ACT | The App Association

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September 17, 2021

Innovation, Science and Economic Development Canada
C.D. Howe Building
235 Queen St.
Ottawa, ON
K1A 0H5

RE: ACT | The App Association Comments on a Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things

I. Introduction

ACT | The App Association (App Association) appreciates the opportunity to submit comments in response to Innovation, Science and Economic Development Canada’s (ISED) public consultation regarding efforts to create a modern copyright framework accounting for progress in technical fields including artificial intelligence (AI) and the internet of things (IOT). In general, the App Association supports a comprehensive copyright framework that protects creators while avoiding placing a burden on businesses that would restrict the growth and innovation driving economic gains.

The App Association represents thousands of small business software application development companies and technology firms, located both in and outside of Canada. These companies create technologies that generate internet of things (IoT) use cases across consumer and enterprise contexts and are primary drivers of the global digital economy. Today the valuation of the ecosystem the App Association represents—which we call the app economy—is approximately Can$1.7 trillion and is responsible for tens of millions of jobs around the world, including 262,000 jobs in Canada.Footnote 1 Alongside the world’s rapid embrace of mobile technology, our members provide innovative solutions that power IoT, a market projected to be worth more than Can$18.5 trillion by 2022 across modalities and segments of the economy.Footnote 2

II. Authorship and Ownership of Works Generated by Artificial Intelligence

AI is an evolving constellation of technologies that enable computers to simulate elements of human thinking – learning and reasoning among them. An encompassing term, AI entails a range of approaches and technologies, such as Machine Learning (ML) and deep learning, where an algorithm based on the way neurons and synapses in the brain change due to exposure to new inputs, allowing independent or assisted decision making.

AI-driven algorithmic decision tools and predictive analytics are having, and will continue to have, substantial direct and indirect effects on Canadians. Some forms of AI are already in use to improve Canadian consumers’ lives today – for example, AI is used to detect financial and identity theft and to protect the communications networks upon which Canadians rely against cybersecurity threats. Moving forward, across use cases and sectors, AI has incredible potential to improve Canadian consumers’ lives through faster and better-informed decision making, enabled by cutting-edge distributed cloud computing. As an example, healthcare treatments and patient outcomes stand poised to improve disease prevention and conditions, as well as efficiently and effectively treat diseases through automated analysis of x-rays and other medical imaging. AI will also play an essential role in self-driving vehicles and could drastically reduce roadway deaths and injuries. From a governance perspective, AI solutions will derive greater insights from infrastructure and support efficient budgeting decisions. An estimate states AI technological breakthroughs will represent a Can$161 billion market by 2025.Footnote 3

Today, Canadians encounter AI in their lives incrementally through the improvements they have seen in computer-based services they use, typically in the form of streamlined processes, image analysis, and voice recognition (we urge consideration of these forms of AI as “narrow” AI). The App Association notes that this “narrow” AI already provides great societal benefit. For example, AI-driven software products and services revolutionized the ability of countless Canadians with disabilities to achieve experiences in their lives far closer to the experiences of those without disabilities.

Nonetheless, AI also has the potential to raise a variety of unique considerations for policymakers, and the App Association appreciates the Canadian Government’s efforts to develop a copyright policy approach to AI that will bring its benefits to all, balanced with necessary safeguards to protect consumers.

Initially, we strongly urge the Canadian Government to ensure its copyright policy and law reflects that a natural person must be responsible for a work for it to qualify as a work of authorship, and for Canadian copyright laws to provide that Canada will register an original work of authorship only when that the work was created by a human being.Footnote 4 At this time, the App Association does not consider the machine as an inventor; instead, the inventor would be the machine programmer as the programmers created the AI to resolve a human-defined issue that could not have been produced without human questioning. While this topic may need more thought in the distant future after further development of AI, we believe that this issue can be set aside during this request for the ISDE comment period.

Individuals who contribute to the conception, training, or applications of the AI may all receive consideration as AI inventors. However, making a determination about the specific person who should hold the copyright will be based on the facts surrounding the AI invention or application. The Government should recognize these issues and carefully examine them in its AI-related efforts.

Copyright law should provide that it will register an original work of authorship only when that the work was created by a human being. Any determinations regarding when and by whom authorship exists in a work autonomously created by AI may represent a drastic shift in law and policy, raising broader definitions of AI personhood and AI itself, which should be addressed once AI is further developed and implemented. At this time, our members do not face barriers for innovation related to uncertainty around authorship of AI generated works, and until such time the App Association suggests the Government of Canada avoid any related changes to the Copyright Act

With respect to a person choosing data used by the algorithm, the App Association believes that such a scenario may be sufficient to qualify for copyright protection when meeting the thresholds for copyrighting a data selection within a compilation, which is enabled by some copyright laws in other jurisdictionsFootnote 5 (notably, requiring creativity in the data selection). When evaluating a natural person “causing” the AI algorithm or process used to yield the work, the App Association does not believe such an activity should necessarily create copyrightable author rights. Such an allowance would allow a party “causing” the algorithm to “yield work” through simply enacting another author’s algorithm to claim authorship.

The App Association believes that Canadian copyright law precedent may need to evolve to address scenarios where an AI algorithm or process learns its function(s) by ingesting large volumes of copyrighted material, including with respect to infringement and fair use. This is simply an effect of quickly evolving technology and controversies arising that very likely can be resolved Canada’s existing copyright framework. However, changes to Canada’s copyright laws should not weaken critical copyright protections.

At this time, our members do not face any barriers for innovation based on uncertainty around authorship when AI is involved. The App Association could support proposed approach A, attributing AI-generated works’ authorship to the human who made arrangements for the creation of the work, in the future, but currently there is no benefit to solving a problem that is not affecting the rapid pace of innovation, and we suggest the Government wait to better understand possible effects on economic development before moving forward with any proposed solution. The App Association would not support proposed approaches B or C now, or in the future.

III. Repair and Interoperability Related to the Internet of Things Including Circumvention of Technological Protection Measures

The IoT is an encompassing concept where everyday products use the internet to communicate data collected through sensors. IoT is expected to enable improved efficiencies in processes, products, and services across every sector. In key segments of the Canadian economy, from agriculture to retail to healthcare and beyond, the rise of IoT is demonstrating efficiencies unheard of even a few years ago.

The real power of IoT comes from the actionable information gathered by sensors embedded in every connected device. IoT devices are useful in direct consumer interactions, but will see the largest value in how the data becomes part of what is now commonly referred to as “big data” (a term we define this term to mean structured or unstructured data sets so large or complex that traditional data processing applications are not sufficient for analysis). As sensors become smaller, cheaper, and more accurate, big data analytics enable more efficiencies across consumer and enterprise use cases.

IoT deployment will be highly use case-dependent. The technology industry, to date, has done well through open Application Programming Interfaces (APIs) and other widely-adopted standards (e.g., TCP/IP) to enable interoperability. For example, in healthcare, a miniaturized and embedded connected medical device must be able to automatically communicate bi-directionally in real-time. This capability enables a healthcare practitioner to monitor a patient’s biometric data as well as for the patient to be able to communicate with a caregiver in the event of a medical emergency. Other uses, such as sensors deployed to alert security of an unauthorized presence, may only require the ability to send data to security professionals with minimal (or even no) capability to receive communications.

While many definitions of IoT have been put forward since the term was coined in the late 1990s,Footnote 6 a universal definition has not yet emerged. Should ISED (or any other part of the Government of Canada) move forward with defining IoT, we urge them to ensure that this definition reflects the encompassing scope of IoT both from a use case and technology perspective, and avoid “locking in” particular technologies (whether directly or effectively) which will be deeply damaging to Canada’s role in the rise of IoT, as no one can predict what shape future successful deployments will take in response to marketplace trends and competition. At the same time, however, it is also important that the Canadian government provide a generally accurate description of IoT for the community of impacted stakeholder (consistent with the above).

The rise of the IoT should be enabled by sound copyright policy in Canada. It is the position of the App Association that broad exemptions to allow circumvention for device repair will undermine the important incentives that technological protection measures (TPMs) give to creators, and that overbroad exemptions will jeopardize the safety and privacy of consumers. App Association members, inventors and entrepreneurs themselves, understand and appreciate the desire to reconfigure the software on a device, create new functionalities, and repair hardware. However, exemptions to copyright law must be responsive to actual harms and maintain the balance of interests in protecting copyrighted works while allowing users to access and use those works. Before considering the further expansion of exemptions to cover broad categories of works, it is important that ISDE recognize that developers, inventors, tinkerers, and repair services who want to build their own solutions or fix their own device have many options available to them. Both closed and open-source systems are flourishing, giving IoT innovators and consumers the ability to choose the ecosystem that works best for them. For example, Apple Repair is a private industry solution that provides customers with flexible options and at the same time protects the content and the integrity of the software, and Apple has set up a certification program for independent repair shops where providers can get trained and certified. Apple Repair is just one example of many where private industry is providing users with the tools to use and enjoy their products safely.

TPMs protect layers of software in devices. Licensed software is a part of most products with digital content embedded in them. The system of licensed software is a crucial component to the investment and distribution in existing products and future innovations. The benefits to consumers across a wide variety of IoT products and services at every price point cannot be understated. Exemptions that allow the offering of tools to circumvent TPMs protecting embedded IoT device software compromise the protections afforded to other licensed software, putting consumers and their personal information at risk when products malfunction. It also allows software competitors access to product code, which is a disincentive to innovation. Fortunately, there are alternative options to address many of the concerns expressed regarding access to software. Notices to consumers about restrictions and allowable uses along with offering certified third-party repair services can protect consumers and software developers. Our members and those of other content and industries rely on licensed software to continue to offer low-cost, consumer friendly products across a growing range of business models.

Cybersecurity, public safety, and the disclosure of personal information are all at risk when a person circumvents a TPM for the purpose of repairing a product or device. Our member companies create the software that brings smart devices to life. They also make the connected devices that are revolutionizing healthcare, education, public safety, and virtually all industry verticals. Establishing a right to repair for the software and devices bringing these important services to consumers will expose developers and device manufacturers to liability and consumers to harm and injury. It is impossible to isolate the copyright issues from the laws, regulatory regimes and voluntary initiatives intended to protect consumers.

IV. Conclusion

The App Association is a strong supporter of copyright protections that allow innovators to protect their work and ensure future development of creative applications. A stable, predictable copyright framework is key to the success of both our members and the Canadian economy.

We thank ISED in advance for its consideration of our views, and we look forward to engaging further in the future.


Brian Scarpelli Senior Global Policy Counsel

Leanna Wade Policy Associate

ACT | The App Association 1401 K St NW (Ste 501)
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