In the contemporary landscape of emerging technologies, artificial intelligence (“AI”) is developing as a major catalyst for multisectoral transformations. From medicine to finance, even law and entertainment, AI is set to profoundly redefine the way we work and interact professionally. However, the swift ascent of AI also raises significant legal and ethical questions.1 Among these questions, a topic that often raises issues is the impact of AI in the field of copyright.
First, we must determine what protections are available to creators of musical, literary, visual, cinematographic or other works that are subsequently used by AI to new works. Second, it is essential to clearly distinguish situations where AI provides artists with creative assistance from situations where it generates the creative work in their stead.
After their overview of the legal framework of AI in Canada and Québec2, and in the EU, the United States and China,3 in this article, the authors, with the contribution of Mtre. Yann Canneva, focus specifically on the copyright issues raised by the use of AI and the legislative protections currently provided under the Copyright Act.4
Copyright vs. artificial intelligence: What are creators claiming?
Multiple copyright lawsuits are pending in the United States (“U.S.”) and others are likely to be filed in Canada, including class actions. This results in part from the fact that AI’s use of original works for training purposes is skyrocketing. In September 2023, the U.S. periodical The Atlantic published a searchable database containing the titles of over 183,000 books used without the authors’ permission by U.S. AI systems for learning purposes.5 Many of those books were written by Canadian authors.
“They’re using our work as the engines for our own destruction,” commented Montreal author Trevor Ferguson after discovering that seven of his books were among the 183,000.6 In September, the Authors Guild filed a class action lawsuit in the U.S. against OpenAI for copyright infringement, calling the situation “systemic theft on a mass scale.”7 Its Canadian counterpart, the Writers’ Union of Canada, stated it was mulling over bringing a similar action in Canada.8
One such U.S. copyright lawsuit is Main Sequence v. Dudesy LLC,9 in which a U.S. media company claiming to specialize in AI-generated creative works was being sued for having published on YouTube, on January 9, 2024, a one-hour special featuring the imitated voice of U.S. comedian George Carlin, who passed away in 2008, allegedly generated using AI. The deceased actor’s estate was accusing this company of copyright infringement. In accordance with the January 25, 2024, complaint, over 16 years after Mr. Carlin’s passing, Dudesy LLC and its founders, comedian Will Sasso and writer Chad Kultgen, “took it upon themselves to ‘resurrect’ Mr. Carlin with the aid of [AI].”10 However, on June 18, 2024, a stipulated consent judgment and permanent injunction was entered in the suit, stipulating that the defendants are permanently restrained and enjoined from uploading, posting or broadcasting the Dudesy Special on the Dudesy Podcast, and from using George Carlin’s image, voice or likeness on the Dudesy Podcast.11
Such suits raise a host of issues, including the need for authors of original works to consent to their use and the credit and compensation they should receive as a result thereof.
Similar issues were also recently noted in the U.S. film industry. During the Hollywood strikes of 2023, tens of thousands of screenwriters, actors, dancers, stunt persons and other members of the Screen Actors Guild–American Federation of Television and Radio Artists challenged the use of AI, fearing that tools such as ChatGPT would replace them. They requested that such technology be used only as a support, for example to facilitate research or the creation of new ideas, without generating content.12
They also demanded that their existing work not be used to train AI systems on creating new content. In addition, actors expressed concern that the technology will be able to replicate their physical appearance as well as their voices.13
These strikes ended in late 2023 when the artists’ union reached a tentative agreement with the major production studios on offering certain protections against the use of AI, including making it mandatory to obtain actors’ consent before creating and using replicas of them, and providing monetary compensation for this purpose.14
U.S. artists’ concerns are echoed by artists worldwide. In 2023, the Union des artistes du Québec joined the United Voice Artists, an international coalition of associations and unions from France, Spain, Turkey and the United States that have banded together to prevent AI from replacing humans in voice-overs and dubs.15
In October 2023, the Regroupement des artistes en arts visuels du Québec, Illustration Québec and the Union des écrivaines et des écrivains québécois published an open letter stating, in particular: [Translation] “At a time when the Canadian government must set the standards and protective measures for generative artificial intelligence, it is important that the cultural community be actively involved in the thinking process and that its creators be able to understand all the issues.”16 The letter identifies three key areas of concern: creators’ consent, credit and compensation.
Copyright in Canada: What protections are currently available to creators?
Since the Artificial Intelligence and Data Act that is proposed as part of Bill C-2717 is still at the committee stage in the House of Commons,18 there is currently no specific legislation governing AI within Canada. Barring any legislative amendments, how works created in whole or in part using AI are to be treated under the Copyright Act19 is yet to be resolved.
Copyright in Canada, enshrined in the Copyright Act, protects a wide range of works including every original literary, dramatic, musical and artistic work, computer programs, translations and compilations of works.20 But there is an important nuance: a work is not a mere idea, which is not protected under the law. A work must consist of an original, particular, and personal expression of the idea.21 Therefore, the use of the term “work” refers to an idea translated into a fixed material form.
Moreover, for it to be protected by the Copyright Act, in addition to the criterion of materiality, the work must also be original, i.e., the product of the author’s effort and the exercise of their skill and judgment.22 However, this criterion implicitly requires an intellectual effort on the part of the author, a natural person.
Note that the threshold for meeting the test for originality in Canada is relatively low. For instance, the Supreme Court has recognized that a work compiling judicial decisions represents an exercise of skill and judgment sufficient to merit copyright protection, specifying that it “is not the several components that are the subject of the copyright, but the overall arrangement of them which the plaintiff through his industry has produced”.23 Conversely, the compilation of information contained in Yellow Pages directories was not ruled an original work by the Federal Court of Appeal.24 Accordingly, the purely mechanical undertaking that resulted in creating a work will be considered too trivial to meet the test for originality.25
As a result, a work created by AI without human intervention will likely not meet the test for originality.
Collaborative works: When humans and AI intersect
What about a work that combines both human and artificial intelligence? Using a technological tool to help create a work is not in itself an obstacle to the protection of the said work under the Copyright Act. Take, for example, the use of software to make certain illustrations, or Photoshop to touch up digital photographs. With the significant technological advancements AI represents, we are currently unsure of the intellectual input required for collaborative work with AI to be acknowledged as original. Clarification from the case law will be essential to shed light on this matter. Some experts believe that without the input of human talent or judgment, collaborative works could risk falling into the public domain. This would mean that anyone could then freely use and exploit them as they see fit.26
For this reason, it is crucial to consider the use of specialized legal intellectual property and copyright protection services, particularly in cases involving the unauthorized use of a work partially created using AI, to anticipate and prevent litigation.
The legal boundaries of digital inspiration
But how should copyright be delineated in relation to the intersection of AI and the original works it uses to inspire and create new content? Does their use by AI amount to copyright infringement?
For copyright infringement to occur, two essential elements must be established: first, there must be access to the original work, and second, the infringing work must reproduce all or a substantial part of the original work.27
Given the extensive and limitless potential sources available to AI models on the web, discerning the original sources of inspiration for works wholly or partially generated by AI is challenging in certain cases. It will be interesting to see how the courts apply the existing case law test to these novel circumstances.
Enhanced legal safeguards for creative works become even more paramount considering that the traditional criteria for addressing breaches of intellectual property rights may not be entirely relevant in cases where content is jointly generated by humans and AI.
Therefore, a number of book associations, such as the Coalition for the Diversity of Cultural Expressions and international book federations, have reminded the Canadian government that it is crucial to take action to better protect creators from unauthorized use of their works by AI.28 They have emphasized that [translation] “the book industry is still waiting for Pascale St-Onge, Minister of Canadian Heritage, and François-Philippe Champagne, Minister of Innovation, Science and Industry, to honour their commitment to amend the Copyright Act so that authors and publishers can again receive the fair share of the use of their published works.”29 Indeed, at the end of April 2024, Stéphanie Hénault, Director of Legal Affairs at the Canadian Publishers Association, confirmed that actions were taken in Ottawa to regulate AI, following a brief sent by Ms. Hénault, requesting new copyright legislation concerning AI.30 For its part, the Artificial Intelligence and Data Act currently contains no specific provisions to provide additional legislative intellectual property or copyright protections.
However, the Canadian government held a consultation on copyright in the age of generative AI to gather insights on how to adapt the copyright framework to new AI realities. It brought together a number of specialists to provide observations on copyright issues. This included the International Trademark Association (INTA), which submitted a report on the subject.31 The consultation ended in December 2023.
Beyond our borders: What protections are available to creators?
On February 2, 2024, the 27 Member States of the European Union unanimously approved the EU Artificial Intelligence Act32 (the “EU AI Act”), which sets out new rules with a view to establishing a harmonized and comprehensive legal framework for all AI systems throughout its territory.33 From a copyright standpoint, this regulation introduces several new obligations for AI system providers, including
- to create and maintain documentation that enables them to fully understand the capabilities and limitations of their system, including transparency and intellectual property protection;
- to implement an EU copyright legislation compliance policy; and
- to publish a publicly available summary of AI model training data using a template provided by the AI Office.34
In addition, content that has been artificially generated or manipulated will need to be identified as such.35
On July 12, 2024, after amendments by the European Parliament and the Council, the final version of the EU AI Act was published in the Official Journal of the European Union, and on August 1, 2024, it entered into force36, making it the first legislation on artificial intelligence in the world.
In France, a new bill to regulate artificial intelligence in copyright matters was tabled in the National Assembly by eight deputies on September 12, 2023. The wording of the act aims to complement the intellectual property code to provide artists with better protection and compensation, particularly where the works generated were created using their work on which the AI was trained.37
Meanwhile, the United Kingdom has adopted an approach whereby copyright, when generated by an AI system, is granted to the person who makes creating the work possible.38 It is possible for the British to patent a creation made using artificial intelligence, but AI cannot be recognized as the sole author of a work.39
Conclusion
In short, preserving copyright in the age of AI requires a vigilant and proactive legal approach. Given the fast pace of AI breakthroughs in generating and modifying creative works, it has become crucial to supply creators with the necessary safeguards. Attorneys with expertise in this area may assist the authors in this regard.
The proliferation of legal remedies in this area points to a growing need to collectively uphold the rights of creators in response to the difficulties presented by AI. This is why we must stay abreast of advancements in AI to safeguard these rights in an ever-evolving landscape.
The authors are grateful to law student Laurianne Duquette for her contribution.
1 See the following on this subject: “Ethics in artificial intelligence: Discriminatory biases.”
2 See the following on this subject: “Legal framework for artificial intelligence: Where do we stand in Canada and Québec?”
3 See the following on this subject: “Legal framework for artificial intelligence: What is the approach of the European Union, the United States and China?”
4 Copyright Act, R.S.C., 1985, c. C-42.
5 REISNER, Alex, “These 183,000 Books Are Fueling the Biggest Flight in Publishing and Tech,” The Atlantic, 2023, online.
6 BONGIORNO, Joe, “Montreal Writers Want More Protections as AI Sucks Up Their Stories,” CBC, 2023, online.
7 The Authors Guild, “The Authors Guild, John Grisham, Jodi Picoult, David Baldacci, George R.R. Martin, and 13 Other Authors File Class-Action Suit Against OpenAI,” September 20, 2023, online.
8 The Writers’ Union of Canada, “Searchable Database Containing Book Titles Used to Train Artificial Intelligence,” September 28, 2023, online.
9 California Central District Court, January 25, 2024, 2:24-cv-00711, Main Sequence, Ltd. et al. v. Dudesy, LLC et al., online.
10 Ibid.
11 Ibid.
12 LYON, Todd A. et al., “Why AI Is a Critical Issue in the Hollywood Strikes – and Takeaways for Introducing AI into Your Workplace Without Conflict,” Fisher Phillips, 2023, online.
13 Ibid.
14 SAG-AFTRA, “SAG-AFTRA National Board Approves Tentative Agreement, Recommends Ratification of 2023 TV/Theatrical Contracts,” SAG-AFTRA, 2023, online.
15 Radio-Canada, “L’UDA craint que l’IA remplace les artistes de la voix,” June 22, 2023, online.
16 CAZIN, Camille, LORTIE, Jean-Phillipe and LAUZON, Geneviève, “Lettre ouverte sur l’intelligence artificielle – RAAV X IQ X UNEQ,” October 2023, online.
17 An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts, Bill C-27 (introduction and first reading – June 16, 2022), 1st Sess., 44th Parl., (Can). See also “Legal framework for artificial intelligence: Where do we stand in Canada and Québec?”
18 Government of Canada, “The Artificial Intelligence and Data Act (AIDA) – Companion document,” 2023, online.
19 Copyright Act, RSC, 1985, c. C-42.
20 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, para. 8; ss. 2, 2.1 and 5 of the Copyright Act.
21 France Animation, s.a. c. Robinson, 2011 QCCA 1361, para. 27.
22 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, para. 16 and s. 5 of the Copyright Act.
23 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, para. 33.
24 Tele-Direct (Publications) Inc. v. American Business Information, Inc., [1998] 2 FC 22.
25 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, para. 16.
26 AZZARIA, Georges, “Intelligence artificielle et droit d’auteur : l’hypothèse d’un domaine public par défaut,” (2018) 30 CPI 925-946. See also “Government of Canada, A Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things.”
27 Philip Morris Products S.A. v. Malboro Canada Limited, 2010 FC 1099 at para. 315 (overturned in part in Marlboro Canada Limited v. Philip Morris Products S.A., 2012 FCA 201, but not on the issue of copyright infringement).
28 Les univers du livre – Actualités, “Québec : l’industrie du livre se prononce sur l’intelligence artificielle et le droit d’auteur,” January 15, 2024, online.
29 Ibid.
30 NAUTL, Sarah-Émilie, “Ça y est, l’intelligence artificielle s’invite dans le monde de la littérature: les auteurs et les éditeurs québécois se prononcent”, July 14, 2024”, online.
31 One of our co-authors, Mtre. Yann Canneva, collaborated on this report.
32 See the following on this subject: “Legal framework for artificial intelligence: What is the approach of the European Union, the United States and China?”
33 European Council and Council of the European Union, “Artificial intelligence act: Council and Parliament strike a deal on the first rules for AI in the world,” December 9, 2023, online.
34 Article 50 of the EU AI Act, online.
35 Ibid., article 50(3).
36 PICCIOLI, Matteo, “EU artificial intelligence act officially enters into force “ JURISTnews, August 1st, 2024, online.
37 MIGLIORE, Elodie, “Proposition de loi visant à encadrer l’intelligence artificielle par le droit d’auteur : une initiative louable, mais perfectible” Dalloz Actualités, October 4, 2023, online.
38 PAILLON, Elias, supra, note 22.
39 DémarchesAdministratives.fr. “Droit d’auteur et contenu générés par les IA,” August 4, 2023, online.