What is Generative AI?

Generative AI technology refers to online programs that use massive amounts of 'source data' to generate new content based on user text prompts. These generative AI systems may generate text – answer questions, write stories or code – music, or images.

What legal questions does Generative AI raise?

Generative AI raises foundational issues regarding copyright laws, and it prompts important legal questions concerning copyright and intellectual property rights that affect both programmers and users of generative AI. This includes questions that our courts and legislators must eventually answer regarding the material generated.

What is copyright protection and what works are eligible for copyright?

Copyrighted creative works are original ideas that have been fixed in a form. An idea in someone’s head is not eligible for copyright protection. It becomes copyrighted material if it is an original idea and is 'fixed' - written down, filmed or recorded in such a way that it is tangible.

How long does copyright protection last?

In Canada, the lifespan of copyright protection in most works is 70 years after the death of the author. Once the copyright has lapsed, the work goes into the public domain, meaning that any person can use and exploit the work as they wish.

What is a license and what is copyright infringement?

A license is a grant of rights from the copyright owners with limitations. To use copyrighted material, the user must be licensed by the copyright holder. Using copyrighted material, for commercial purposes or otherwise, without a license is considered a violation of the copyright owner's rights called copyright infringement.

When is a license needed for Generative AI?

Programmers using generative AI tools to produce works must do their due diligence by obtaining licenses for copyrighted material in their source data. Claims of copyright violation are often difficult to navigate, particularly when the claim centers on use of an artist’s style. Direct use of a portion of artistic works is less uncertain.

What are some examples of copyright infringement in AI generated works?

Some AI generated works are instantly recognizable as being 'in the style' of a specific artist, which can lead to claims of copyright infringement. This is also true for AI generated images with key elements of works created by the copyright owner, including some part or all of the original artist’s signature.

How do copyright infringement issues relate to music?

An analogous situation to copyright infringement in AI generated works is the use of samples in the music industry. Samples are excerpts from previously recorded and published songs that another artist uses as part of a new song. Unless the original song has entered the public domain, the sample is copyrighted and cannot be freely used. The common practice in music is for the second artist to enter into a license agreement with the first artist to use the sample.

What further questions exist regarding Generative AI copyright?

Obtaining one or a few licenses for limited samples is possible, but obtaining hundreds of thousands or millions of licenses for the copyrighted works created in the large data sets used by generative AI models might not be. It remains to be seen how the courts and legislators will balance the intellectual property and economic rights of creators and users in the context of generative AI technologies.