A Modern Copyright Framework for Artificial Intelligence: IP Scholars' Joint Submission to the Canadian Government Consultation

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and artificial intelligence (AI). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian and international intellectual property law.

In what follows, we explain:
- The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights and interests in Canada’s copyright system, consistent with a robust principle of technological neutrality.
- The importance of ensuring that text and data mining (TDM) activity can be undertaken in Canada without the threat of potential copyright liability. We therefore propose both an opening up of Canada’s fair dealing doctrine to better accommodate TDM activities, and the enactment of a specific statutory provision to confirm that uses of copyright works and other subject matter for TDM (whether commercial or non-commercial) do not infringe copyright.
- The importance of resisting calls to extend copyright protection to AI-generated outputs. We therefore propose maintaining and confirming the existing principled requirements of human authorship and original expression as preconditions of copyright protection, and we caution against any move to establish new neighbouring or sui generis rights in respect of AI outputs. Works generated by AI should remain in the public domain.

As such, we recommend:
- Enacting a broad statutory provision confirming that use of a work or other subject matter for TDM does not infringe copyright. This specific exception should be available to all users, apply to commercial and noncommercial uses, permit the retention and sharing of copies, and be protected from contractual override.
- Amending section 29 of the Copyright Act to make the list of purposes an illustrative list (“for purposes such as”) and adding TDM or data/informational analysis as an enumerated purpose therein.
- Confirming in section 2 of the Copyright Act that “author” means a human being/natural person; and confirming in section 5 of the Copyright Act that copyright shall not subsist in a work created without a human author.