The artistic world is embracing AI, but with this exciting development comes a legal hurdle: copyright. In Canada, AI-generated art throws copyright law into question. Who owns the rights – the AI's creator, the user who curates the data, or the investor who financed its development? Further complicating matters, can AI works even meet the legal standard of originality? This article dives into the murky waters of AI art and copyright in Canada, exploring the current legal landscape and the fascinating questions it raises.
Current Legal Status
The utilization of AI generated artwork is not currently considered copyrightable in Canada. The Copyright Act, R.S.C., 1985, c. C-42, ("Act") does not consider copyright infringement in the context of AI-generated works. Additionally, works created by AI may risk violating copyright held by others.
AI-generated works spark copyright debates due to the multiple parties involved in creating the work. The AI's creator, user (selecting data and parameters), and owner/investor all have potential claims, making authorship attribution tricky. Additionally, the automated nature raises questions about originality, specifically whether the works meet the Canadian Supreme Court's "exercise of skill and judgment" test for copyright protection.
Recent Developments
In 2023, Innovation, Science and Economic Development Canada ("ISED") released a report titled "A Consultation on Copyright in the Age of Generative Artificial Intelligence." This report details potential legislative changes to the Act. Some of the changes proposed are discussed below.
Legislative Proposals
Given the novelty of AI technologies, Canadian courts have not yet rendered decisions regarding liability for infringement that may result from the use of AI; either through the inputs used to train an AI or through the outputs generated by an AI system in the form of works. However, the ISED report proposes legislative standards for establishing infringement by reproduction, by showing that:
- The infringing party had access to the original copyrighted work.
- The original work was the source of the copy.
- All or a substantial portion of the work was reproduced.
International Context
Though there is no AI-specific legislation or case law in Canada, several copyright infringement lawsuits have been filed in the United States but are still pending adjudication before the courts.
Andersen v. Stability AI et al is a class action lawsuit filed by Sarah Andersen, Kelly McKernan, and Karla Ortiz against Stability AI Ltd., Stability AI, Inc., Midjourney, Inc., and DeviantArt, Inc. The plaintiffs assert that AI generators unlawfully appropriated their art and thus devalued and diluted their work. Specifically, the plaintiffs allege that the defendants (a company that generates AI image generation products) "trained" by copying vast numbers of training images, gathered through web scrapping, allowing their AI generators to reproduce their copyrighted works.
The courts found that the plaintiffs sufficiently proved direct infringement during the pleadings stage. A claim of direct copyright infringement must show: (1) "ownership of the allegedly infringed material" and (2) that "the alleged infringers violate at least one exclusive right granted to copyright holders." Further, direct infringement does not require intent or any particular state of mind.
To make a successful argument of infringement, a plaintiff must show that the defendant copied protected aspects of the plaintiff's work to make the infringing work. Substantial similarity is not an element of a claim of copyright infringement. Rather, it is a doctrine that helps courts adjudicate whether copying of the 'constituent elements of the work that are original' actually occurred, when an allegedly infringing work appropriates elements of an original without reproducing it.
The findings of the court against the AI-generating companies were:
(1) direct infringement by reproducing protected works by scraping (i.e., copying) and reproducing images used as training images for the Midjourney Product;
(2) direct infringement by distributing Stable Diffusion, which contains compressed copies of the training images, as part of the Midjourney Product;
(3) direct infringement by creating and distributing their Midjourney Product, which is itself an infringing derivative work; and
(4) generating and distributing output images which are infringing derivative works.
Likewise, in Zhang v. Google LLC, U.S. District Court for the Northern District of California, No. 5:24-cv-02531., a group of visual artists brought a claim against Google on April 26, 2024, for using their work without permission to train Imagen, its artificial-intelligence-powered image generator. The artist alleged that Google repeatedly violated the Plaintiffs' exclusive rights under the U.S. Copyright Act and continues to do so. The Plaintiffs and the Class members never authorized Google to make copies of their works, make derivative works, publicly display copies, or distribute copies of their art.
Conclusion
The intersection of AI and copyright law remains a complex and evolving landscape in Canada and beyond. The Canadian Copyright Act currently does not address the nuances of AI-generated works, leaving a gap in legislative clarity. However, Canada has proposed the Artificial Intelligence and Data Act (AIDA) focusing on ensuring the responsible development and use of AI, particularly high-impact systems. AIDA aims to prevent bias and harm while holding businesses accountable. Introduced in June 2022 as part of Bill C-27, the bill passed the second reading in April 2023. With new proposed amendments to the bill introduced in November 2023, it may take some time for Bill C-27 to be enacted.
While Canadian courts have yet to rule on cases involving AI-related copyright infringement, cases in the United States, such as Andersen v. Stability AI and Zhang v. Google LLC, highlight the legal challenges and arguments surrounding AI's use of copyrighted materials. These U.S. cases illustrate the potential for claims of direct infringement against AI and the stringent requirements plaintiffs must meet to prove such claims. As AI technology continues to advance, legal frameworks will need to adapt to ensure balanced protection of intellectual property rights while fostering innovation.
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