An interesting looking document put out by the Canadian Bar Association (I’m not a lawyer, just an aggressive Google seacher), entitled State of the Arts: How Should Canadian Copyright Law Treat Works Generated by Artificial Intelligence?

From the abstract:

Nothing in the Copyright Act seems to indicate that works generated by AI cannot be original, since the users of AI exercise skill and discretion in selecting appropriate data for the AI to use. Thus, I argue that AI has emerged as an important tool for authors and that the user likely the best candidate for authorship in the work.

I’ll drop in the most interesting quotes I find, but they suggest legislative reform is needed. This direction seems interesting, as I’ve often used the comparison to creative or artistic director:

I propose that the law should adopt an approach to AI resembling that of “makers” in cinematographic work…

In my view, copyright in works created by AI should subsist in the “maker” who is responsible for making the arrangements necessary to create the work…

So this author’s view more or less accords with the UK view.

Okay, so this is interesting, re: the Canadian Supreme Court not relying on the “creative spark” or incalculable “modicum of creativity” discussed in the last post:

On the other hand, they also rejected the “modicum of creativity” approach taken by the Supreme Court of the
United States, and ruled that creativity should not be a prerequisite for originality.16 The Court held that Canadian copyright law should take a middle-of-the-road stance on

originality, and require that a work be an “exercise of skill and judgement” by the author.17 As such, the Canadian conceptualization of originality encompasses aspects of both the product (in that it cannot be a mere copy), and the process (in that it must be an exercise of skill and judgement by the author).

And this:

Although the Court did state that originality cannot result from a purely “mechanical exercise”, it seems that the phrase does not specifically refer to automated processes.22 The Court employs the example of simply changing fonts in a text as a mechanical exercise that would not meet the skill and judgement test. In context, the phrase “mechanical exercise” appears to refer to a trifling or trivial exercise, rather than to the use of automation in the creative process.

I like this:

No doubt the AI’s programmer is the author of the AI’s source code. However, I would argue that copyright in the AI code should not necessarily extend to the works that flow from its use. Doing so would constitute an oversimplification of AI processes, and ignores the fact that an AI’s user (if separate from the creator) provides the data and stimuli required for the AI to perform its function. In essence, the AI code provides a canvas upon which the user-artist can apply their craft.

Technological neutrality concept:

Technological neutrality was recently affirmed by the Supreme Court of Canada as the “recognition that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted or applied to favour or discriminate against any particular form of technology” (emphasis added).42 Thus, it is necessary to apply the skill and judgement test to AI created works in a manner consistent with other modes of producing copyrightable
works.

Okay, here we go, the stuff about cinematic “makers” that I like a lot:

The complexity and collaborative nature of creating a cinematographic work compares well with the challenges posed by AI created works. For cinematographic works, the Canadian Copyright Act states that copyright subsists in the work’s “maker” – which can even be a corporation.45 In relation to cinematographic works, the Act defines a maker as “the person by whom the arrangements necessary for the making of the work are undertaken”.46 Interestingly, the United Kingdom Copyright, Design, and Patent Act deems
the “person by whom the arrangements necessary for the creation of the work are undertaken” to be the author of any computer-generated work.47 In the Canadian context,
it might be more coherent with the remainder of Canada’s Copyright Act to employ a “maker” approach to copyright in works created by AI, rather than using a deemed
authorship stance. This would avoid confusing the concept of authorship with ownership in copyright.48 …

Having copyright subsist in the maker of an AI created work would strike the appropriate balance. Although it would surely strengthen the economic incentives of using
AI for creative applications, in doing so, it would provide a legal framework for the growth of an entirely new creative industry. If one of the objectives of copyright is truly the
“encouragement and dissemination of works of the arts and intellect”, then it would behoove Canadian law makers to ensure that the Copyright Act appropriately reflects
creativity in the 21 st century.55

Interested to see if there are other Canadian sources on this topic!

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