Is it a Picasso? A Rembrandt? No, it's Artificial Intelligence

 

Photo Credits: Sukanya Sarkar (ManagingIP.com) (The image above is that which received copyright protection)

Nikita Munjal is an IP Innovation Clinic Fellow, a Student Editor with the Intellectual Property Journal, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

 

Creative works, such as artworks, qualify for copyright protection if they are original. It is not surprising that human artists are granted such protections. The labour, skills, and expertise required to create are apparent to anyone who dabbles in the fine arts or enjoys its casual consumption. However, recent developments in India may signal the emergence of a new era of protection extending beyond humans to include artificial intelligence.

In August of 2021, India’s copyright office recognized the RAGHAV Painting App, an artificial intelligence tool, as the co-author of a copyright-protected artistic work, Suryast. According to Ankit Sahni, an IP lawyer who owns RAGHAV and is the co-author of Suryast, the copyright office rejected an application listing RAGHAV as the sole author. Competing conceptions of ‘authorship’ and ‘originality’ in the copyright community explain this rejection.

There are two opposing views on authorship and originality regarding copyright protection for AI-assisted or AI-generated works. Some stakeholders believe an author must be a natural person. They assert that copyright law is meant to “encourage human beings to create and disseminate works,” and extending copyright protection to AI would result in irreparable economic harms since humans would not be able to create at the same pace as AI. These proponents recommend extending copyright only to AI-assisted works, rather than AI-generated works, given that a natural person was involved in the creative process.

Others assert that denying AI-generated works copyright protection would stifle innovation. Given how integral AI has become for businesses and research, any nation that adopts laws favourable to AI could boost its economy by attracting investors and businesses.

Which side of the spectrum is Canada on?

The Copyright Act does not explicitly define the term “author” or whether an AI application can be an author of a work. However, Canadian copyright jurisprudence has previously suggested that an author “must be a natural person who exercises skill and judgment in creating the work.” Moreover, the exercise of skill and judgment required to produce the work “must not be so trivial that it could be characterized as a purely mechanical exercise” (at para 16).

In July of 2021, acknowledging AI’s potential for challenging notions of authorship and originality, Innovation, Science and Economic Development Canada (ISED) launched a consultation titled A Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things. Invested stakeholders had until September 17, 2021, to provide submissions on what policy measures should be undertaken to ensure that Canada’s copyright framework “continues to achieve its underlying policy objectives and related priorities in the face of the challenges brought about by AI and the Internet of Things.”

Any decision the Canadian government makes regarding the copyright framework will not exist in a vacuum; it will be affected by developments in other jurisdictions. The United States, United Kingdom, and the World Intellectual Property Organization (WIPO) are just a few entities that have held consultations on whether intellectual property frameworks are the appropriate venue to address these matters. Indeed, given how closely this decision from India followed the patent declaration in South Africa, it seems to be only a matter of time before Canadian copyright laws are amended.

 

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