On October 12, 2023, the Government of Canada launched an online, public consultation regarding Copyright in the Age of Generative Artificial Intelligence (AI). (Read the consultation paper.) A similar consultation was conducted by the Government of Canada in 2021; however, due to the recent rapid advances in generative AI technologies, the Government is interested in revisiting this issue. For reference, generative AI refers to artificial intelligence capable of generating works (e.g. text, images, music, and other media) using generative models which derive patterns and structure from certain input training data. ChatGPT is a well-known generative AI implementation.
This present consultation is focused on addressing concerns of stakeholders in creative industries, many of whom see AI as undermining their ability to consent to the use of their creative works and to receive appropriate credit and compensation for the same. Meanwhile, the AI industry, generally, is worried about the uncertainty surrounding the applicability of antiquated Canadian copyright laws to works produced by generative AI and the potential chilling effects this uncertainty may have on domestic investment and economic opportunities in AI in Canada.
The consultation will focus on three main categories:
1. Text and data mining (“TDM”) and the training of machine learning models: The main question considered under this category is whether Canada’s Copyright Act (the “Act”) should be amended to clarify how the copyright framework applies to TDM activities. Other questions include how the existing exceptions of fair dealing for research (Section 29 of the Act) and temporary reproductions for technological processes (Section 30.71 of the Act) should apply to TDM activities.
2. The use of AI to generate or assist in the production of creative outputs, such as text, images and music: Under this category, the Government wants to understand if it should clarify or modify the copyright ownership and authorship regimes to account for AI-assisted and AI-generated works. They have proposed three approaches to addressing the uncertainty regarding ownership and authorship: (1) clarify that copyright protection only applies to works created by humans; (2) attribute authorship on AI-generated works to the person who arranged for the work to be created; or (3) create a new set of rights for AI-generated works.
3. The use and commercialization of AI systems and the resulting liability from any infringement that may occur: Under this category, the Government will consider the practicalities of identifying the person(s) responsible for the infringement as well as establishing that the infringing party had access to the original copyrighted work and reproduced a substantial portion of the work.
The Canadian Government is considering feedback from stakeholders on the policy directions discussed above as well as legislative and jurisprudential developments in other jurisdictions, and evidence of a technical nature. Feedback will be accepted online until December 4, 2023 and the results of the consultation will be posted online later next year.
If you would like to discuss the consultation paper in more detail, please feel free to reach out to a member of Miller Thomson’s Intellectual Property or Artificial Intelligence group.
