Framing AI

The Intellectual Property Section of the Canadian Bar Association, in a letter to Innovation, Science and Economic Development Canada, answers consultation questions related to copyright and generative artificial intelligence.

Text and data mining

Some countries have proposed or are studying text and data mining (TDM) exceptions to copyright liability for AI training purposes. The CBA Section does not propose such an exception, as s. 29 of the Copyright Act already prescribes sufficient exceptions for fair dealing for the purpose of research, private study, education, parody or satire. In addition, s. 30.71 of the Act provides a suitable exception to infringement for the temporary reproduction of works that are essential parts of a technological process.

The CBA letter says that “any amendments to current legislation in Canada would be premature at this time, as the current regime appears more likely to strike a proper balance between copyright holders and users.” Cautious, in-depth study of approaches should be undertaken before any reconsideration of a TDM exception, should advances to technology make that necessary.

“Canada appears to be headed in the right direction, with the proposed Artificial Intelligence and Data Act (AIDA) and the Voluntary Code of Conduct on the Responsible Development and Management of Advanced Generative AI Systems,” the Section adds.

Authorship and ownership of works generated by AI

The CBA letter explains that although there is no explicit statutory requirement for human authorship in Canada, the Copyright Act and jurisprudence clearly suggest human authorship is a requirement for copyright. “Therefore, works created entirely by AI will not qualify for copyright protection.”

Technological tools can and have been used by humans to create copyrightable work in Canada for some time, which means the advent of generative AI changes nothing to the basic definitions and requirements for copyright.

However, the myriad possibilities offered by AI in creative works – with or without human involvement – “has created interjurisdictional uncertainty as to how these works should be treated, whether they can be considered original or copyrightable, and how the authors and first owners of the work should be identified,” the submission reads. But the CBA Section “does not believe that it is currently necessary to clarify that copyright protection applies only to works created by humans, about which the applicable language of the Copyright Act and case law is clear.”

Given that there is no legislative intent or jurisprudence in Canada allowing authorship by computer systems or AI, the Section “does not support creating a new and unique or sui generis right or set of rights for AI-generated works as there is insufficient evidence to suggest that such approach would fully address the presented issues or maintain the proper balance between the rights of owners and users and the public interest.”

As to liability, the CBA submission says existing laws are sufficient at this time but adds developments should be carefully monitored.