The Canadian Federal Court is being asked to declare that only humans, and not artificial intelligence, can be considered authors under Canadian copyright law.
This is the first court case in the country to consider how copyright law treats artificially generated content, such as text, images and videos created by systems such as ChatGPT.
David Fewer, director and general counsel of the Samuelson-Grushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, said one of the goals of the clinic's filing is to “establish from the ground up” that, under the law, only humans have authorship.
Given the amount of content being generated by AI, Fewer says now is the time to do so.
He said AI and copyright are at a tipping point and that we are at the beginning of a wave of content that is “generated by AI rather than humans.”
“It's important to have regulations in place at this point, just before this substance is widely commercialized.”
Copyright law gives powerful rights to humans, and it's important not to extend those rights to “non-humans, to things that don't need an incentive system, that don't deserve the rewards that copyright gives to their authors,” Fewer argued.
The suit challenges a two-year-old registration by Indian intellectual property lawyer Ankit Sahni, who used AI to combine his own photo of a sunset with Vincent van Gogh's painting “Starry Night,” according to court filings.
Sani then tried to register his work, “Suryast,” with copyright registries around the world. In December, the United States Copyright Board rejected the registration. The status of the registration in India is unclear.
In Canada, where the Canadian Intellectual Property Office grants copyright applications immediately and without verification, “Suryast” was granted copyright registration in 2021, according to the filing.
A spokesman for Innovation Canada, whose intellectual property office is based, said the system is set up so that the courts decide who owns the copyright.
“Any person who believes that a work has been registered in violation of the Copyright Act may apply to the Federal Court, which may issue an order removing the entry from the register if that is an appropriate remedy.”
A spokesman said the Intellectual Property Office “does not take a position on these issues.”
An India-based law firm listed under Sani's name in court documents did not respond to a request for comment by deadline.
The registration with the Canadian Intellectual Property Office sets a precedent for the office to recognize AI-created works, “and brings Canada to prominence as one of the few jurisdictions in the world that recognizes copyright in works 'created' by AI,” the application argues.
This is one issue currently under consideration by the federal government, which is determining how artificial intelligence should be treated in copyright law.
The issue of AI copyright was central to the recent consultation on AI and copyright, with the government saying it was open to considering different approaches.
This included both clarifying that copyright protection only applies to human-created works, and an approach that “AI-generated works may enjoy the same copyright protection as human-created works.”
During the consultation, Canadian creators and publishers called on Ottawa to take action against the unauthorized, and usually unreported, use of their content to train generative artificial intelligence systems.
Unlike in the United States, where numerous lawsuits have been filed, Canadian copyright holders have so far avoided challenging the use in court.
Few people found that surprising.
“Key Canadian stakeholders may be waiting to see if Parliament takes action in its recent consultations” or may have decided that pursuing a licensing system is a better approach, he suggested.
This report by The Canadian Press was first published July 13, 2024.