Jay Kerr-Wilson (on behalf of Telecommunications Service Providers)

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September 17, 2021

By Email

Re: TSPs’ Submission to Innovation, Science and Economic Development Canada regarding the Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things

Introduction and Executive Summary

We are pleased to provide these comments on behalf of Bell Canada, Rogers Communications, Shaw Communications, TELUS Communications, Cogeco Communications, and Quebecor Media (collectively the “Telecommunications Service Providers” or “TSPs”). We use the terms “Telecommunications Service Providers” or “TSPs” to refer to all intermediaries that provide residential and commercial subscribers with access to the internet via wireline or wireless network. Combined, these TSPs provide internet access and other telecommunications services to the vast majority of Canadian households and businesses. The TSPs appreciate this opportunity to present their views on the Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things.

Access to the robust and reliable networks built and maintained by the TSPs is essential to the development of Artificial Intelligence (“AI”) and the Internet of Things (“IoT”). The TSPs have and will continue to invest significantly in their infrastructure in order to provide the level of service required by those Canadian developers that are at the forefront of the development of AI and IoT solutions, and by the millions of individual Canadians and business that will adopt these solutions. The speed, reliability and capacity of Canada’s communications networks are continuously being improved.  The fundamental function of the service that TSPs provide is the same as it has always been—providing passive connectivity service to Canadian homes and businesses. TSPs should not face any new obligations or liability for providing an increasingly essential service over complex networks that have been built and upgraded for decades.

The TSPs will limit their comments to five issues raised by this consultation: (1) that TSPs should retain their status as passive carriers when providing Internet service required for AI and IoT and (2) that any changes to the copyright framework in Canada should account for the investments that TSPs have made and continue to make in their networks that will be the backbone of AI and IoT developments in Canada, (3) that the person instructing an AI should be deemed the first owner of copyright in a work created by that AI, (4) that there should be an exception to copyright for text and data mining, and (5) that there should be an exceptions to anti-circumvention provisions to facilitate repair and interoperability in the IoT space.

In all cases, any potential changes to the Copyright Act should not burden TSPs or create potential risks of liability for business acting as intermediaries.

TSPs as passive carriers

The Consultation Paper calls for comments with respect to infringement by and liability of AI applications and AI-generated or AI-assisted works. The Consultation Paper does not contemplate liability for intermediaries such as TSPs and the TSPs strongly support this position.

Under the Copyright Act, intermediaries such as TSPs are the subject of safe harbour provisions that shield them from obligations or liability in connection with alleged or proven copyright infringement where they are passive carriers acting as “mere conduits”. TSPs are “passive” intermediaries that merely provide the technical means for communicating and storing content. Regardless of whether ISP users, including those using AI or devices, incur liability under the Act,  TSPs must not be required to monitor the activities of AI or devices to support the enforcement of private rights.Footnote 1 To do so would increase the cost of the provision of internet services to Canadians, raise concerns about the neutrality of the Internet in Canada and introduce a disincentive to the massive infrastructure investments necessary to bring the benefits of 5G networks to Canadians and Canada’s economy. The existing intermediary framework for passive infrastructure or “mere conduits” works well and is the foundation of a vibrant online marketplace and digital services sector in Canada, which is rapidly expanding to include AI and IoT.

The TSPs’ passive role as intermediaries is the same whether or not a user’s Internet activity engages AI software or IoT devices. AI and IoT devices are ultimately just other uses of the Internet by a home or business. AI and IoT do not operate independently of a particular subscriber, be it a human or legal person. In all of these cases, TSPs provide the technical means for communicating and storing content; their role does not change based on the nature of nature of an end-user’s activity online. Thus, the safe harbour that applies to passive carriers should continue to apply without limitation. The Government should accordingly avoid adopting any measures that would impair the ability of ISPs to fulfill their critical function for Canadian households and businesses.

Importance of protecting investment in networks

TSPs provide the Internet services upon which the Internet of Things is built. Indeed, IoT devices and advancements would not be possible without robust infrastructure built by TSPs.

TSPs have been heavily investing in upgrades to their infrastructure to enable IoT products and Canadians who will benefit from their use to connect to the Internet.  Network investments will and must continue to grow going forward to meet Canadian demand for advanced Internet-based products and services. As the Consultation Paper notes, AI and IoT are fast evolving technologies and TSPs must keep pace with this evolution.

5G in particular promises to be one of the most transformative communications technologies since wireless services were first introduced. Immense improvements in bandwidth, latency, connection density and reliability as a result of 5G network transformation will be a necessary precursor to the proliferation of new use cases for, and applications of, AI software and IoT devices which facilitate data-intense Internet usage. If Canadian companies and innovators are going to be leaders in developing the next generation of intelligent AI and IoT applications that will drive innovation in Industry 4.0 and produce significant economic, employment, environmental, and other benefits for Canadians, world-leading 5G networks will be an absolute necessity.

Building the robust 5G networks that will fuel these advances in automation, AI and IoT will require staggering financial investment by Canada’s facilities-based TSPs. The Canadian Wireless Telecommunications Association estimates that Canadian carriers will need to invest over $26 billion to deploy the physical network infrastructure associated with 5G networks in Canada. In addition, Canadian carriers have already started to spend billions more to acquire the right to use key 5G mobile spectrum over that same time period. Canada’s recent auction of 3500 MHz spectrum (an essential mid-band spectrum for 5G networks) generated a record $8.9 billion in revenue for the Government of Canada, and there are many other high-band frequencies that will be auctioned off in the next two years.

Given the high-stakes associated with the race to developing 5G networks, it is essential that the modernized Canadian copyright framework not create  additional obligations or liability for carriers, which could impact internet costs and disincentivize Canadian TSPs from making the investments in 5G networks  required to harness the next wave of AI and IoT innovation in Canada.

Authorship and ownership of works created with the assistance of AI

Regarding the call for comments on possible approaches regarding authorship and ownership of works generated by or with the assistance of AI, the TSPs support the second approach outlined in the Consultation Paper, which attributes copyright authorship to the person, natural or corporate, who makes arrangements for the creation of the work. They do, however, urge caution in making any changes to the Copyright Act just yet given that there is not yet international consensus on this matter.

The concept of “making arrangements for the creation of the work” should be interpreted in a manner consistent with existing Canadian copyright law principles, such as the exercise of skill and judgment. The Supreme Court of Canada has interpreted “skill and judgment” as follows:

By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work.  By judgment, I mean 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. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.Footnote 2

This approach provides the same protections to all works, whether created by a person alone or with the assistance of AI. This adheres to the fundamental principle of technological neutrality, which provides that the Copyright Act should not be interpreted or applied to favour or discriminate against any particular form of technology.Footnote 3 Further, as the Consultation Paper recognizes, this approach promotes certainty for the courts and for market participants. This will help achieve the government’s goal of supporting innovation and investment in AI and other digital and emerging technologies in all sectors in Canada.

As well, the practical consequences, and potential unintended consequences, of changing the law with respect to authorship and ownership (bedrock aspects of the international copyright regime), are not yet well understood. While a subject of academic discussion, other countries have to date rightly been hesitant to change these aspects of copyright law. Canada too should take a cautious and not-yet approach in this regard.

Exceptions to copyright infringement to facilitate text and data mining

The TSPs support creating an exception to copyright infringement where works are used by AI and IoT. To support investment and innovation in AI and benefits of machine learning, this exception should permit reproductions that are entirely automated or that employ both computer automation and some human operations (such as labeling by humans of data in the works).

The exception should, however, cover only copyright-protected works or other subject-matter that are lawfully accessible to the public. The exception should not extend to non-public data that is copyright-protected, which should continue to require a licence that permits text and data mining activities, or to works that are unlawfully accessed or obtained, including without limitation confidential data, trade secrets, know-how and data that TSPs carry as passive conduits. Further, where copyright-protected works or subject-matter have become publicly available without the authorization or consent of the copyright owner or exclusive licensee, such as through a data breach or breach of a contractual obligation to maintain confidentiality of the data, the exception should not apply in respect of that data. This exception should not apply where the operator of the AI knew, or reasonably ought to have known, that the copyright owner had not authorized the availability of the copyright-protected works.

Subject to the limitations described above, it is in the interest of encouraging innovation to enable AI to access and ingest publicly available copyright-protected works without infringing copyright.

Exceptions to anti-circumvention provisions to facilitate repair and interoperability

The TSPs also support the introduction of new or expanded exceptions to the prohibitions on circumvention of technological protection measures (TPMs) to facilitate a right of repair and to ensure greater interoperability between devices.

Regarding the proposed right of repair, the Consultation Paper states that TPMs were conceived as an incentive to copyright owners, especially in the creative industries, to make their works available in digital formats. Facilitating a right of repair does not undermine the purpose or interfere with the creative industries’ ability to rely on TPMs to protect their investments. Rather, it allows consumers that have already purchased a product from the copyright owner to extend that product’s lifespan. This is beneficial to consumers and to the environment as it will help reduce unnecessary electronic waste.

Regarding the proposed expansion of the existing TPM exception for interoperability, this measure is necessary to support innovation in the IoT space. There is an inherent need for devices to be able to interact and share information in order to fulfill their purposes. As IoT devices become more prevalent in the Canadian economy, hundreds or thousands of individual devices or services, each developed by different companies will need to be able to communicate to form seamless networks. The existing TPM exception, which is limited to facilitating interoperability between two computer programs, is unnecessarily narrow and should be broadened to reduce uncertainty for market participants that can contribute to innovation and competition in this space.


The TSPs appreciate this opportunity to comment on the Consultation and look forward to continuing discussion on these issues.
Yours truly,

Fasken Martineau DuMoulin LLP

Jay Kerr-Wilson

cc  Stacey Smydo