Canada may soon receive guidance on whether an artificial intelligence (AI) tool can be listed as an "author" on copyright registrations. Late last week, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), filed an application with the Federal Court of Canada to expunge or amend a copyright registration for the work "SURYAST" (Fed. Crt. File no. T-1717-24). A copy of that work is shown below. The registration was obtained in December 2021 by "Ankit Sahni", and lists both Mr. Sahni and "RAGHAV Artificial Intelligence Painting App" as the authors of the subject artistic work. In addition to amendment to (or expungement of) the registration itself, CIPPIC's application seeks a declaration from the Court that there is no copyright in Suryat, and in the alternative, if there is copyright, that Mr. Sahni is its sole author.
According to the Notice of Application, Mr. Sahni has attempted to register copyright in this work before copyright offices in multiple jurisdictions with varying success. For example, the India copyright office withdrew a grant of protection about a year after issuance; and the United States Copyright Review Board outright rejected the application.
In Canada, there are compelling arguments that the Copyright Act extends protection to only human-created work. This results from a combination of the scheme of the Copyright Act itself (which inter alia, premises the term of protection for works on the "life of the author", provides authors with unassignable "moral rights", and unlike the United States, does not contemplate the possibility of corporate authorship through a "work for hire" doctrine), plus judicial development around the concept of "originality" (a prerequisite for copyright protection) as requiring an "exercise of skill and judgment". However, the Act itself does not explicitly require human authorship.
The Federal Government is alert to this vacuum, and late last year launched a consultation for "Copyright in the Age of Generative AI". The consultation closed on January 15, 2024. One of the areas of focus was "authorship and ownership". The government flagged three possible approaches to address the uncertainties surrounding the authorship and ownership of works generated by, or with assistance from, AI: (1) clarification that copyright protections only apply to human-created works; (2) attribute authorship on AI-generated works to the persons who arranged for the work to be created; and (c) create a new and unique set of rights for AI-generated works. Nearly 100 companies, industry groups and organizations, and individuals responded, including CIPPIC.
Meanwhile, the Canadian Copyright Office has been recording requests to register copyright in works attributing authorship to AI. This practice appears attributable not to a policy choice, but rather to the limited role and powers of the Office under the Copyright Act. Unlike other jurisdictions, and in particular, the United States, the Canadian Copyright Office does not conduct substantive examination of applications. Moreover, and as noted by CIPPIC in its pleadings, the Copyright Act circumscribes the Office's ability to amend or rectify the Register itself. Instead, it directs the Registrar of Copyrights (or any interested person), to apply to the Federal Court to correct, expunge, or otherwise amend any entry on the Copyright Registry. Interestingly, section 56.1 provides that "where a person purports to have the authority to apply for the registration of a copyright ... on behalf of another person, any damage caused by a fraudulent or erroneous assumption of such authority is recoverable in any court of competent jurisdiction".
That CIPPIC is proceeding by way of application makes it possible for the Court to provide its answer within the next year. However, before engaging with the merits, the Court will need to confirm that CIPPIC is an "interested person" under the Act and thus has standing to bring the claim. To do this, CIPPIC will need to establish that it is specifically affected by the issue or else has "public interest standing". The latter is a matter of judicial discretion and would require the Court to assess and weigh three factors purposively and with regard to the circumstances: whether there is a serious justiciable issue raised; whether the applicant has a real stake or genuine interest in it; and whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts. Typically, this more relaxed approach to standing has been applied in the context of public interest litigation, particularly criminal/constitutional cases. The timing and content of the government's consultation on copyright in the age of generative AI suggests that the third factor may be of particular importance, since regardless of the outcome, a legislative solution may well be on the horizon.
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