Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law
In July 2021, the Government of Canada launched a consultation on Artificial Intelligence (“AI”) and the Internet of Things (“IoT”). The goal was to balance the realities of developing technologies with the interests and needs of artists, innovators, and consumers. In the closing remarks of the news release, the government stated its aim of “making sure that our digital and data-driven economy is built on a strong foundation of trust and that AI is developed and used responsibly to the benefit of all citizens”.
In response to the call to submissions, thirteen scholars in Intellectual Property, including Osgoode Hall Professor Carys Craig and Queen’s Law Professor Bita Amani, penned their suggestions for how the government could address these concerns. The submissions are divided into the categories of AI policy reform and IoT policy reform. In Part 1, I will summarize some of the key points presented by the group concerning AI, and in Part 2, I will focus on their suggestions concerning the IoT.
Balancing the Public Interest
The scholars acknowledged the government’s commitment to “keep pace” with technological developments in AI while protecting the public interest through Federal statute (the Copyright Act). In so doing, they relied on Théberge v Galerie d’Art du Petit Champlain Inc, where the court described copyright laws as “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”. The group also stressed the importance of technological neutrality and referenced Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada. In that case, the court grappled with the importance of developing copyright legislation independently, without prioritizing one form of technology over another. The court placed further emphasis on the importance of drafting copyright legislation impartially, without making specific objectives concerning AI, as the technology will likely continue to develop and change.
Text and Data Mining
The group highlighted their concerns regarding the regulation of text and data mining (TDM) activity under the Copyright Act. TDM is important to the public interest, as it supports AI research and development. Moreover, TDM plays a role in scholarly and commercial research, education, and journalism.
The authors pointed to current legal barriers for those who participate in TDM. Included in these barriers was the uncertain applicability of section 3(1) of the Copyright Act. The confusion arises from Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn of Internet Providers. The Supreme Court concluded that the creation of electronic copies through “cashing” did not implicate the interests of copyright owners. Yet, the scholars suggested that the legislature leaves room for confusion, as it is not clear whether the interpretation of TDM would be considered prima facie infringement by the courts.
The group proposed that the Government of Canada create a fair dealing doctrine to accommodate activities, such as research to accommodate TDM activities. Further, they suggested that the Government enact specific statutory provisions that allow for legal TDM activities that require the use of copyrighted works.
Authorship and Ownership of Works Generated by AI
One burgeoning issue within intellectual property law is legal protection for AI-generated works and inventions (see IPilogue posts regarding inventorship rights for AI here, here, here, and here). The scholars rejected the notion of copyright protection for AI-generated works. As such, they suggested the government make amendments to the Copyright Act delineating the requirement of human authorship to gain copyright protection.
In outlining their concerns about the future of Copyright legislation and its potential to protect the interests of Canadians, the group provided their final recommendations to the government, which included amending the Copyright Act to include a broad statutory provision that allows the use of TDM without the concern of copyright infringement. The provision should apply to all technology users, including those using TDM for commercial and non-commercial purposes. The scholars also suggested amending section 29 of the Copyright Act to include a purposes list and an enumerated purpose for TDM or data/informational analysis.
Another final recommendation asked the government to clarify the definitions in section 2 of the Copyright Act to specify that an author is a human being or natural purpose. Further, it was suggested that the Government of Canada amend section 5 of the Copyright Act to specify that copyright shall not be granted to a work unless its author is human.
Public consultations are touted as one of the best tools to improve quality in regulation. Canadians can remain sanguine that the Government of Canada will heed the suggestions provided by the 13 IP scholars to protect and promote the interests of Canadians while also acknowledging the benefits that come with technological advancement. Contribution to the consultation through scholarly insight and expertise is also commendable.