Many of you have read about the dispute over copyright ownership of the monkey-selfie, where a primate took a digital photo that went viral and for which the owner of the camera tried to claim ownership. Ultimately the U.S. Copyright Office, in its draft Compendium of the U.S. Copyright Office Practices, Third Edition, August 19, 2014, Chapter 300, stated that the photo was not subject to copyright, and therefore not the property of the photographer who owned the camera, because it was not created by a human being. The U.S. Copyright Office has also stated that it will not register works produced by nature, animals, or plants, such as murals painted by elephants, cut marks found in natural stone, or driftwood shaped by the ocean.

In Canada, we could expect a similar result. To qualify for copyright protection in Canada, subsection 5(1) of the federal Copyright Act requires every original literary, dramatic, musical and artistic work, to have an author who is a natural person, with the exception of cinematographic works that can be made by a corporation.

A problem arises with the Internet of Things (IoT) where machines are becoming increasingly complex and interconnected, capturing, communicating and exchanging information, often over wireless networks, with other machines in what is known as machine-to-machine (M2M) technology. Cisco estimates that 25 billion devices will be connected in the Internet of Things by 2015, and 50 billion by 2020. That is a staggering number – more than the number of humans on the planet. M2M is being applied in a variety of industries, from telematics in smart cars, factory automation, health care, to the running of your household appliances such as thermostats and refrigerators.

Much of the information being gathered by machines is very valuable to corporations. As the machines become even more intelligent, the machines will be operating not just as tools or sensors collecting data, but also as producers of works with little or no human intervention. The question arises as to who will own these machine-generated works? The law in this area is complicated and is evolving at different rates in various countries. As mentioned above, in Canada our Copyright Act does not protect literary or artistic works created by non-humans. As well in the U.S., the draft Compendium states that “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” This assumes that all machines will produce a predictable result. But with artificial intelligence, and the complexity of the information being exchanged, as well as limits of predictability in human mobility and the impact of variables or inputs on other inputs, the resultant works may not be quite so predictable or mechanical.

As machines are able to synthesize billions of bits of data and create valuable works that are unable to be created by a human author, claims as to their ownership may come from the producers of the underlying programming, the owners of the machines, the investors in the technology, the network or machine operators, or the end-user subjects about whom the data is being collected, or others.

Some countries, such as the UK and New Zealand, are perhaps more advanced in copyright law by allowing copyright protection for computer-generated works. In those countries, the author of a literary, dramatic, musical or artistic work that is computer-generated is deemed to be the person who makes the “necessary arrangements” for the creation of the work.

Perhaps it is time for Canada to follow suit in its copyright reform, in order to remain a competitive marketplace for IoT and M2M technology. In the mean time, anyone seeking to protect their computer-generated works in Canada under Canadian copyright law, should ensure some creativity is contributed from a human author and that the other tests for originality and fixation are met.