Can AI be an author? Federal Court asked to decide in new copyright case

Artificial intelligence (AI) systems are capable of creating artistic works. Does Canadian copyright protection extend to these AI-generated works? This question will be considered by the Canadian Federal Court.

In July 2024, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) filed an application in the Canadian Federal Court to expunge or amend a copyright registration naming an artificial intelligence as a co-author. As we explained here, in December 2021 the Canadian Intellectual Property Office (CIPO) registered a copyright for The Starry Night-inspired image titled Suryast. The copyright registration lists RAGHAV Artificial Intelligence Painting App (RAGHAV) and Mr. Ankit Sahni as co-authors. 

CIPPIC’s application challenges the copyright registration for Suryast and seeks expungement of the copyright, or in the alternative, removal of RAGHAV as a co-author. CIPPIC makes two main arguments: 1) Suryast does not meet the originality requirement for copyright; and 2) an AI system cannot be an “author” under the Copyright Act.

Regarding originality, CIPPIC submits that Mr. Sahni merely provided three inputs to RAGHAV: a base image, a style image, and a value for how strong to apply the style image to the base image. However, CIPPIC submits that merely providing the inputs was a purely mechanical process and no human skill or judgment was used to produce Suryast. CIPPIC further contends that “author” in the Copyright Act only refers to a natural person (i.e., “human being”), and an AI system cannot exercise the common intent required for joint authorship.

US says no to Suryast

In its application, CIPPIC refers to denial of copyright registrations in Suryast in other countries, including the US. CIPPIC refers in particular to the US Copyright Review Board (the Board) decision of December 2023 refusing a second appeal by Mr. Sahni to register copyright in Suryast. 

For context, the Board reaffirmed that AI systems cannot be authors for the purpose of copyright in the US. The Board left the door open for copyright registration of a work authored by a human with assistance of AI, but concluded that Mr. Sahni’s input was insufficient to rise to the level of human authorship. The Board acknowledged that Mr. Sahni conceived of the idea of Suryast but found RAGHAV was the author of the expression of that idea. In refusing the copyright registration, the Board highlighted that Mr. Sahni “exerted insufficient control over RAGHAV’s creation of the work.” 

The Suryast decision is consistent with the US Copyright Office’s February 2023 decision that users of a different, predominantly text prompt-based AI image generator “Midjourney” are not “authors” of the images produced for the purpose of copyright. In that decision, the author of a comic book who used Midjourney to create the images using extensive text prompts was denied registration over the entire comic book (and specifically images created by Midjourney). The author was permitted to register copyright for those aspects she had authored (the text and the selection and arrangement of the images and the text). 

The US Copyright Office confirmed that copyright is limited to human authors and concluded Midjourney was the author of the images. The Copyright Office likened the use of Midjourney to commissioning an artist to create an image, and focused on the fact that human users did not have sufficient control over the generated image. Specifically, there was no way for human users to predict what specific image would result from a particular prompt. 

These decisions show that in the US, control over the output of an AI is considered when establishing human authorship. 

Conclusion

Will Canada take the same approach to AI authorship and AI-assisted authorship as the US? In considering whether an AI can be an author of copyright under the current Copyright Act, the Canadian Federal Court may follow the US. 

However, a recent consultation by the government of Canada, which ended on January 15, 2024, considered authorship of AI-generated works. These government consultations may influence amendments to the Copyright Act, and the Federal Court’s consideration of the issue. 

The issue of originality by an AI system may be addressed in a manner similar to the US; however, we note there is a lower standard for originality (exercise of skill and judgment) in Canada as compared to the US (creativity). While this is unlikely to impact the Suryast case, it is an example of a potential divergence in approach between Canada and the US in future cases involving different AI tools. 

AI-generated works raise other issues for Canada’s IP framework, including but not limited to: 

• Would there be a different result if only an AI system was named an author, without any human co-author?  
• If copyright protection does extend to AI-generated work, then who owns the AI-generated work? 
• How can an AI system assign or license its copyright? 
• How can an AI system waive its moral rights?
• Even if an AI system can be a copyright author, it is unclear whether an applicant is entitled to own these AI works. 
• How can the AI system transfer IP rights to the applicant? Is an AI system creator by default its legal representative? What if the owner is different than the AI system’s creator? 
• What if a user of the AI system was involved in the creation process, and that user is different than the AI system’s creator or owner? 

IP law will adapt to respond to novel questions triggered by AI systems.

The authors would like to thank Russell Walton, summer student, for his contribution to preparing this legal update.