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Intellectual Property Institute of Canada (IPIC) Submission in Response to Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things
Submission to the Government of Canada
September 17, 2021
The Intellectual Property Institute of Canada (IPIC) is the professional association of patent agents, trademark agents and lawyers practicing in all areas of intellectual property law. Our membership totals over 1,850 individuals, consisting of practitioners in law firms and agencies of all sizes, sole practitioners, in-house corporate intellectual property professionals, Government personnel, and academics. Our members’ clients include virtually all Canadian businesses, universities and other institutions that have an interest in intellectual property (e.g., patents, trademarks, copyright, and industrial designs) in Canada or elsewhere, as well as foreign companies who hold intellectual property rights in Canada.
IPIC is pleased to provide these comments in response to the consultation initiated on July 16, 2021, on a modern framework for artificial intelligence (“AI”) and the internet of things (“IoT”) (the “Consultation”), and the accompanying consultation paper issued by the Government (the “Consultation Paper”).
IPIC appreciates new technologies, including in relation to AI and IoT, give rise to complicated policy questions, including with respect to Canada’s copyright framework. The Consultation Paper raises important questions that are being discussed and debated internationally as to whether copyright frameworks around the world are appropriate for AI and IoT in the evolving digital world. By way of example, the Consultation Paper canvasses challenging issues when it comes to AI and authorship, text and data mining and liability, as well as the right to repair and interoperability when it comes to IoT.
We applaud the Government inviting evidence on these issues from Canadian stakeholders. However, we encourage the Government to first report the evidentiary findings and then to invite comment on possible policy implications and whether legislative change is needed based on the evidence. In other words, we encourage the Government to bifurcate the approach of the Consultation Paper and provide an opportunity for all stakeholders to review the evidence gathered in response to the Consultation Paper and consider whether it indicates a need for revisions to the copyright regime, before contemplating possible policy directions that could have wide-reaching, and possibly unforeseen and unintended consequences.
Generally, IPIC encourages an evidence-based and principled approach when setting copyright policy, and counsels that restraint be exercised before changing the current framework. IPIC is of the view that changes to the current copyright regime to accommodate technology should not be made hastily and should be made only where the evidence demonstrates a clear need for legislative amendment. IPIC also believes it is important that Canada respects its international treaty obligations, including with respect to the Berne Convention and other international agreements to which Canada is a party, while still making policy decisions that permit Canada to remain competitive internationally, and to remain generally aligned with our trading partners, particularly when it comes to AI and IoT.
In short, IPIC recognizes the importance of Canada’s copyright regime in fostering innovation and creativity, but believes it is equally important that policy decisions not disturb the balance that underlies the regime. IPIC’s view is that the current copyright regime may be able to accommodate technological development and foster innovation in AI and IoT with few (if any) legislative amendments to address the issues raised in the Consultation Paper. Where legislative amendment may be warranted, IPIC encourages a principled and measured approach. With respect to copyright works, the traditional approach to “originality” is tied to human authorship. This requirement applies to the protection of works, but not to other subject matter, which are given protection because of the investments made to create them. The current regime is intended to reflect the overall purposes of copyright, which are to create incentives that promote creation and dissemination of works and other subject matter, while also fostering access to and uses of these materials and obtaining a just reward for creators. Ultimately, a principled approach to protecting computer-generated AI outputs should be anchored in these balance precepts.
However, when considering the copyright landscape relevant to AI in particular, questions of when, if, and how copyright may protect data, databases, and algorithms would certainly appear to deserve consideration as a complement to the issues raised in the Consultation Paper. IPIC encourages the Government to invite evidence and consider possible policy directions on these issues as well.
Finally, IPIC cautions against considering copyright issues in a vacuum, including when it comes to AI and IoT. When setting policy, copyright issues should not be considered in isolation, particularly when it comes to interoperability and the right of repair. For example, there are a litany of other important issues to weigh, including relating to privacy, security, and safety.
In view of the foregoing, IPIC encourages the Government to consider the following as guiding principles as it weighs evidence and considers possible policy directions.
Encouraging Responsible Innovation
AI and IoT are important areas of innovation for Canada that should be fostered. IPIC therefore believes it is imperative that there be a legislative framework to ensure protection and provide important tools to encourage and reward innovation in these areas. At the same time, it is imperative that user rights enable responsible innovation.
By way of example, the Consultation Paper canvasses several issues related to liability. In response, IPIC notes that the existing liability provisions in the Copyright Act establish a general, well-accepted framework for analyzing claims of direct and secondary copyright infringement in the context of new technologies. In IPIC’s view, these existing provisions, when applied consistently with their purpose of holding those responsible for infringing acts they commit, enable, authorize, or cause others to commit, appear adequate for allocating liability in the AI context. As a result, there does not appear to be an immediate need to change the liability provisions to deal with AI systems. However, depending on the evidence that comes to light following the Consultation Paper, it may be appropriate to consider legislative amendments to ensure that a party’s use of AI technology does not permit it to avoid liability for infringement simply because an AI system is involved.
IPIC urges the Government to take a measured approach with respect to potential developments in AI and reaffirm core copyright principles, generally intended to balance the rights and responsibilities of copyright owners and users through decades of technological change. IPIC encourages the Government to avoid departing from traditional principles of copyright that underscore the balance currently reflected in the Copyright Act, and to carefully consider the provisions in the Act that are currently available before proposing legislative changes.
Canada’s copyright regime functions well overall, balancing the rights and responsibilities of those who create and use copyright works. Given the current state of technology, existing copyright principles appear sufficient for Canadian courts to continue to address the legal issues that presently appear likely to arise in connection with AI and IoT. For example, as discussed below, Canada’s fair dealing provisions appear to be capable of accommodating certain uses that may arise in the AI and IoT context, such as fair text and data mining activities. While IPIC is currently of the view that the existing fair dealing provisions are sufficiently robust to enable courts to make appropriate determinations, to the extent that any new exceptions are warranted, we would encourage that such exceptions be sector specific and in response to a specific evidenced need.
With respect to IoT and technological protection measures, current mechanisms for regulatory reform should be considered before legislative change. IPIC directs the Government’s attention to sections 41.21(1) and (2) of the Copyright Act, which afford flexibility to introduce specific exemptions on a case-by-case basis by way of regulation.
Since AI and IoT may develop in unforeseen directions over time, restraint is warranted when considering whether established copyright principles appropriately address the various issues presented by AI and IoT and whether changes to the Copyright Act will be necessary. The questions raised in the Consultation Paper are sweeping and are likely to have wide reach. It is therefore important that policy decisions be measured to avoid unforeseen or unintended consequences by making premature policy decisions.
Maintaining the Copyright Balance & Following an Evidence-Based & Principled Approach
Ultimately, IPIC believes an evidence-based approach to copyright reform is essential, with a principled commitment to ensuring balance between rightsholders and users. If evidence reveals that legislative amendments are warranted based on technological developments, it will be important to avoid a copyright framework that inadvertently over-protects users or under protects rights holders. It is important to ensure Canada’s copyright regime rewards investment in AI and IoT innovation, including by protecting original software code, original compilations of data, and original AI outputs, and at the same time encourage creation of copyright materials from which AI systems draw their input. For clarity, IPIC discourages altering the current regime to accommodate hypothetical future innovations and technological developments that have not yet occurred. Legislative amendments should be in response to actual technological developments and what is needed to support imminent innovation.
As noted above, since AI and IoT may develop in unforeseeable directions over time, restraint is warranted when considering whether established copyright principles appropriately address the various issues presented by AI and IoT and whether changes to the Copyright Act are necessary or are necessary yet. For example, while copyright clearance concerns related to text and data mining have been discussed internationally and the issue of permissions from rightsholders should be considered, Canada’s fair dealing provisions accommodate this activity where appropriate. For example, “informational analysis” appears to fall under the purpose of “research”, and the factors to assess whether a particular dealing is fair appear appropriate, if properly applied. Generally, Canada’s fair dealing provisions require a fact specific, case-by-case analysis to determine whether fair dealing has been made of a copyright work or other subject matter. Based on what is now known about AI technology and its potential use of copyright works and other subject matter, the existing fair dealing provisions are sufficiently robust to enable courts to determine which uses are fair and which are not. Subject to evidence that comes to light following the consultation that suggests otherwise, IPIC is of the view that calls for certainty alone ought not to give rise to a specific exemption being introduced to address AI/IoT, and that the flexibility of the fair dealing provisions remains appropriate for the AI industry, as it does for other industries where there are user and owner rights to be balanced.
As another example, as noted, protection for computer-generated works raises challenging issues. From a copyright perspective, human authorship and original expression are at the heart of copyright protection for works. However, investments in the creation of other subject matter such as sound recordings, performers’ performances, and broadcast signals have led to these types of cultural creations being protected as neighbouring rights. The current regime is intended to reflect the overall purposes of copyright, which are to create incentives that promote the creation and dissemination of works and other subject matter, while also fostering access to and uses of these materials and obtaining a just reward for creators. Ultimately, we urge a principled approach to protecting computer-generated works that is anchored in these balance precepts. If evidence reveals a concerning gap in protection that would disincentivize the creation and dissemination of works generated using AI, IPIC is supportive of Canada studying the UK approach to protect computer-generated works, a neighbouring rights model, and possibly sui generis rights and protection, though IPIC takes no position on these approaches at this time.