Submission to the Consultation on Copyright in the Age of Generative Artificial Intelligence (Jan 15, 2024) 

 

Technical Evidence

• How do businesses and consumers use AI systems and AI-assisted and AI-generated content in your area of knowledge, work, or organization? 

We, Artists and Lawyers for the Advancement of Creativity (ALAC), as a non-profit association facilitating a pro bono legal clinic and providing other legal resources for artists – i.e., creators working in all disciplines of the arts – know that artificial intelligence (AI) is currently in use by artists for research. 

AI is an extraordinarily powerful tool that artists from many disciplines can harness for AI-assisted works. AI can be used to help generate draft text, images and even roughs for audio and video. It is used in the ideation phase, for inspiration boards and also for final content creation. AI can reduce costs and time to create content and allow artists to scale and create works previously not possible. 

Artists will use AI to calculate royalties due for their works and those who are in business to sell their own works, for example, visual artists and self-published writers, will make increasing use of AI for tracking their own sales and inventory. 

Additionally, we know that some artists have used AI as a medium for their work, where the expression and presentation of AI output amounts to social commentary. In other words, the use of AI is a form of expression, and often a comment about AI, for example, as a reflection of bias in society. 

 

Text and Data Mining

• What would more clarity around copyright and TDM in Canada mean for the AI industry and the creative industry?

Clear information could decrease the amount of illegal reproduction of copyright works used for Text and Data Mining (TDM), which despite its label does not only include literary text but can also include, among other things, visual art, photography, music, motion pictures, and so on.  

The question of to what extent, and in what circumstances, dealing with pre-existing works is “fair dealing”, and therefore not infringing, is a live question in Canada.  So-called TDM activities not only leverage the works of the creative community to train AI, exploiting human ingenuity and originality and advantaging machine learning, but also compete with and threaten to displace the role of artists in society. Given the challenges to visual artists, literary authors and other creators making a living wage in the creative economy, there should be a reward that goes back to the creative community that reflects the economic value extracted from such use of works. To the extent that copyright protects works that are used to train AI, creators should be entitled to a just reward for use of their works. From this perspective, it should be absolutely clear that scraping copyright works for the purpose of TDM without authorization from copyright owners and holders whose works are used in generative AI is an infringement of copyright content created by artists working in all disciplines, including literary, artistic, dramatic and musical works, choreographic works, works displaying lyrics and musical notation, sound recordings of audio works, and performers’ performances (e.g., dance, songs and spoken words), and audiovisual works (e.g., motion pictures including animation) and interactive works  (ie.g., video games) that are derived from these and other works.  Output from AI models that infringes the economic rights of a creator’s copyright is also likely to infringe their moral rights.                              

Clarity on any fair dealing extending to TDM activity will be needed.  Ambiguity in the law tends to favour economic interests that can afford to test the waters.  In the face of ambiguity over whether fair dealing may extend to TDM activities, most members of Canada’s creative community would not have the resources, nor would they be prepared to risk the expense and time required to litigate the matter, knowing the result would be uncertain. Creators also hesitate to use AI-generated content as it exposes them to potential claims of infringing copyright material that they could not identify. 

Transparency is also desperately needed so creators will know what works were included in the datasets on which AI models have been “trained” (a common usage ironically implying human intelligence!) or programmed, and so creators will be able to monitor compliance if they have authorized TDM. Developers of AI models should be required to maintain detailed logs of the sources used to train the AI. These logs would allow creators to track the use of their works and ascertain that such use had been properly authorized. Another way to provide transparency would be to require AI output to include a list of the works that have been used in the making of that output, again allowing creators to monitor the use of their work and also to provide comfort when using AI-generated work themselves.

Additionally, transparency is needed with respect to the use that AI technology will make of output as well as any content or instructions provided by creators. Creators need to know if any of their instructions regarding use will in turn be integrated into future datasets and output to be used by others.  

It would be problematic to introduce any new exceptions into the Copyright Act to deal with TDM or works made by generative AI in reliance on TDM. There is no one-size-fits-all model for how TDM works. Any exception introduced could have significant negative or unintended repercussions on the creative industries, some caused by the works of artists being falsely attributed to persons who did not create them including fake images and texts, sound and audiovisual recordings and other deceptively identified artistic expression purportedly by name artists (e.g., painters, photographers, poets and film directors) and some by works euphemistically in the “style of” name artists. 

Any exception for TDM is likely to lead to floods of machine-generated works, including some infringing works, that will compete with original copyright works created by human authors and their publishers and producers and distributed by broadcasters, wholesalers, retailers and other distributors. Resulting lower incomes for a great many artists in this confusing and overly competitive marketplace will cause many to give up professions which may already be marginal for them – now less viable for some as a result of the lockdowns of the COVID pandemic years.  

• Are rightsholders facing challenges in licensing their works for TDM activities? If so, what is the nature and extent of those challenges?

Our experience communicating with artists working in all disciplines of the arts is that creator rightsholders generally don’t want to have their works used for Text and Data Mining and the development of generative-AI models, unless they could license their works for clearly specified purposes or uses, subject to compensation for making their works available for those purposes or uses. While there are a few examples of voluntary licensing initiatives having been introduced by AI developers, we have not seen instances where creators have accessed or used these systems.  

The flooding of cultural markets by millions of AI-generated works will impair the market for the original works of authors and performers and disincentivize human creators. It seems inevitable that most if not all creators would be discouraged and demotivated when AI-generated works appear to have filled the gap for a work on a particular subject, or if the plots of thinly disguised sequels to a novel or television series have been scooped for AI-generated content.  Fewer works by human creators will be successful in a crowded and confusing marketplace. AI-generated works that rely on TDM are not original works of human authorship and therefore should not be protected by copyright, which is indicative of ownership of original works. 

We observe that, in any case under existing law, AI-made works without the intellectual involvement of humans exercising their skill and judgment do not have the “originality” required for copyright as determined by the Supreme Court of Canada in a 2004 case. We note that, because of generative AI, it is our view that these criteria for original works should now additionally include a measure of creativity by a human author. 

Lack of transparency is also currently a challenge because if creators don’t know their works are being used for TDM, how can they engage in a licensing discussion with the AI developer.  To begin with, creators should know that TDM does not only use literary texts, and they should know or be able to find out easily if their literary, dramatic, musical, visual and other artistic works and other subject-matter have been subjected to TDM. They or copyright holders of their works, and ALAC as an organization, have little or no information about the content of the datasets now being used to make publications of text (e.g., print and audio books and software code) and images (e.g., prints and photographs), sound recordings (e.g., music and radio programs) and audiovisual recordings (e.g., motion pictures including animation) that will compete with the copyright works of human authors. They have no ability to monitor uses by AI developers and platforms, have little information about how much of this training of AI models may be making unauthorized use of copyright works (including works of their own) – other than from media reports about alleged infringements – or, if the use of copyright works is authorized, do not know whether the training includes their instructions for their content when developers instruct the AI to produce the output.

Right now, even when the economic rights of copyright owners and holders are obviously infringed by AI-generated works that are derivative works substantially similar to the original work, the difficulty or near-impossibility of getting evidence of TDM and anyone’s liability remains a hurdle. In addition, copyright owners and holders are deterred by the formidable costs of endeavouring to investigate and prosecute such claims. It should consequently be the responsibility of AI developers to develop AI tools that will not provide prompts to users of their systems that could recreate copyright works used as input, whether or not those input works were licensed for permissible TDM.  

We also note that there is some discussion in the creative community around whether rights management information may be used in relation to TDM activities. It is premature to know what technical or other solutions may be appropriate, and further investigation into options is desirable prior to eventual amendment of copyright legislation. At this time, what is clear is that if an artist uses digital rights management information (“DRMI”) to indicate that a work may not be used for TDM activities, the DRMI notice must be respected, failing which copyright should be deemed infringed. However, creators of works must not be required to use DRMI in order to preclude or “opt-out” from use of their works in TDM activities or to safeguard their works from use in TDM without their permission.

• If the Government were to amend the Act to clarify the scope of permissible TDM activities, what should be its scope and safeguards? What would be the expected impact of such an exception on your industry and activities? 

There should be no legislated exceptions to copyright for Text and Data Mining, which is unfortunately a misleading term, as the “mining” can include, among other things, visual art, photography, music, motion pictures, and so on. Any new exception introduced to the Copyright Act for TDM will negatively affect artists working in every discipline of the arts and likely have unintended consequences.   

As a safeguard against the likelihood of persons in the public being deceived by inaccurate, misleading, manipulative, fraudulent or false information and by deep fakes, legislation should require all displayed, published or made-available AI-generated content to be marked or labelled as “machine-generated” or “generated by artificial intelligence”.  

Another safeguard should be to require AI developers to develop AI tools that do not provide prompts to users of their systems that could recreate copyright works used as input, whether or not those works have been licensed for TDM use. Generative-AI developers and platforms as well as persons falsely claiming credit as author or other creator, entities falsely claiming to be the publisher or producer, and distributers that are aware of such fraud should be liable or share liability for copyright-infringing output, including the infringement of the author’s or the performer’s moral rights of attribution very likely to accompany infringement of their economic rights. 

Section 30.71 of the Copyright Act permitting temporary reproductions for technological processes should be amended to specifically exclude TDM, if not ruled out first by court decisions.  

Before any legislative change, the courts in Canada may decide that the current “fair dealing” exception to copyright permits some TDM with respect to copyright works. Since AI developers all have their own method of training AI models and these methods will likely continue to change as technology develops, the “fair dealing” analysis must be done on a case-by-case basis. 

Regulations for fair dealing specifically for TDM may seem premature right now, but will be needed sometime in future if some generative-AI developers and platforms treat this defence as a loophole and arbitrarily help themselves to the work of creators. Legislative amendment in 2012 that introduced the fair dealing exception for the purpose of “education” had an unforeseen severe impact on creators’ incomes as a result of the lack of a definition and the tempting broadness of what might be considered “fair”. Regulations for fair dealing specifically for TDM should provide a clear and narrow definition of any allowable dealing and should be sufficiently flexible to restrain expansion of TDM, as generative AI will continue in rapid flux. 

Unlike an amendment to the Copyright Act, regulations can be changed more easily as circumstances change. If the TDM issue is not resolved expeditiously and sufficiently by regulations on fair dealing under the Copyright Act or, alternatively, by regulations under the Artificial Intelligence and Data Act, which is currently under consideration by a committee of the House of Commons, collective licensing subject to negotiated licenses or a mandatory tariff for specific TDM uses would be appropriate. 

Collective licensing of TDM should be permissible in any case. Any exception for TDM is likely to lead to an increased number of infringements of copyright, and members or affiliates of collective societies may want their rights with respect to TDM to be handled by their collective society. However, a licence from a collective society should not preclude the possibility of direct licensing of TDM or litigation by an individual creator or other copyright owner or holder.   

The proposed Artificial Intelligence and Data Act currently under consideration by Parliament unfortunately does not specifically address the very real probability of significant damage in the copyright landscape arising from generative AI’s potential scale of use, the severity of harm to creators, and the economic imbalance between high-impact AI systems and copyright owners and holders.  

• Should there be any obligations on AI developers to keep records of or disclose what copyright-protected content was used in the training of AI systems? 

AI developers should certainly be required to keep and retain records of all works used to produce or “train” generative-AI models and to release this information promptly to allow public inspection as well as inspection and monitoring by authors, other creators and copyright owners or holders, whether or not in the context of a perceived or an alleged copyright infringement or tort (e.g., libel or slander, appropriation of personality rights or unjust enrichment). 

Without a requirement to both maintain and disclose records, it becomes extremely difficult or impossible for a rightsholder (as well as too expensive, probably even for a collective society representing many rightsholders) to find out whether their works were used to train the AI model and whether there has been an infringement of the copyright or a failure to seek a licence. 

• What level of remuneration would be appropriate for the use of a given work in TDM activities? 

Fees should be negotiated by the generative-AI developers and platforms with copyright owners or holders, or with their collective societies, subject to arbitration if no licence is agreed or subject to a mandatory tariff determined by the Copyright Board. 

Criminal penalties for copyright infringement and, if opted for by a copyright owner or holder, the statutory civil damages for plaintiffs that are available need to be increased as the infringers or enablers of infringement are most likely large international technological corporations. Otherwise, the high costs of individual investigation and prosecution will make enforcement prohibitive.

Authorship and Ownership of Works Generated by AI

• Is the uncertainty surrounding authorship and ownership of AI-assisted and AI-generated works and other subject matter impacting the development and adoption of AI technologies? 

The term “author” is not defined in the Copyright Act, but the legislative language and jurisprudence imply that “authors” are humans. Also undefined but implied, performers of performers’ performances must be human. Anyone can call themself an author or a performer regardless of whether or not they have created a copyright work or other copyright subject-matter. We submit, however, that it is not honest or ethical to do so for an AI-generated work.  This crosses a line into commercial deception of the public by trading on the public’s long-standing presumption of human authorship and the valuable goodwill associated with human authorship. 

More and more creators will use generative AI for research and many of them will create AI-assisted works, but generative-AI content without the intellectual involvement of human creators exercising skill and judgment (established as the criteria for original works by the 2004 decision of the Supreme Court of Canada) is not “original”.  As a result, there is no copyright protection for such AI-generated works, and this should not change. In the context of artificial intelligence, the criteria for assessing the originality of a work should clearly require creativity by a human author or other human creator.  AI-generated material lacking originality should not be protected by copyright and should not be permitted to display a copyright notice. 

We are of the view that AI-assisted works and other subject-matter should be protected by copyright, assuming originality, effective and verifiable human control, and appropriate attribution to their human authors and performers. An AI-assisted work may and would ordinarily display a copyright notice. There should, however, be a disclosure requirement that AI was used in generating the work.

A significant concern with granting authorship of AI-generated works to owners of those works is that it could encourage bad actors to generate works for the sole purpose of eventually bringing claims against human creators for infringement. Given the near-endless works that such malicious persons could generate, these AI-created works could flood the market and compete directly with original works created by human authors and their publishers and producers as well with the broadcasters, wholesalers, retailers and other distributors of their works. This will have the adverse effect of creating confusion in the marketplace, driving down prices, and inhibiting human creators’ incentive to generate new works. 

It should be an offence for any person or entity, identifying themself as the owner, maker, publisher or author of an AI-generated work or other subject-matter without significant human intellectual involvement, including a measure of creativity (as we propose above) in addition to skill and judgment, to place a copyright notice on its publication.  A machine-made work or other subject-matter lacking originality should never be protected by copyright. Nor should AI-assisted work or other subject-matter be protected by copyright unless it contains substantial original material created by humans and unless its entire content is under effective and verifiable control of humans and at least one human is identified as its author or publisher. 

All owners of AI-generated and AI-assisted works should be liable for infringements of copyright and for torts (e.g., libel or slander, appropriation of personality rights or unjust enrichment), as should the developers involved in creating and training the AI model. Producing any AI-generated or AI-assisted work which imitates or mimicks the distinctive style of another writer could be viewed as an appropriation of personality rights. 

It is noteworthy that if an AI model is trained only on licensed works, and the licence addresses clearance for outputs that include similarities, the risks associated AI-generated and AI-assisted works would be materially reduced. Also, without transparency requirements, knowing whether an output is likely to have reproduced a substantial part of a prior work will be challenging. Infringements of the economic rights of copyright are also likely to be an infringement of a creator’s moral rights of attribution.

An AI-assisted author should be liable or share liability, not just with respect to their own text, images and other changes (e.g., their edits, adaptations, additions and substitutions), but also because of the possibility that AI-generated material in the content of the work, unbeknownst to them, may infringe copyright or otherwise violate the rights of other authors. They may unwittingly incorporate AI-generated material that puts them at risk and they should ascertain that the use of all copyright works in datasets for TDM used to train models that they used have been authorized by the copyright owners or holders or are works in the public domain. For example, a scriptwriter who is engaged by a producer to revise a draft script made by generative AI should be cautious.

Regulations should include an obligation to name or identify – and publish or display on every AI-generated publication or production – a responsible person or entity who will be liable in addition to any named and identifiable author or publisher of the publication or production.   

 Infringement and Liability regarding AI 

• What are the barriers to determining whether an AI system accessed or copied a specific copyright-protected content when generating an infringing output? 

The biggest barrier will be the lack of information on the input of copyright works into an AI system if courts want evidence of TDM to establish access by the defendant despite general availability of a creator’s work in the marketplace or a public forum, as well as substantial similarity between it and allegedly infringing AI-generated material. This assessment of similarity will be subjective, may not be immediately obvious and will be hard to determine or adjudicate, particularly in the absence of information about input. Copying may occur on actual reproduction on input into an AI system or may result from ordering of output words and images by an algorithm. 

There should be an obligation to keep and retain records of all copyright material input into an AI system and to make them fully available for monitoring by rightsholders and their collective societies.  Prior to any legal requirement by legislation or regulation, Government should ask AI developers to do this on a voluntary basis. Knowledge or awareness of infringement or use of TDM without rightsholder consent should be presumed in law if AI developers or users of their AI tools fail to keep records and comply with other regulations.   

• Should there be greater clarity on where liability lies when AI-generated works infringe existing copyright-protected works? 

AI developers and platforms and those claiming authorship and identifying as publishers and producers of an AI-generated work in publications and productions as well as distributors that are aware of such fraudulent claims and identification should be liable or share liability for infringing copyright works. The apportionment of liability should be determined by the courts on a case-by-case basis.     

                                                                                                                                                                                                                                                                                         Comments and Suggestions

Artists and Lawyers for the Advancement of Creativity (ALAC), a non-profit corporation operated by volunteer entertainment and intellectual property lawyers, creators and law students, that among other activities, facilitates and co-ordinates a pro bono legal clinic for artists. This legal clinic, founded in 1986 and long known as ALAS (Artists’ Legal Advice Services), provides summary legal advice to artists working in all disciplines of the arts and to arts organizations offering services to artists and other creators, mostly unable to access more expensive alternatives.

Since its incorporation in 1991, ALAC has facilitated and coordinated the ALAS legal clinic, where volunteer lawyers have provided summary legal advice at the ALAS legal clinic to artists and other creators in all arts disciplines and to arts organizations offering services to artists since it first began in 1986 – over 37 years ago. In addition to continuing the ALAS legal clinic, ALAC provides educational sessions focused on different areas of law and art, in which industry and legal experts provide artists with information and guidance. Additionally, we offer legal resources that provide summary information on legal topics that are relevant to creators, currently available at the website (alas.ontario.ca).   

Over the past several years, we have seen first-hand the legal challenges that have emerged from AI, both from a creator and user perspective. Ever since the launch of Chat GPT and Dall-E, for example, there has been a significant increase in the number of artists attending the ALAS legal clinic with questions about AI. Furthermore, our educational sessions devoted to AI have been the most popular sessions we have ever had. Creators are both excited and nervous about the future of AI. 

We understand the need for Government policy to preserve the balance between supporting innovation and investment in AI as it positively and negatively affects the creative sector and preserving the incentive for human authors and other human creators in all arts disciplines to create. ALAC welcomes the opportunity provided by this Consultation to make our comments and suggestions:  

As AI continues to develop at an amazing speed, it is our view that it is premature right now for Parliament to pass any copyright legislation with respect to generative-AI systems unless it becomes necessary to curb abuses of Text and Data Mining (TDM) immediately. Perhaps with slight amendments to the Artificial Intelligence and Data Act, currently under consideration by a House of Commons Committee, regulation of AI-generated works to curb abuses of TDM could be accomplished well prior to any amendments to the Copyright Act, which would likely be quickly outdated by further AI developments in Canada and elsewhere.  

It may be that some use of TDM and resulting AI-generated output will be accepted by courts, perhaps as “fair dealing”, and this may suffice for the time being to deal with AI until it becomes necessary to set parameters on fair dealing, preferably by regulation in order to remain flexible.  

Section 30.71 of the Copyright Act permitting temporary reproductions for technological processes should eventually be amended to specifically exclude TDM.

Authors and other creators of copyright works or other subject-matter or, if authorized, their publishers, producers or collective societies, should be able to choose to license AI developers for TDM for specific purposes and uses, subject to negotiated limitations on use, fees, record-keeping and other conditions negotiated with generative-AI developers and platforms.

There should be no exceptions to the Copyright Act to accommodate developers of generative-AI and platforms. Exceptions would encourage more use of entirely AI-generated works that would substitute for, compete with, and impair the market for original copyright works created by the skill and judgment of human authors as well as, in our opinion, their creativity, including original AI-assisted works.  

What is desperately needed right now – prior to any eventual amendments to the Copyright Act – is much more information and transparency about any AI systems being used to generate published materials including the sources of the data relied on for content. This information should be easily available to rightsholders and the public, not just in case of alleged copyright infringement but in any case. Creators and users of AI systems should be entitled to know what has been included in the datasets on which AI models have been “trained” and to be able to monitor compliance if they have authorized TDM. Furthermore, AI developers should develop generative-AI tools that will not provide prompts to users of their systems that could recreate copyright works used as input or deliberately imitate the style of specifically named human authors. 

AI developers as well as generative-AI platforms and credited publishers and producers of AI works as well as individuals to whom authorship of such AI work is attributed should clearly label all generative-AI work as machine-generated and should be liable or share liability for infringing output. It should be an offence for any person or entity, identifying itself as the maker, publisher or author of an AI-generated work without significant human intellectual involvement including a measure of creativity, to place a copyright notice on its publication or production. Penalties for copyright infringement and statutory damages available to plaintiffs should be increased as the infringers or enablers of infringement are most likely to be large international technological corporations.

To recognize copyright in AI-generated works without originality due to human skill, judgment and creativity and without effective and verifiable human control would disrespect authors, performers and other artists working in all disciplines of the arts, demean their professions, reduce incomes and force some to look for other careers, as well as reduce the number of jobs generally in the cultural sector of the Canadian economy.  This would be a devastating loss to Canadian culture, economy, and society. 

Parliament should not jump prematurely to enact copyright legislation on AI in this extraordinarily disruptive time before Canadian society gets accustomed to generative AI and the inevitable huge change to Canadian culture. There should be certainty that any changes to the Copyright Act will be compatible, to the extent reasonably possible, with the copyright laws of Canada’s main trading partners, particularly the United States, the United Kingdom and the European Union, as well as former colonies of countries with compatible laws.   

Technological progress of artificial intelligence is applaudable, and we marvel at the text, images and sound that can be produced by generative AI and recognize that AI-generated material can have great value if used responsibly in appropriate contexts, but it should not encroach on human authorship and societal values.  Paragraph 2 of Article 27 of the Universal Declaration of Human Rights reminds us that “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” It should not be forgotten that our Copyright Act is based on human authorship including the sole rights vested in authors set out in Section 3 and that any exception from copyright with respect to AI must pass the 3-step test in Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works, echoed in the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty and in the Canada-US-Mexico Agreement, providing that copyright exceptions must not “unreasonably prejudice the legitimate interests of the author.”