As connected technologies continue to permeate all aspects of existence, and artificial intelligence evolves, the Federal Government of Canada has launched its “Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things”. The consultation seeks public comment on the interplay between copyright, Artificial Intelligence ("AI"), and the “Internet of Things” ("IoT"). With respect to AI, the consultation paper covers three potential areas of reform: (1) text and data mining (TDM), also known as “Big Data”; (2) authorship and ownership of works generated by AI; and (3) copyright infringement and liability regarding AI. With respect to IoT, the paper outlines twin concerns of repair and interoperability of IoT devices. The comment period is open until September 17, 2021. Submissions may be e-mailed to [email protected].

The consultation arises from the results of the mandated periodic Parliamentary Reviews of the Copyright Act in 2019. The reviews were conducted by the Standing Committee on Industry, Science and Technology ("INDU") and the Standing Committee on Canadian Heritage ("CHPC"). The AI/IoT consultation comes on the heels of two other public consultations relating to possible changes to the Copyright Act held this year—the first, in February, on “How to Implement an Extended Term General Term of Copyright Protection in Canada” (discussed here); the second, in May, on “Modern Copyright Framework for Online Intermediaries” (discussed here). The increased frequency of such consultations, combined with outstanding commitments Canada has made at the international level to amend aspects of its copyright laws, and that the last significant changes to the Copyright Act were in 2012 (nearly a decade ago), all suggest the government is laying the groundwork for major amendments to the Copyright Act, likely in the near future.  

The consultation on copyright, AI, and IoT

Copyright is like water, it ebbs and flows through and around technology. Today, people all over the world produce and consume seemingly infinite content through their increasingly interconnected devices—sometimes with the help (or hindrance) of AI. Copyright legislation and jurisprudence (at least the human drafters and interpreters of it) must continually adapt to these ever-evolving changes.

Artificial Intelligence has proved tricky. AI is used to create all kinds of literary, artistic, musical, and dramatic works. It can do so with or without human intervention. It can even be used to create the illusion that a human has produced the work—as was seen in the new Anthony Bourdain documentary where AI technologies were employed to help recreate the voice of the late chef, author, and host to read a letter he wrote, even though Mr. Bourdain never did so himself. To date, most countries treat works created by AI without human intervention as not protected by copyright. However, works created by humans with the help of AI may be. The approach appears to depend on the context of the creation of the works and the governing copyright laws in the jurisdiction where the work was created. The consultation paper’s interest in the interplay of AI and copyright will be further discussed in a separate upcoming article. 

The Internet of Things (“IoT”) also presents interconnected complexities. “IoT” is the phrase used to denote a network of Internet-connected technological consumer “smart” devices that communicate with each other independently—IoT devices are increasingly ubiquitous: kitchen appliances, thermostats, lights, and much more. Such devices may contain computers with deceptively complicated software that serves to perform the desired functions and communicate with other IoT devices. Under the current Copyright Act, technological protection measures (“TPMs”) can be employed to protect the copyright in the works existing on these devices, but they can also serve as a barrier to consumers’ abilities to repair such devices. A Private Member’s Bill, C-272, An Act to Amend the Copyright Act (diagnosis, maintenance, or repair), introduced into Parliament in February 2021 (discussed here), highlighted some of the tensions in this area and perceived shortfalls of the current Copyright Act.

Through this present consultation, the Federal Government is seeking public comment on what, if any, copyright policy measures should be implemented in respect of AI and IoT and copyright. Specifically, the consultation paper highlights government interest in evidence of how AI synthesizes and learns what is contained in copyright-protected works; how humans factor AI in the creation of copyright-protected works; to what extent copyright-protected works are integrated in AI applications after such applications have been trained and commercialized; and how AI-created works are used by businesses and consumers.

As for IoT, the consultation paper seeks comment on how TPMs are employed across industries and what third-party help is necessary to help circumvent TPMs to repair a product or to created interoperability between products.

At the core appears to be a desire to support innovation and investment in AI as well as Canada’s cultural sectors by protecting innovators’ and creators’ rights and ability to monetize their works, and to ensure that Canada has a competitive marketplace for IoT products and devices that nevertheless permits people to repair the physical products they own and permits innovators to develop the interoperability of devices and software.