Copyright Challenges in the Age of AI-Generated Works

With artificial intelligence, many have the ability to produce works of authorship, designs, creative works, or artifacts that have features of “human creativity”.?

This can include literary, dramatic, musical, artistic works, or other types of works.?

From a copyright law perspective, what happens when computers or AI machines create works that make them indistinguishable from human creativity?

How should we interpret our current copyright laws in relation to AI-generated works?

In this article, I will discuss the implications of AI-generated works from the perspective of copyright sustainability, ownership, and the notion of originality in the creation of works of authorship.?

My goal is to raise awareness of the copyright challenges we are facing today rather than present my personal perspective of what’s the right or wrong approach when dealing with AI-generated works.

Let's dive right in.

But first, let’s first look at how copyright is created in Canadian law.

Creation of Copyrightable Work

To start with, how can a person obtain copyright protection on a piece of work?

In Canada, it’s quite simple for anyone to acquire copyright protection for their works.?

First, we do not have any aesthetic quality barriers or conceptual coherence requirements for copyrightability.

Copyright can vest even in the most mundane type of work.

The law does not set a minimum level of human ingenuity, aesthetic relevance, or quality for a piece of work to acquire copyright protection.

Second, getting copyright protection does not require any administrative steps.

The moment you create an original literary, dramatic, musical, or artistic work, copyright automatically vests the moment the work is fixed in a more permanent or tangible form.

In essence, your copyright protection is automatically granted the moment you create works that have some level of originality and are fixed in a more permanent or tangible form.

As a result and at first glance, we can argue that AI-generated works can meet the minimum requirements to be afforded copyright protection.

However, is this the case based on the current copyright laws in Canada?

Let’s look at a few important pillars of Canadian copyright laws to determine if AI-generated work can be afforded copyright protection.?

Key Copyright Requirements

What are the requirements for the subsistence of copyrights under Canadian laws?

Geographic Requirement

For a copyrightable work to subsist under Canadian laws after it is created, it must observe a geographical requirement.

Essentially, the author of the copyrightable work must be a resident, or citizen, subject to Canadian laws at the moment the copyrightable work was produced.

A human can easily fulfill this requirement.

On the other hand, how would this requirement apply to an AI system?

AI systems are complex and you can have servers, programmers, users, and owners, all in different jurisdictions.

Where is the author of the work located when there is no human author?

When will the AI-generated work be subject to the Canadian Copyright Act?

Copyright Duration

Second, another aspect that should be considered is the duration of copyright protection.?

In Canada, copyright protection in a piece of work lasts for the entire duration of the author's natural life along with a statutory duration after death.

Once the author dies, copyright in Canada is preserved for another seventy years (prior to December 30, 2022, this was fifty years).

The implication here is that the duration of copyright protection is linked to the natural life of the author.

This is quite straightforward for humans, but how will it apply to AI machines?

Moral Rights Duration

A third aspect of copyright laws that should be considered is with regard to moral rights.

Moral rights protect the author’s association with the creative work by preserving the integrity of the work and the author's expression in the work.

An author is entitled to moral rights for the duration of his or her life along with an additional seventy years following the author’s death.

Just like the copyright protection duration, moral rights are closely related to the author’s natural life.

Can a computer or AI system claim moral rights?

Who will be entitled to the moral rights associated with AI-generated work?

Application to AI-Generated Works

Based on the above factors, what do we make of the current state of the Canadian Copyright Act in relation to AI-generated works?

Copyrightability on Works:

By looking at Canada’s Copyright Act, we can say that both a human and AI system can potentially create copyrightable work the moment the piece of work is created with a certain level of creativity or ingenuity and is fixed on a more permanent or tangible form.

Now, if copyrightable work is created, can it subsist under Canadian copyright laws?

Geographical Requirement:

From a geographical perspective, copyright laws suggest that copyrightable work can continue to subsist to the extent the work is associated with a natural person who resides somewhere.?

This suggests a “human” author.

If that's the case, what should we do with the rights associated to AI-generated works?

Copyright Protection Duration:

In relation to the duration of copyright protection, it is intimately linked to the author’s lifespan.?

A human being lives and dies allowing us to compute the copyright protection duration based on the current formulation of the law.

However, an AI machine does not live or die making the copyright protection time frame problematic to establish.?

If AI-generated work is to be protected, when should the protection start and finish?

Moral Rights:

Similarly, moral rights are linked to a person’s natural life and are intended to protect an author’s association with the work and the integrity of the work itself.

It will be challenging to attribute moral rights to a computer or AI system as it is not a human and does not have a defined lifespan.

In essence, although the Canadian Copyright Act does not specifically state that an author has to be human, we have textual arguments that suggest that an author of a piece of work must be human.

If that's the case, what do we do with all the AI-generated works?

Copyright Ownership

Now, let’s look at the notion of copyright ownership.

It’s important to nuance copyright authorship from ownership.

In Canada, copyright authorship, until now and in nearly all cases, is created by human authors.

However, just because the work of authorship is generally created by a human does not mean that a non-human cannot be the owner of the copyrights.

Copyrights can be owned by either a human or a legal entity, which is a non-human legal fiction.

For example, employers will “own” the copyright for works created by their employees in the course of employment.

Even though a “human” employee was the author of the work, the employer, being a legal entity, owns the copyrights.

So it’s conceivable that a legal entity, a non-human or a fiction of law, can own copyrights.

Now, in relation to an autonomously generated AI work, who should own the copyright on a piece of work created almost entirely by a machine?

Since you don’t have a “human” author or a human “employee” producing the work, determining copyright ownership can become challenging.

Who should own the AI-generated work?

Should it be the AI programmer, the AI user who gave the relevant prompts to generate the work, the party who owns the AI software, the copyright owners of the data used to train the AI model, or should the work go into the public domain?

These are all questions that I raise and that we will need to collectively find an answer to.

The final point I’ll address is the notion of originality.

Originality Requirement

In copyright law, for a work to be protected, it must be original.?

Originality is determined by looking at the process that led to the creation of the work, not just the final product.?

In the case CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, the Supreme Court of Canada defined originality to mean that a work “must be more than a mere copy of another work.”

Furthermore, the work does not “need not be creative, in the sense of being novel or unique.”?

Thus, originality is defined to be a piece of work that is more than a mere copy of another work but without the need to be novel or unique.?

Also, for an author’s work to be protected, the author's expression must involve skill and judgment.?

Skill is defined as the use of knowledge, developed aptitude, or practiced ability in producing the work.?

Judgment is defined as the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.?

The level of skill and judgment should not be so trivial that it could be characterized as a purely mechanical exercise.?

Now, can autonomous AI machines create outputs that meet the originality test set by the Supreme Court of Canada??

Can machines be considered authors in the legal sense as having exercised skill and judgment to create original work??

Note that in Canada, the first-ever AI-authored work has been registered with the Canadian Intellectual Property Office.

In December 2021, the Canadian Intellectual Property Office (CIPO) registered a Starry Night-inspired painting titled Suryast having two authors where one of the co-authors was a human (Mr. Ankit Sahni) and the other was an AI application (RAGHAV Artificial Intelligence Painting App).

The Canadian Copyright Act does not define the term "author" but since the creator of Suryast had a human "co-author", it appears that it satisfied the Canadian copyright registration requirements.

Takeaways

As the use of AI becomes more prevalent, it raises important questions about the copyrightability, sustainability, and ownership of these works under copyright laws.

The requirement of originality, being the cornerstone of Canadian copyright laws, is being challenged by the ability of AI to produce works that are indistinguishable from human creativity.?

Lawmakers and courts should consider the implications of AI-generated works and how they fit within the existing framework of copyright law.?

This includes re-evaluating the definition of originality and authorship and determining the rights and responsibilities of different stakeholders in relation to AI-generated works.?

Ultimately, the goal should be to strike a balance between protecting the rights of creators and allowing for innovation and progress in the digital landscape.

I hope that I was able to shed some light on some of the copyright challenges that we are currently facing with the popular use of AI systems and technologies.

If you are dealing with an AI-generated work of authorship or need legal advice as to the copyrightability of machine-generated content, be sure to consult with a qualified attorney.

Good luck!