Canadian Association of University Teachers

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Consultation on a Modern Copyright Framework for Artificial Intelligence & the Internet of Things – Canadian Association of University Teachers

Submission to the Government of Canada

September 2021

The Canadian Association of Universities Teachers (CAUT) is pleased to be able to make this submission to the Government of Canada’s Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things.

Founded in 1951, CAUT is the national voice for academic staff representing 72,000 teachers, librarians, researchers, general staff, and other academic professionals at some 125 universities and colleges across the country. CAUT is an outspoken defender of academic freedom and works actively in the public interest to improve the quality and accessibility of post-secondary education in Canada.

In recent years, CAUT has participated in several government and parliamentary consultations on the topic of copyright and intervened in Supreme Court of Canada hearings regarding copyright law. The creation and dissemination of knowledge, creative, and intellectual works are of keen interest to our members. As our members are both creators and users of copyrighted works, CAUT holds a balanced perspective on copyright law. Further, it is not an exaggeration to say that we are the single largest formal organization of professional authors in this country – albeit most of the works produced by our members are scholarly and not literary works.

Text & Data Mining

Text and data mining (TDM) has emerged as an exciting and promising avenue for research and scholarship with a wide variety of applications from mining scientific journals to predict materials synthesis or mining newspapers for indicators of economic trends, political shifts, and social trends.Footnote 1 Though most of the activities of CAUT’s members would likely be covered by existing fair dealing exceptions, CAUT believes these exceptions should be expanded to combat “copyright chill” and encourage wider Canadian innovation and creativity using TDM. Further, removing barriers to TDM in our Copyright Act, would level the playing field for Canadian researchers as compared to their counterparts in other countries (e.g., Japan, the United Kingdom, France, Germany, and the United States) where either fair use or specific TDM exceptions have been adopted.

Regarding TDM, CAUT recommends the following:

  1. Fair dealing is a necessary and important balancing measure in copyright law. The Supreme Court of Canada has decided that it must receive a broad and liberal interpretation. In recognition of both facts i) section 29 of the Copyright Act must be expanded to include specific exceptions for text and data mining and informational analysis and ii) the list of allowable fair dealing purposes must be made illustrative by adopting “such as” language like American fair use. This could, for example, change section 29 to read as follows:
    • Fair dealing for a purpose such as research, private study, education, parody, satire, text and data mining, or informational analysis does not infringe copyright.
  2. All measures taken within the Copyright Act to enable and support TDM activities, including but not limited to the adoption of exceptions, should be extended to all works and all subject matter without restrictions. The pursuit of knowledge and the use of research techniques should not be limited in any way or by any special interests.
  3. The exception in section 30.71 of the Copyright Act that allows for the temporary reproduction of works as part of technological processes is an insufficient exception for the purposes of CAUT’s members and all others using TDM as part of research activities. To be able to reproduce, investigate and understand TDM research results, researchers must be permitted to indefinitely retain reproductions for verification, validation, and research purposes. The ability to revisit, test and reproduce research is fundamental to the scientific process; currently, the “temporary” nature of the section 30.71 reproduction exception may impede researchers’ ability to reproduce TDM research.

Technological protection measures

CAUT has advocated against the blanket prohibition of circumventing technological protection measures (TPMs) since at least 2010 and the first introduction of legislation which became the Copyright Modernization Act. The prohibition, even for non-infringing purposes, has put CAUT members engaged in digital scholarship in a double bind or altogether discouraged researchers from engaging in research or teaching that touches on digital objects.

Simply “looking under the hood” at, for example, how a video game’s software has been constructed or at earlier drafts of a digital manuscript hidden beneath the final consumer-facing version, is illegal if a researcher must break a digital lock to do this. This digital research is analogous to how an art historian might look at the layers of paint beneath the surface to understand the creative process of a painter or, as a second example, how literary and book historians investigate the physical construction of books to understand how these objects were put together and the impact this had on their texts. For digital humanities researchers, the digital equivalents of looking beneath the paint or breaking open the spine of a book, often cannot be accomplished without breaking TPMs.

As time passes and the Canadian heritage landscape becomes increasingly digital, the prohibition against breaking TPMs for any purpose puts Canadian researchers at a disadvantage and makes it increasingly difficult for us to understand digital Canadian cultural objects.

Regarding TPMs, CAUT recommends the following:

  1. The prohibition against circumvention of TPMs should be eliminated. However, CAUT recognizes that some international trade agreements may make this difficult to achieve. Given this, CAUT recommends the Government of Canada adopt at its earliest opportunity exceptions to allow circumvention of TPMs by both individuals and institutions for any non-infringing activities including but not limited to the activities related to education, research, private study and preservation.

Artificial Intelligence

The public domain is essential for fulsome cultural life by supporting knowledge and creative exchange. CAUT believes that the public domain ought to be protected when necessary and expanded when possible. A vibrant, diverse, and thriving public domain supports creators, innovators, researchers, educators, students, and all of society. Further, as the Supreme Court has indicated, Canadian copyright law should not function to suffocate dissemination and innovation that may lead to future creative works.

If one takes a long historical view of copyright law, copyright seems to only ever expand, tying down and reducing more of the public domain. The public domain is a finite resource. Given this and the potential for artificial intelligence (AI) to soon be harnessed in the creation of an increasingly large portion of works, efforts must be made to guard against the further shrinking of the public domain.

Regarding the use of AI in the creation of new works, CAUT recommends the following:

  1. In works created by humans using AI-assistance, the Government of Canada must require a high degree of human skill and judgement in the creation process before granting authorship and ownership to anyone. It should not, for example, grant authorship and ownership to someone simply because they provided electricity to an AI- machine and pressed a “start” button.
  2. Both AI-generated works and works created using AI-assistance with minimal human skill and judgement should go immediately into the public domain where they will enrich the cultural ecosystem and contribute to the virtuous cycle of creation/use.
  3. By deeming AI-generated works as public domain, this avoids the quagmire of determining liability. Although attribution to an originating human may be possible in theory, it will be very difficult to put into practice in an increasingly globalized digital world.

CAUT would also like to take this opportunity to raise other concerns we have regarding the use of AI in copyright enforcement. In recent years, platforms like YouTube and Facebook, for example, have begun using AI to identify and take down content which allegedly infringes copyright. Evidence has emerged indicating platforms are exceptionally risk adverse and have calibrated these AI systems to be over-sensitive. The result is that perfectly legal content is being misidentified and removed. Users and creators are often left with little recourse to petition for reconsideration. At best, this is frustrating for users and creators. At worst, this is akin to censorship. CAUT encourages the government to address this issue.

CAUT appreciates the opportunity to contribute to this consultation on the future of Canadian copyright law. We would welcome any opportunity to further discuss our recommendations.