Can AI Generated Works be Copyrighted in Canada?
In Part One of this blog series we begin our legal exploration of generative AI (artificial intelligence) looking at training data and rights needed to use the AI data. The general rule is that it is important for programmers to acquire licenses where training data is copyright protected.
The exceptions to this are if the AI training data is now in the public domain or if it is an allowable use of the copyrighted material, such as through the fair dealing exception.
In Part Two we continue our discussion on generative AI, exploring the copyright protections available for generated creative works.
Join Our Community
Be the first to read new articles, industry news, and more. Sign up to our newsletter today!
What Artistic Works are Eligible for Copyright Protection in Canada?
Copyright laws in Canada are governed by the Copyright Act. Copyright subsists in every original literary, dramatic, musical, and artistic work if it meets certain requirements set out in the Act.
The threshold for what is “original” for copyright protection purposes is not particularly high. What is required is an exercise of skill and judgment: the work must be more than a mere copy of another work, but it need not be creative.
In CCH v Law Society of Upper Canada, the Supreme Court of Canada has written the following about the exercise of skill and judgement:
[Skill, means] the use of one’s knowledge, developed aptitude or practiced ability in producing the work. [Judgment means] the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce “another” work would be too trivial to merit copyright protection as an “original” work.
How Does the Canadian Intellectual Property (“CIPO”) Treat Generative AI Copyright?
In 2021, the Canadian Intellectual Property Office (“CIPO”) approved the copyright registration of a work entitled, Suryast. As noted in its application, this work was co-authored by an individual and RAGHAV Painting App, a generative AI system.
While notable, this copyright registration carries little weight and should not be seen as a precedent. At the time that the ai copyright protection was approved, no commentary was provided by CIPO and there is no way of knowing if the AI aspect was considered.
Does Generative AI Exercise Skill and Judgment in Copyright?
We therefore return to the question that is at the core of Canadian copyright jurisprudence: what constitutes an “exercise of skill and judgment”. When it comes to generative AI, skill and judgment can be assessed at different stages.
Is it the programmer’s coding of the generative AI system, the user’s text inputs into the software, or the AI (aka the software) running the code, to which we must look for the exercise of skill and judgment?
How does the US Copyright Office Treat Generative AI Copyright?
Earlier this year, the US Copyright Office (“USCO”) provided a statement that may help guide Canada’s analysis of the issue. On March 16, 2023, USCO released a guide on AI generated works stating that a work created with the assistance of AI may be copyrightable if it involves sufficient human authorship.
This statement aligns with longstanding US copyright law that requires human authorship for a work to be copyright protected. Elaborating on this, USCO states “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘‘traditional elements of authorship’’ are determined and executed by the technology—not the human user”. This explanation, which aligns with the common foundation of generative AI software that relies upon text inputs, illustrates that many current systems do not meet the required human authorship threshold.
However, the US Copyright Office elaborated further giving an example that will constitute human authorship wherein a user “may select or arrange AI-generated material in a sufficiently creative way”. The conclusion, therefore, is that it is the precise way that AI software is used that determines whether the generated work will be copyright protected. If the only human interaction is a text input, then the work is not eligible for copyright.
On the other hand, if the user manipulates the AI generated work into something further – such as through human-controlled editing – then it may be copyrightable.
Are AI Generated Works Eligible for Copyright Protection?
The question of whether generative AI works are copyrightable is clearly at the forefront of many AI-related conversations. As we have now seen in the US, guiding information is beginning to be disseminated on the topic.
Whether through the courts or copyright office, it is only a matter of time until Canada also addresses the question of whether AI generated works are copyrightable. As was similarly asked in part one, a seminal question is how the courts and legislators will balance the intellectual property and economic rights of creators and the pubic in deciding whether or not to allow AI generated works to be protected through copyright.
Part three of this mini-series will continue our look at generative AI and discuss ownership of AI generated content.
© 2023 Edwards Creative Law, LLP – Updated to June 9, 2023
Edwards Creative Law is Canada’s Entertainment Law Boutique™, providing legal services to Canadians, and international clients who partner with Canadians, in the Film & Television, Music, Video Games and Apps, Publishing and Literary industries.
For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.
* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.
Check out our popular blog posts:
Neighbouring Rights in Canada – Being a Musician is a Business
Setting up a Music Publishing Company in Canada
Copyright Protection & Classical Music
Work Made for Hire Explained
10 Co-Production Considerations in Canada – Ask an Entertainment Lawyer
Film Profits & Points – Ask an Entertainment Lawyer
The “Just Trust Me” Legal Agreement