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