Here is a copy of my submission to the copyright consultation on the implications of AI and IOT on copyright.
Thank you for providing an opportunity to provide input into the Artificial Intelligence (AI) and the Internet of Things (IOT) copyright consultation.
The copyright consultation raises important issues. The government should be cautious before making any amendments to the Copyright Act given the complexity of the issues and the difficulty in assessing how the changes would work in practice.
I am Senior counsel in the Technology Law Group of McCarthy Tetrault LLP. I am the former leader of the firm’s Intellectual Property group. I am one of Canada’s leading authorities in information technology, Internet, copyright and privacy law and am an Adjunct professor of intellectual property law at Osgoode Hall Law School. My bio can be accessed here or here.
The comments below reflect my personal opinions and do not necessarily reflect the views of my firm or its clients.
The government properly recognizes that artificial intelligence raises important questions about whether the Copyright Act (the Act), as currently drafted, adequately achieves the important objectives of copyright, namely creating incentives for the creation and dissemination of works and other subject matter, rewarding copyright owners, and providing access to works and other subject matter.
Providing copyright protection for computer generated works
It is true that copyright protection for works has traditionally been grounded on whether, among other things, the works are original. The concept of “originality” has historically been connected to human authorship. One connotes the other.
Historically in the Commonwealth including Canada, and prior to CCH v Law Society in Canada, copyright could subsist in a work if there was a sufficient amount of skill and judgment, labor or capital that went into producing the work. “Sweat of the brow” was often regarded as sufficient to meet copyright’s originality standard. After CCH, the focus in Canada has been solely on the skill and judgment used in creating the work.
This creates potential challenges for “computer generated works”, being works where there is an insufficient connection between a human author and the resulting outputs of computers or machine processing.
Human authorship has not, however, been the sine qua non for the protection of other subject matter such as sound recordings, broadcast signals, and performers’ performances. Rather, as with the necessary condition for protection of works before CCH, investments in the creation of other subject matter has been sufficient.
There are unquestionably massive amounts of labor and capital being invested in computer generated works. It is thus likely that absent amendments to the Act, such as those in the U.K., that there will be a gap in the protection for creative content that would be protected if created by human beings including human beings using computers to assist in the creation of works. If not protected by copyright, such creations will be easily reproduced and disseminated without authorization, potentially undermining markets for such subject matter.
The government should thus consider whether the objectives of copyright will be met without providing explicit protection for computer generated works.
Remedies for infringement
Canada has a robust framework for assessing copyright infringement including remedies for direct and secondary infringement (including enablement) and accessorial liability principles of inducement and acting in concert.
Generally, persons have been found liable for copyright infringement in Canada even if the infringements result from uses of technology owned or controlled by the persons. This suggests that persons who deploy AI systems that reproduce or otherwise implicate an exclusive right would be held responsible for such uses.
However, there is a line of cases in the U.S., as reflected in the 4th Circuit decision in CoStar Group, Inc. v. LoopNet, Inc., 373 F. 3d 544, that cast doubt on this principle based the supposition that persons that use automated machines are not liable for copyright infringement because they lack the volitional requirement for infringement. This principle is inconsistent with fundamental liability principles. Should this principle be adopted in Canada, then amendments to the Act would be required.
Exceptions for infringement
Artificial intelligence systems, and especially machine learning systems, often use and process data to train their algorithms. This could include, depending on the application, works or other subject matter in which copyright would subsist.
The government should consider whether any new exceptions to infringement are warranted or not based on an assessment of the implications of making or declining to enact new exceptions.
Canada has, under the tetralogy of Supreme Court decisions in CCH, Alberta Education, SOCAN v Bell, and York, a very broad fair dealing framework including fair dealing for the purposes of research. Undoubtedly, certain uses of works or other subject matters in artificial intelligence systems would be a fair dealing for research purposes. Fair dealing is intended as a flexible framework and its application to AI uses would be analogous to its application to other uses.
In assessing the desirability of a new exception for AI, the government should consider how a new exception would impact exclusive rights of copyright owners to authorize the uses of their works and to obtain a just reward for such uses. It should also recognize that AI (and associated technologies) are in their infancy and the difficulties of predicting how a new amendment could be construed in the numerous situations in which it could be applied.
The consultation related to IOT essentially asks whether new exceptions are required for the legal protection of technological protection measures (TPMs) for the purposes of repair and interoperability.
The Act’s provisions protecting TPMs were enacted in the Copyright Modernization Act. These provisions were intended to be consistent with international norms, to strengthen protections against digital piracy, and enable Canadians to realize the full potential of digital marketplaces for copyright subject matter. The anti-circumvention rights in the Act are consistent with those of United States and reflect Canada’s treaty obligations including under the CUSMA.
In assessing the need for any new exceptions for IOT, the government must recognize that IOT covers a multiplicity of growing applications that range from everything from smart home connected devices such as home security and monitoring systems, water shut-off safety systems, appliances, and thermostat control systems (many of which are controlled using connected device protocols and operating systems such as Amazon Alexa, Google Home, Apple HomeKit ) to autonomous vehicles.
TPMs provide essential functions of ensuring that organizations that invest in these sectors can authorize the access and copying of the copyright works and other subject matter such as software systems that fuel IOT to recoup their investments in these technologies.
TPMs also provide essential functions of providing security for the copyright based systems used in IOT systems. In some applications providing a right to circumvent a TPM for the purposes of repair or interoperability could jeopardize public safety, a good example being a right to access systems used in modern automobiles. The government recognized the potential safety, security, privacy, and liability issues associated with “open banking”. Similar and profoundly more challenging issues are raised by providing a right to access the myriad of IOT systems, the data they store and process, and the systems they control.
If the government concludes there are specific problems, limiting the exception to the particular problems would be the cautious approach. There is already ample flexibility to promulgate regulations to address competition in the aftermarket sector in which a TPM is used. The Governor in Council also has the broad power to enact regulations under Section 41.21(2), subject to Canada’s treaty obligations under the CUSMA which require exemptions to be made “only to the extent that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of effective technological measures under the Party’s legal system”.
Some of my views on the issues canvassed in the consultation are also summarized in the article by Christopher Guly, Canada Is Gathering Public Input on Copyright Implications of AI, Internet of Things (CIGI August 13, 2021).
I thank you for the opportunity to provide input into the consultation.
* This blog contains some changes to the actual submission.