Consultations on Copyright for Artificial Intelligence (AI) and the Internet of Things (IoT)

July 23, 2021

The Government of Canada last week announced consultations on a copyright framework for artificial intelligence (AI) and the Internet of Things (IoT). A goal of the consultation is to gather evidence to help determine whether and what copyright policy measures should be taken to ensure Canada’s copyright framework achieves its policy objectives and related priorities in the face of the challenges brought about by AI and IoT.

A consultation paper outlines the challenges to the copyright framework for each of these topics and presents questions to help design specific options and approaches to address them, including:

Artificial intelligence (AI)

Text and data mining (TDM)

1. What barriers does the Act pose for TDM?
2. What kind of TDM activities are stakeholders conducting, and what steps are involved (e.g. making reproductions of copyrighted works; circumventing a TPM; extracting and labelling data, etc.)?
3. Who are the main actors in the TDM and AI value chains (e.g. are there third parties who provide services to assist in TDM activity)?
4. What kind of copyright licenses for TDM activity are typically available, and how do these licenses meet the needs of those conducting TDM activity?
5. Are rights holders facing challenges with TDM activity and in licensing their works for TDM activity? If so, what is the nature and extent of those challenges?
6. What is the current role of TPMs and digital locks in TDM activity? What barriers do rights holders face in employing TPMs to prevent infringing activity in the context of TDM? Similarly, what barriers do TPMs pose for users conducting TDM activity?
7. What are common outputs of TDM activity (e.g. scientific research; AI applications; databases; various models; business knowledge, etc.), and what subsequent uses are made of these outputs?
8. Are there concerns whether these outputs infringe copyright (e.g. do the outputs include complete reproductions or a substantial part of the works that were mined, licensed or otherwise)?
9. Are the results or outputs of TDM activity sold or licensed to other parties who then make other subsequent uses of the outputs?
10. Are there concerns that the use of copyright protected works in TDM could affect or infringe the moral rights of rights holders set out in section 14.1 of the Act?
11. Are there experiences of TDM approaches in other jurisdictions that could inform a Canadian consideration of this issue?

Authorship and ownership of works generated by AI

1. How are individuals and organisations using AI to produce or to assist in the production of works or other copyright subject matter?
2. Are AI-assisted works the result of deliberate choices by humans (potentially exhibiting skill and judgment), are there important variations in that regard depending on the AI application, and how could that change as AI becomes more autonomous?
3. What challenges or disputes are being encountered when determining copyright and authorship or ownership for works or other subject matter produced by or with AI?
4. Is the uncertainty surrounding authorship or ownership of AI-assisted and AI-generated works impacting the development and adoption of AI applications to produce works or other subject matter? If so, how?
5. What risk mitigation measures are businesses taking to protect their investments when using AI to produce works and then commercialising those works? Similarly, what risk mitigation measures are businesses taking when commercialising AI applications that can be used to produce works?
6. What kind of licenses are being employed for the use of works or other subject matter produced with AI? What are the implications for licensing if those that develop the AI are deemed to be the authors or owners of AI-generated works?

Infringement and liability regarding AI

1. When commercialising AI applications, what measures are businesses taking to mitigate risks of liability for infringement for the AI application itself and for an AI-generated or AI-assisted work?
2. What challenges are copyright holders facing when licensing their rights in the context of AI? What challenges are copyright holders facing when enforcing their rights in the context of AI, and how could these be solved?
3. What are the barriers to determining whether an AI accessed or copied from a specific work during the process of generating, or contributing to, an infringing work?
4. To what extent do AI applications contain reproductions of the copyrighted content used in training them? Are there important variations across types of AI?
5. Are creators and users of AI applications facing additional risks of infringement for activities besides reproduction (e.g. making AI-generated or AI-assisted content available online)?
6. Similar to the questionabove, who are the different human parties involved in creating an AI system that can generate works, or assist in generating works, and what factors affect their role in that process?

Internet of Things

Repair

1. What kinds of repair activities require access to copyrighted works (e.g. software) and circumvention of TPMs (e.g. repairing, maintaining, testing, diagnostics, modifying, enhancing, and achieving interoperability with another product)?
2. Which repair activities, if any, require copying all or part of the software protected by a TPM; and if so, what is the nature and extent of the copying that is required to repair a product?
3. What kinds of TPMs hinder repair of software-enabled products (e.g., do the TPMs control access to copyright subject matter, or prevent copying of copyright subject matter such as software)?
4. What forms do the TPMs take (e.g. are TPMs mostly digital in form, or are they instead part of the physical configuration of a product)?
5. What is the nature and extent of effort required to determine whether, which, or how many TPMs must be circumvented for repairs? For example, are there instances where multiple TPMs must be circumvented to repair a product, or it is difficult to determine whether a digital lock is actually a TPM in the sense of copyright law?
6. Do individuals and businesses who repair software-enabled products sometimes realise after the fact that they have inadvertently circumvented a TPM?
7. To what extent do repair activities involve: (a) a repair person/company circumventing a TPM on behalf of a client as part of the repair service; and (b) a repair person/company making or providing a technology, device, or component to another person to be used in order to circumvent a TPM for the purpose of repair?
8. Is cyber security, public safety and/or the disclosure of personal information at risk when a person circumvents a TPM for the purpose of repairing a product (e.g. interference with the functioning of a product and release of unsafe products on the marketplace); if so, what mitigation measures can be taken to reduce these risks?
9. Are there products, or categories of products, for which the circumvention of TPMs for the purpose of repairing them would introduce undue risks to personal health and safety or to network functionality and public safety access?
10. Do TPMs unduly restrict competition in the aftermarket sector? If so, are particular TPMs or classes of TPMs of concern? Are particular industries or products affected more than others; and if so, how are they affected and how does it affect consumers?
11. What other factors, besides protecting copyrighted works, do original equipment manufacturers consider when employing a TPM to protect software in a product (e.g. quality assurance and protecting their brand, strengthening cyber security, protecting privacy, respecting safety and environmental standards, etc.)?
12. What considerations should be taken into account if copyright owners were required to provide access to software protected by TPM for the purpose of repairing a product?
13. What harm, if any, could be done to the economic interests of manufacturers and their copyright if it would be permitted to circumvent TPMs on their products for the purpose of repair?

Interoperability

1. What is the nature of information needed from copyrighted works to make software-enabled products interoperable?
2. What kinds of TPMs hinder interoperability of software-enabled products (e.g., do the TPMs control access to copyright subject matter, or prevent copying of copyright subject matter such as software)?
3. What forms do the TPMs that must be circumvented to ensure interoperability take (e.g. are TPMs mostly digital in form, or are they instead physical in nature)?
4. What is the nature and extent of effort required to determine whether, which, or how many TPMs must be circumvented to achieve interoperability? For example, are there instances where multiple TPMs must be circumvented to make a product interoperable, or it is difficult to determine whether a digital lock is actually a TPM in the sense of copyright law?
5. Do individuals and businesses who reverse engineer, develop, and/or install interoperable products sometimes realise after the fact that they have inadvertently circumvented a TPM?
6. What are the steps involved in achieving interoperability, including any necessary TPM circumvention activity, and who are the people who perform each of the steps (e.g. does achieving interoperability commonly entail the assistance of third-party services or developing tools to circumvent TPMs)?
7. Do users who can circumvent a TPM to obtain information generally also have the skills to make computer programs interoperable, or do they need assistance in either of these steps?
8. What is the nature and extent of copying (e.g. of all or part of the software in a product), if any, that is necessary to achieve interoperability? Are there important differences between types of products in this regard?
9. To what extent does the requirement that a person must own a computer program or a copy of one, or have a licence to use the program or copy to benefit from the TPM exception for interoperability represent a barrier to certain product development activity?
10. What mitigation measures are businesses taking to reduce legal risks associated with TPM circumvention activity for the purpose of interoperability?
11. To what extent can industry-led initiatives, such as the development of open interfaces, support interoperability between software-enabled products?
12. What factors outside of copyright law do original equipment manufacturers consider when employing a TPM that hinders interoperability (e.g. protecting their market and brand, safeguarding product safety, protecting privacy, respecting environmental standards, etc.)?

The government is seeking additional evidence from stakeholders concerning these challenges and welcomes all comments and perspectives.

Participants have until September 17, 2021, to share their input: https://www.ic.gc.ca/eic/site/693.nsf/eng/00317.html

News Release: The Government of Canada Launches Consultation on a Modern Copyright Framework for AI and the Internet of Things

July 16, 2021 – Ottawa, Ontario

The Government of Canada is committed to ensuring the Copyright Act remains responsive to modern realities and that Canada’s copyright framework continues to be effective in fostering innovation and investment as new technologies develop. To do so, Canada’s copyright framework should support the changing needs of artists, innovators and consumers in a high-tech world.

Building on the stakeholder engagement and committee reports from the 2019 Statutory Review of the Copyright Act, the Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry, and the Honourable Steven Guilbeault, Minister of Canadian Heritage, are launching a public consultation today on a modern copyright framework for artificial intelligence (AI) and the Internet of Things (IoT).

As developments in AI and the proliferation of IoT and software-enabled devices increase, it is crucial to ensure that Canada’s copyright framework is able to respond effectively to new challenges. This consultation touches on a number of topics, including text and data mining, authorship and ownership of works created by AI, infringement and liability regarding AI, and repair and interoperability issues related to technological protection measures.

A consultation paper outlines the challenges to the copyright framework for each of these topics and presents questions to help design specific options and approaches to address them. The government is seeking additional evidence from stakeholders concerning these challenges and welcomes all comments and perspectives. Participants have until September 17, 2021, to share their input: https://www.ic.gc.ca/eic/site/693.nsf/eng/00317.html

Responses received will be made publicly available following the consultation period and will help inform the government’s policy development process to ensure that Canada’s copyright framework for AI and IoT reflects the evolving digital world.

Quotes

“The Copyright Act impacts many sectors of our economy. This consultation will allow us to hear the diverse perspectives of Canadians who want to make sure Canada’s copyright framework supports innovation, investment and competition as digital technologies continue to play a bigger role in generating growth and creating jobs.”
– The Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry

“Canada’s copyright framework must reflect the realities facing our creators and cultural workers in the high-tech world. We know that rapid advances in digital technology have a strong impact on how Canadians create and share cultural products that we all cherish. This is why we want to hear from Canadians and address these challenges with them as we move forward together.”
– The Honourable Steven Guilbeault, Minister of Canadian Heritage

Quick facts

• The government is taking a phased approach to the review of the Copyright Act while considering the recommendations from the parliamentary committees.
• From February 11 to March 31, 2021, the government consulted on how to implement Canada’s commitment under the Canada–United States–Mexico Agreement to extend the general term of copyright protection.
• From April 14 to May 31, 2021, the government consulted on how the use of copyright-protected content online is protected and how individual rights and freedoms in an open Internet are safeguarded, while facilitating an environment where the digital market can thrive.
• Artificial intelligence and the Internet of Things:
  • Artificial intelligence (AI) is a technology intended to replicate human thought by analyzing, learning from and reacting to challenges without human direction. AI serves a role in software and technologies by customizing the user experience, simplifying the analysis of data or reducing the costs of human labour.
  • Internet of Things (IoT) refers to networks of devices equipped with software and sensors that connect and exchange data with other devices using the Internet. Common IoT devices include smartphones, televisions and vacuums. IoT is also significant in the medical, agricultural and manufacturing sectors.
• Through Canada’s Digital Charter and its leadership role in the Global Partnership on Artificial Intelligence, the Government of Canada is making sure that our digital and data-driven economy is built on a strong foundation of trust and that AI is developed and used responsibly to the benefit of all citizens.

Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things

Background

Developments in artificial intelligence (AI) are raising questions as to whether the copyright framework can adequately address new situations. Examples of new situations include the use of copyrighted works as part of text and data mining to train and develop AI applications, and the use of AI to create, produce and distribute literary, musical and other kinds of works. At the same time, the increase in the number of software-enabled products and the growth of the Internet of things (IoT) is introducing its own set of new challenges to copyright law. The IoT highlights not only the importance of technological protection measures (TPMs) for rights holders, but also the barriers to consumers’ ability to repair certain software-enabled products equipped with TPMs that prevent access to software. Challenges are also appearing in certain manufacturing industries, where small and medium enterprises are encountering increasing difficulties in developing interoperable products, in part because of the presence of TPMs.

Consultation

The goal of this consultation is to help the Government ensure that Canada’s copyright framework for AI and the IoT reflects this evolving digital world. The Government welcomes all comments providing additional perspectives or evidence concerning these issues and potential approaches.

How to participate

The paper for the consultation on a modern copyright framework for artificial intelligence and the Internet of things is available online in both HTML and PDF format. Canadians and stakeholders can submit their comments by email to copyright-consultation-droitdauteur@canada.ca by September 17, 2021. Comments received will be made available online as soon as possible following the consultation period.

Participants are requested to submit their comments in a word document so that they are easily convertible to HTML. Please also provide descriptive text for any tables or graphics. Please consult the Government’s Content Style Guide to ensure your document meets the formatting requirements.

(Via Government of Canada)