who do this, for PR reasons, if nothing else — that’s still not the law.

Essentially, somebody made that music, and somebody owns the copyright for the music.

It might be an individual, or it might be a company or a client they work for. The law is a bit different in Canada and the US about how “work for hire” functions.

But any way you slice it — somebody owns the copyright to the music, and unless there is something in writing that attributes to you the right to use the music… you don’t have the right to use the music. There is no such thing as an “implied” license. Some cursory poking around at sublicenses doesn’t show much in this space; this isn’t extensive research, and again, there may be experts who know more about this than I do at present, but there’s certainly no obvious and accessible jurisprudence granting exemptions for copyright infringement because a piece of software made it easy or convenient to infringe.

And underneath the surface, there’s not a lot of transparency about where the music in the Photos app comes from. Maybe somebody at Microsoft composed and recorded and produced it, and Microsoft owns it all, lock stock and barrel.

But maybe somebody has licensed it to Microsoft, and that license might change or expire, which means the sublicense (which, I want to be clear, DOES NOT EXIST, we’re just playing around here) that Microsoft grants to the Photos app user would then also expire.

TLDR: if you can’t find up-front and easy-to-understand language in an app or software’s terms of use that explicitly tells you how you can and can’t use assets that come with the app — best not to use them. The chance of a negative outcome might be low, but you’re sailing in uncharted waters.