On July 16, 2021, the Department of Innovation, Science and Economic Development Canada in association with the Department of Canadian Heritage announced the commencement of public consultations on the modern copyright framework for artificial intelligence (AI) and the Internet of Things (IoT). The goal of this consultation is to ensure that Canada's copyright framework for AI and IoT reflects the rapid advancements in digital technology.
Advancements in AI and the growth of IoT and software-enabled devices has fueled the governments initiative to ensure that Canada’s copyright framework is able to adequately address new technological situations. These new situations include:
- the use of copyrighted works as part of text and data mining (TDM) to train and develop AI applications.
In Canada there is uncertainty with regards to the extent to which existing exceptions in the copyright framework apply to TDM activity. The Copyright Act (the “Act”) currently allows for two exceptions in the context of TDM activity: 1) the fair dealing exception for research and, 2) the exception for temporary reproductions for technological processes. However, businesses and researchers have expressed concern that these existing exceptions are not well suited to the needs of TDM.
- the use of AI to create, produce and distribute copyrighted works.
The increase in TDM, machine learning, and other technological advancements has resulted in AI creating content which was previously only attributable to humans. At present the creation of a work by AI typically involves some degree of human input, however, over time, an AI system's capacity to independently generate works is expected to increase. The variety of possible human intervention involved in AI-assisted works has created uncertainty as to whether an AI-assisted work would be considered "original" under Canadian copyright law and deserving of copyright protection. As AI capabilities to generate works continue to evolve, the ramifications for creators, rights holders, innovators and content users remains uncertain.
- liability for copyright infringement resulting from AI-generated works
Presently, copyright owners alleging infringement in an AI application or AI-generated work may have difficulty identifying the person, or persons, responsible and establishing liability. Over time, determining liability and infringement will become increasingly complex as the level of human involvement in AI-assisted works decreases and AI's capacity to independently create works increases.
- challenges to consumers and manufacturers regarding the repair and interoperability of software-enabled products due to the presence of technological protection measures (TPMs).
The Act provides legal protections for TPMs by setting out three prohibitions regarding TPM circumvention activities: the prohibition against a) circumventing a TPM, b) providing services to circumvent TPMs, and c) dealing in TPM circumvention technology. The Act does include several exceptions that permit TPM circumvention activity for certain purposes, including to ensure interoperability of computer programs, to conduct encryption research, or to unlock a cell phone to change telecommunications services.
Software that controls the components of products can be protected by copyright. This reduces a consumer’s ability to repair their own purchases when they malfunction or break. In fact, unless their activities are covered by the existing TPM exceptions, consumers and businesses may violate one or more of the TPM prohibitions in the Act if they conduct circumvention activity for the purpose of repairing their product without the authorization of the relevant copyright owner. In addition to TPM circumvention rules under the Act, a person who wishes to repair a product with software embedded in it and who needs to circumvent a TPM to do so could face other potential impediments, such as terms and conditions in any end-user license agreement.
As more products are now embedded with software that controls their operation and features, and that collects data, manufacturers of these products can now choose to protect copyright-protected software and compilations of data with TPMs. Large manufacturers have seized on the ability to use TPMs to protect their copyrighted software from unauthorised uses. This not only allows them to exert some degree of control over how consumers use the software-enabled products but also control how small and medium enterprises (SMEs) integrate into the production value chain. Manufacturers also utilise various proprietary technologies that make it more difficult for others to make interoperable products. As a result, these barriers to interoperability can have a significant effect on the ability of SMEs to innovate and unlock new markets. Though the Act sets out a TPM exception for interoperability of computer programs. However, business owners argue that the TPM exception for interoperability does not provide them sufficient protection from liability.
The newly launched “Consultation on a Modern Copyright Framework for AI and the Internet of Things” is aimed at soliciting technical evidence and views from stakeholders on the above identified copyright-related challenges and what copyright policy measures should be taken to address these challenges. In considering potential copyright measures, the Government will be guided by the following objectives:
- Supporting innovation and investment in AI and other digital and emerging technologies.
- Supporting Canada's cultural industries and preserving the incentive to create and invest.
- Supporting competition and marketplace needs regarding IoT devices and other software-enabled products.
How to participate
The consultation is open through September 17, 2021 and should be sent to email@example.com. Following the consultation, responses will be published online and will inform the policy development process.