Transcripts
Amy Qi: Hi, I'm Amy Qi from McGill University and with me is Jay Kerr-Wilson,
Speaker:a partner in Fasken's Ottawa office and head of the firm's copyright practice.
Speaker:Welcome to the third episode in our series, "Perspectives -
Speaker:AI and Copyright", exploring the legal challenges posed by adoption of generative artificial intelligence systems.
Speaker:In today's episode, we're exploring the tricky question of whether or not AI generated content should be protected by
Speaker:copyright and if so, who should be considered the author.
Speaker:As generative AI has become more accessible to the public with programs like Dall-E,
Speaker:ChatGPT and Midjourney, there have been a number of cases where generative AI has shown its disruptive potential in
Speaker:various industries and markets.
Speaker:With this rise in AI generated works comes the collateral impacts on copyright law and the discourse surrounding the
Speaker:copyright ability of this content.
Speaker:To start just briefly again, what is machine learning and generative AI?
Speaker:Jay Kerr-Wilson: Sure. So machine learning is a form of artificial intelligence,
Speaker:or AI, where the computer system in effect can analyze large amounts of data and can,
Speaker:uh, learn the sort of the rules that apply to that data and then predict based on that data what a particular outcome
Speaker:may be. So an example is, you know, based on everything you've watched on Netflix,
Speaker:Netflix algorithm then learns your preferences and it can recommend other titles that it thinks you might enjoy.
Speaker:Generative AI is the next iteration of this, where the system not only learns and predicts,
Speaker:but is able to generate new content based on this prediction.
Speaker:So a large language model reads millions of books.
Speaker:It then learns how books are constructed and narratives are constructed,
Speaker:and based on that, in response to a prompt, it can generate a brand new book that's not written by a
Speaker:human, but that is based on what it understands.
Speaker:The process for for writing a book is.
Speaker:Amy Qi: And just to really narrow in on this point, what are the current capabilities of generative AI?
Speaker:Jay Kerr-Wilson: Well, it seems like every day people are pushing the boundaries of what AI can do.
Speaker:But certainly AI right now, um, can generate, you know, entire novels.
Speaker:It can create photorealistic images of things that don't actually exist.
Speaker:It can create full length videos.
Speaker:Basically, you know, at this point, anything that can be created by a human and then reproduced
Speaker:in a digital form and put into a training set, there is an AI system out there that someone has figured out
Speaker:how to create new forms of that same content.
Speaker:Amy Qi: Okay, so the US Copyright Office launched an initiative in 2023 to examine various copyright law and policy issues
Speaker:raised by AI. In 2024, they published the first part of their report on Copyright and Artificial Intelligence
Speaker:focusing on digital replicas. And this year, the second part of the report addressing the
Speaker:copyrightability of AI generated material was released.
Speaker:The report seeks to analyse the "type and level of human contribution sufficient to bring these outputs within the
Speaker:scope of copyright protection in the United States".
Speaker:Can you summarise some of the key conclusions and recommendations in the report?
Speaker:Jay Kerr-Wilson: Yes, absolutely. I should caution that the second report that you referred to was actually released in in draft only.
Speaker:Um, and the register of copyright, who is the person who's in charge of the US Copyright Office
Speaker:was fired by the, uh, administration shortly after the draft was released.
Speaker:So we're not quite sure what the status of that second part of the report is.
Speaker:But, um, in terms of the content and the conclusions and recommendations,
Speaker:they felt at this point that questions about.
Speaker:And so what we're looking at is where an AI system generates new content,
Speaker:so generates a new book, generates a new video.
Speaker:What is the copyright protection that should be given to that AI generated content.
Speaker:And the recommendation, at least in draft of the report from the Copyright Office,
Speaker:was that these questions right now can be resolved under the existing laws without having to have specific legislative
Speaker:amendments. And and it goes back to sort of what is the purpose of copyright law.
Speaker:So copyright is intended to protect the original expression in a work created by a human author.
Speaker:So even if you know, a person uses AI to assist in the creation of a work,
Speaker:the purpose of copyright is to protect the human element of that creation and not necessarily the AI generated element
Speaker:of that of that content. So we've seen where the office has ruled that copyright does not extend to purely generated,
Speaker:purely AI generated material, or where there's sort of insufficient human contribution to
Speaker:the expressive elements. And, and where you have sort of humans and AI working side by
Speaker:side, that will be a case by case determination of how much creative input did the human have?
Speaker:What was the role of AI in deciding whether or not the output or the product,
Speaker:or the creative solution should be protected by copyright or not.
Speaker:Amy Qi: As outlined in the Copyright Office's report.
Speaker:Authorship is a foundational guiding principle for determining copyright protection.
Speaker:What does this legal concept of authorship entail and how does AI fit into it?
Speaker:Jay Kerr-Wilson: So authorship is sort of the foundation of all creative endeavour under the Copyright Act.
Speaker:So author is the term that that not only the US copyright system,
Speaker:the Canadian copyright system, assigns to the original creator.
Speaker:So you can think of an author of a book or an article, but,
Speaker:you know, a sculptor is the author of the sculptures that she produces.
Speaker:Uh, the photographer is the author of the photographs that they produce.
Speaker:Author is not explicitly defined under the US legislation.
Speaker:Um, but US courts have consistently not recognised copyright in works where there is no human author.
Speaker:So there has at this point been a sort of consistent line of cases that says there must be a human author identified,
Speaker:uh, in order for copyright to be extended.
Speaker:And just to quote the Supreme Court, the said the author of a copyright work is the person who
Speaker:translates an idea into a fixed, tangible expression entitled to copyright protection.
Speaker:Now, this quote sort of predates the modern generative AI systems,
Speaker:because arguably, we now have generative AI systems that are also able to translate ideas into fixed,
Speaker:tangible expression. But the idea is that it's a human being who's doing this translation.
Speaker:And, you know, certainly you can think of AI being used in ways that assist and enhance human expression without
Speaker:limiting copyright protection.
Speaker:But it's where the the entire creative process has been taken over by AI,
Speaker:where then courts and the Copyright Office have found there'd be a lack of protection.
Speaker:Amy Qi: And why is this identity of the author so central to copyright law?
Speaker:Jay Kerr-Wilson: You know, as I said, the whole creative process begins with the author.
Speaker:And and it's not just that the author has an idea, but the author has then expressed that idea in some tangible
Speaker:form. So copyright does not protect ideas.
Speaker:It protects the expression of ideas.
Speaker:Writing the book, producing the painting, making the sculpture.
Speaker:Um, and a lot of the, uh, structure and the economic activity
Speaker:that's based on the Copyright Act in Canada starts with and is dependent on an author.
Speaker:So in Canada, in most cases, the author of copyright is going to be the first owner of copyright.
Speaker:They may decide to sell that copyright to somebody and or license it,
Speaker:but they're the first owner of copyright.
Speaker:So that means that all economic transactions for the distribution and use of copyright content flows from the
Speaker:author. Also, it's important to realise that copyright is designed as a time limited protection.
Speaker:So currently in Canada's, many and many other jurisdictions in the world.
Speaker:The term of copyright runs for the life.
Speaker:Life of the author. Plus 70 years.
Speaker:So 70 years after the death of the author.
Speaker:The term of copyright expires and the work becomes part of the public domain,
Speaker:which means it's free for anybody to use without having to get permission or consent.
Speaker:Even in a situation where the author has sold her copyright to somebody else,
Speaker:who's then going to, umm, distribute it or or produce some economic value from it,
Speaker:it's still the author's lifespan plus 70 years that determines the term of copyright,
Speaker:even if the author doesn't own the copyright anymore.
Speaker:Um, so so the notion of author is very central to both sort of constructing the economic relationships around copyright,
Speaker:but also understanding when copyright protection ends in a given work.
Speaker:Amy Qi: How does this concept of authorship translate to Canadian copyright law?
Speaker:Jay Kerr-Wilson: I think it's fairly safe to assume that under Canadian law, as under US law,
Speaker:an author has to be a natural human being.
Speaker:So AI cannot be the author of a work.
Speaker:And there's some very practical reasons why this is from a policy point of view.
Speaker:Uh, makes sense. Um, because if an AI system can be an author,
Speaker:this will cause complications and disruptions into this system.
Speaker:We have built over centuries that that recognise copyright as being a human centric,
Speaker:uh, regime. So first of all, under our current legal system,
Speaker:a computer system can't enter into a binding legal agreement.
Speaker:So if the... if an AI system is the first owner of copyright in a work that's been generated by that AI system,
Speaker:there is no way for the copyright in the work to be assigned or to be licensed.
Speaker:It will, in effect, get locked without some change to the copyright or some other mechanism that says somebody other
Speaker:than the author in that circumstance would have to be the first owner of copyright.
Speaker:And second, how do you determine the lifespan of an AI system?
Speaker:So if the if an AI system is the author of a work and the term of protection is life of the author plus 70 years,
Speaker:how do we decide when the life of an AI system has ended in the 70 year clock starts running?
Speaker:So if the AI I system that generated the work is updated to a new version.
Speaker:Does that mean the old version has died and works created by that old version will then fall into the public domain in 70
Speaker:years? So, you know, these are sort of philosophical angels dancing on the head of a pin kind of questions.
Speaker:But they're central to how copyright works in Canada.
Speaker:And so we need to have some sort of resolution if we're going to move away from the concept of a human being,
Speaker:being the first owner of copyright in works.
Speaker:And conversely, if AI cannot be the legal author of and cannot be the owner of copyright,
Speaker:then arguably the work that's produced by the AI doesn't have an author,
Speaker:doesn't have an owner, and isn't protected by copyright, which also has consequences for sort of the economic value
Speaker:of AI generated work. If anyone can freely infringe those works without any legal repercussions.
Speaker:But, you know, I don't think we're necessarily stuck because I think that Canadian courts and Canadian courts have always
Speaker:taken sort of a middle ground between a European version of copyright that's very author centric and an American version
Speaker:of copyright that tends to be very sort of economic value based.
Speaker:And Canada has kind of found its own middle ground on deciding rules of copyright.
Speaker:So I think that Canadian courts could find, even if a work is largely the product of AI or generated by
Speaker:AI, the person who gave the instructions and took the steps that resulted in the creation of the work will be the
Speaker:author. So they're the one that made the creative choices that were then reflected by the AI processes to
Speaker:produce this work. Viewing it that way then we just slot AI into another technological tool,
Speaker:very sophisticated and very powerful, but, you know, we've been using computers to assist in the
Speaker:animation process for decades.
Speaker:We've used technology in a lot of different ways to assist the human creative process,
Speaker:but always recognise the creativity as a result of human choices and decisions.
Speaker:So I think the approach a Canadian court would take is, at the heart of creation,
Speaker:was there a human being making the necessary creative choices,
Speaker:and if so, that human being is then the author and will be the first owner,
Speaker:not the AI system they used.
Speaker:Amy Qi: Okay, shifting back to the US, but still related to what we're talking about,
Speaker:the US Copyright Office concluded that given the current available technology,
Speaker:prompts alone, don't provide sufficient human control to make users of an AI system the authors of the output,
Speaker:like what you're saying. Um, can you explain some of the analysis that they use to come to this conclusion?
Speaker:Jay Kerr-Wilson: Sure. And this is kind of an answer to the analysis that I suggested that may come through a Canadian court.
Speaker:So what they're saying is, you know, if you put a one paragraph prompt into ChatGPT and the
Speaker:prompt is, please write a 500 page historical fictional novel based on the life of Henry the
Speaker:Eighth, and it produces 500 pages of text in response to that prompt.
Speaker:I think with the Copyright Office is saying is, you know, you giving it that one suggestion does not
Speaker:translate into you being the author of the 500 pages.
Speaker:And I think there's a good argument to that is, you know, how much creativity and how many choices did the
Speaker:human author or the human make, versus how many choices and how much creativity was left up
Speaker:to the AI? And it's going to be different in every case.
Speaker:And I think the office is also probably rightly, looking ahead to the continued development and evolution of
Speaker:the technology, where we may see less human intervention and less of sort of the prompt
Speaker:approach to AI, where AI expression becomes more automated and
Speaker:less controlled by the system of sort of prompts.
Speaker:So, so, you know, I think that was philosophically what their concern was about simply saying,
Speaker:'Well, whoever puts the prompt in is the author' is that may not really reflect what's actually happened in the
Speaker:circumstances.
Speaker:Amy Qi: The report also includes a specific section addressing expressive inputs.
Speaker:What are expressive inputs and how do they differ from the traditional text prompts that we were just talking about?
Speaker:Jay Kerr-Wilson: I could say use my example. Give me a 500 word or 500 page novel based on the life of Henry the Eighth.
Speaker:Or I could instead give the AI five books about Henry the Eighth,
Speaker:that somebody else has written i haven't written them.
Speaker:And say using these books, then generate a play about the life of Henry the Eighth.
Speaker:So in this case, the prompts are sort of texts that somebody else has written,
Speaker:and it may be one text, it may be a number of texts, and I'm simply telling the AI system what to do with those
Speaker:texts. But I haven't really contributed much in the way of the the creative expression.
Speaker:And the same is now true with using video or images.
Speaker:So you could, you know, give a AI system a passage from a book and ask it to create
Speaker:animation based on that passage.
Speaker:So then the, the, the challenge becomes, in that case, I'm not even the author of the input.
Speaker:Arguably, if I give the AI a prompt, I'm the author of the prompt and we can decide,
Speaker:okay, well, was that prompt enough of a contribution that I'm also author of the output?
Speaker:the challenge the report is identifying is if I'm using other people's works and
Speaker:having the AI generate new work based on those other works, I can't claim any other any authorship in those expressive
Speaker:inputs because they were already authored by somebody else.
Speaker:Amy Qi: Okay. And beyond the copyrightability of AI generated works alone,
Speaker:there's an additional layer of discourse for modifying AI generated works where the content generated by AI is an
Speaker:intermediary step. For example, someone can generate an image using AI and then alter it
Speaker:with their own original art by painting over it or adding text.
Speaker:So how does copyright work in these cases?
Speaker:Jay Kerr-Wilson: So again, it's the heart of all of these questions is who has contributed the creativity to the end
Speaker:result. So if you take a bunch of random AI generated images,
Speaker:but then you impose your own human creativity and you manipulate those images and come up with something
Speaker:completely new. So it's not just copies of what AI has done,
Speaker:but there's a new element of human expression in the work you have created based on the AI one.
Speaker:I think the office, the Copyright office, is recognising that,
Speaker:you know, you are going to be the author of the copyright in this new manipulated work,
Speaker:even if you weren't authors of the input.
Speaker:And there's non AI analogues to this.
Speaker:So you know, we're very familiar that people make artwork all the time by clipping pictures,
Speaker:pictures out of magazines or clipping texts.
Speaker:And they rearrange these pre-existing clipped photos or texts to make some new artwork.
Speaker:And you know, they're going to be the author of the new artwork.
Speaker:It's a separate question of whether they've infringed copyright in the source material, but certainly they're the
Speaker:author of this new transformed thing.
Speaker:So I think what the office is saying is it's not the use of AI that's going to disqualify something from protection.
Speaker:It's going to be whether the end result is primarily the product of AI creativity,
Speaker:in which case it won't be protected, or human creativity, even if it's human creativity that
Speaker:manipulates AI generated content.
Speaker:And then I think that there would be protection.
Speaker:Amy Qi: And then just circling back, I know we've touched on this briefly already,
Speaker:but could similar analysis and legal frameworks be used in Canada?
Speaker:Jay Kerr-Wilson: Yeah. So it may not always come to the same result, but I think that the the analysis would be very similar and
Speaker:it will be case by case. So there's not going to be one rule that applies to everything.
Speaker:So the, the rule that the or the test that the Supreme Court has developed in deciding whether or not something is
Speaker:original. So so in order for a work to be protected by copyright,
Speaker:it has to be original. And the court has said in order for a work to be original,
Speaker:there has to be some element of creative decision making.
Speaker:There has to be some creative choice that's made when the work is produced.
Speaker:So, you know, you can see imagine a spectrum where I say, hey,
Speaker:ChatGPT, write me a new poem, and I don't give it a subject matter,
Speaker:and I don't give it a style, and it will produce a poem in response to that prompt.
Speaker:Um, and you can see a Canadian court saying, you know, you're not the author of that poem,
Speaker:and that poem is not protected by copyright, based on the analysis that the US Copyright Office has said
Speaker:is there simply wasn't enough, there was no creative decision making.
Speaker:However, if I say to ChatGPT, please compose a haiku.
Speaker:You know about the Swiss Alps in the springtime.
Speaker:And it does. Then, arguably, I've given it enough creative choices.
Speaker:I've chosen a style. I've chosen a subject matter that maybe I am the author of that resulting haiku,
Speaker:and there should be some sort of protection.
Speaker:So I think Canadian courts would likely, under our test, maybe protect more than the very strict test
Speaker:that the US Copyright Office has expressed.
Speaker:But I think the analysis would be very much very similar.
Speaker:Amy Qi: Okay. And speaking of case by case, there are a few specific cases where these different
Speaker:scenarios have come into play and informed the analysis that we've just discussed.
Speaker:To illustrate these legal frameworks in practice, I think it's helpful to briefly review some of them.
Speaker:The first is from December of 2023, where upon review, the US Copyright Office refused to
Speaker:register a work titled tourist.
Speaker:What was this decision about?
Speaker:Jay Kerr-Wilson: So this was one where, um, so the subject matter was artwork.
Speaker:So it was an AI generated that was supposed to resemble a painting,
Speaker:but it wasn't physically painted.
Speaker:It was always a digital image generated by AI.
Speaker:So in this case, the the artist took a photograph, put it into the AI system,
Speaker:and then asked the AI system to, in effect, apply Van Gogh's Starry Night as a style.
Speaker:And then the output was a version of the photograph that had been transformed,
Speaker:being inspired by Van Gogh's Starry Night, and in that case the Copyright Office decided this could not
Speaker:be protected by copyright, because it was the AI system that was responsible for determining how to
Speaker:merge the source of the source material and the style, and deciding what are the elements of Van Gogh's Starry
Speaker:Night that should be incorporated, and how should those be incorporated?
Speaker:So they found that there was simply no way to distinguish the elements of AI creativity from human
Speaker:authorship in the final output.
Speaker:So under their test, that requires sort of really identifiable human authorship,
Speaker:there could be no protection.
Speaker:Amy Qi: That's really interesting. Um, there's also another one where there well,
Speaker:multiple other ones where there's been different attempts to copyright graphic novels,
Speaker:which utilise a combination of artwork generated by AI and human authored text.
Speaker:One of them is this graphic novel called 'Zarya and the Dawn'.
Speaker:How was the legal analysis applied for this?
Speaker:Jay Kerr-Wilson: So very consistently? Um, so in this case, the Copyright Office determined that the images had been
Speaker:generated by AI without sufficient human authorship.
Speaker:So the images that had been generated by AI were not protected by copyright.
Speaker:But the text of the graphic novel had been written by a human.
Speaker:Um, so in that case, the the Copyright Office, in effect unscrambled the omelette and said,
Speaker:okay, so the images aren't protected by copyright, but the text is.
Speaker:Um, and so it sort of applied the test separately to the two elements of a graphic novel.
Speaker:And that was the conclusion.
Speaker:Amy Qi: All right. And what are the impacts of these decisions and where do we go from here?
Speaker:Jay Kerr-Wilson: So I think we're into a really interesting phase where we are going to continually challenge this idea of
Speaker:what is human authorship and where is the line between, you know,
Speaker:AI generated images and human images.
Speaker:Because, you know, we're probably not that far away where people can use neural networks to,
Speaker:in effect, think of an idea that will then automatically be translated by an AI into some sort of expression.
Speaker:So if you have a human who has the idea, but the entire expression of the idea is AI,
Speaker:what does that look like? I think this is going to challenge the whole notion of derivative works,
Speaker:where we have human generated content that is then adapted.
Speaker:So we have a book that's adapted into a movie by AI, and then that movie is re-adapted into a book,
Speaker:like, I think there's so much potential for people to experiment and to play and to push boundaries,
Speaker:that there's going to be just non-stop challenges to our the notion of of copyright and protecting human expression.
Speaker:Ultimately, some of these questions are going to be decided in litigation around the question of authorship and
Speaker:ownership. Uh, some of it's probably going to require some element of legislative amendment.
Speaker:We may have to define author, uh, and, and define the limits of the use of AI
Speaker:technology. But, you know, none of these questions are going to be easy.
Speaker:And the problem is the technology is advancing so quickly relative to the ability of governments to react is,
Speaker:you know, I don't think we're ever going to catch up.
Speaker:I think we're into a stage now where the creative process is always going to be,
Speaker:uh, have tension with the, the legal structures that are meant to create that or to protect that process.
Speaker:Amy Qi: Wow, what a great answer to end on.
Speaker:Thank you, Jay, once again for your insight on the copyrightability of AI generated content and the concept of
Speaker:authorship. As we've seen, there's a lot to navigate, and I think you've really distilled down the Copyright
Speaker:Office's report and the two cases that we've seen.
Speaker:So thank you for listening to this episode of perspectives, AI and copyright.
