Artificial Intelligence – Very Real Creations: AI as a Generator of I.P.?

With an over-expanding array of applications that rely on artificial intelligence (“AI”), we’re finding more and more ways to use them, sometimes to unexpected results. In fact, some AI applications can now even create new things in ways that are not dependent solely on choices and manipulations by human creators and operators. Yes, in today’s world, IA can now create things on its own, leaving the law to wonder what to do with that new reality. Can our legal system deal with creation of inventions or works of authorship by machines (or rather AI)?

That very question is now being asked in most jurisdictions worldwide, as we collectively try and deal with an uncomfortable realization that, maybe, we as humans are not the only ones capable of creating intangible creations that may worthwhile to protect as intellectual property (“I.P.”). Indeed, this is happening as to works like texts, images and music, and even as to what would be considered inventions, had a human been the creator. When such a creation comes about as a result of the operation of an IA program, should we acknowledge it or, instead, sweep it under the rug and hold that the humans responsible for the initial execution are the akin to the authors or inventors? We should note that this issue exists as to copyrights (as in the case of that painting) but also does for industrial designs and inventions.

A good example of that trend is the Canadian Intellectual Property Office (“CIPO”) on-going consultations as to whether we should recognize the possibility of AI acting as actual creators of other types of I.P. such as patentable inventions or works of authorship. It may be that we do what to open that door, or maybe we just want to avoid the whole mess and stick with the status quo. The jury is still out on that one… for now.

Recently, CIPO may have creaked the door opened, as it allowed the registration of copyrights to a certain painting, the authors of which are presented as a human and, yes, an IA application. To my knowledge, this is a first in Canada though it has happened elsewhere, such as in India last year as to that very painting.

So, according to Canadian copyright registration No. 1188619, the co-authors of the painting at issue are an individual named Ankit Sahni, on the one hand, and “Painting App, RAGHAV Artificial Intelligence”, on the other hand. The work of joint-authorship is thus presented on the Canadian register as resulting from the combined creative work of two entities (for lack of a better term), one of whom (which?) is a computer program.

It is not yet clear how the law can/would/will deal with this kind of factual situation, including as to what the rules are when a “thing” is named like as an author (or an inventor, if it gets to that), including who the I.P. belongs to off-hand, who can be seen as the co-author (or co-inventor) and why, whether the IA could have been named as the sole author (or inventor), etc. One could also consider to extent to which an AI application must be identified as a creator when it as involved -the same as when a human creator is involved, etc. When IA considered more than a mere tool for a human creator? As you can imagine, the potential questions abound.

Though the idea may seem simple, allowing us to consider IA as a creator or inventor does (will) lead to all sorts of consequences that we collectively would do well to think through, before proceeding.

At any rate, IA creating stuff is an inescapable reality that, one way or an other, we collectively have to deal with. Unfortunately, as every jurisdiction makes these kinds of decision without necessarily paying heed to what is being done elsewhere, we may very well end-up with an I.P. legal system that is even more messy than it currently is, as down the line some countries may allow IA as creators and some may not. As I was writing above, every jurisdiction is currently grappling with these questions.

Canada Set to Increase IP-related Governmental Fees by 25%

The Canadian Intellectual Property Office (“CIPO”) published a proposal this week to increase most governmental fees, within a couple of years, by something like 25%. Yeah, lo and behold, setting such fees in stone for decades on end doesn’t make for the most financially sound government service, what do you know?

Though we’ve grown accustomed to such fees remaining fixed in Canada (or even being slightly lowered as was the case for 2022), for years and years, CIPO is now realizing not increasing these fees over the years has turned its operations into a deficit-running operation, something that just isn’t sustainable. As a result, CIPO now has to consider a substantial increase of the fees it imposes in matters relating to I.P. protection, in Canada.

The page at issue contains a list of proposed fee increases, that include, for example in matters relating to trademarks, to give you an idea:

  • Application for the registration of a trademark: from $347.35 to $434.19;
  • For each additional class: from $105.26 to $131.58;
  • Recording of a transfer: from $100.00 to $125.00; and
  • Extension of time : from $125.00 to 150.99$.

Given this proposed increase (which in all likelihood will indeed materialize), we of course recommend to all businesses to seek to protect their I.P. assets without waiting any further.

Appeal Court Confirms No Moral Rights Issue Triggered by Sale of Books in Discount Stores

The Québec Court of Appeal recently confirmed a 2021 decision about the sale of books from the series Les Chevaliers d’émeraude in discount stores, something the author had objected to, in a lawsuit alleging (inter alia) that the sale of unsold and unsellable copies violated her moral rights to the integrity of her works.

The decision at issue, 91439 Canada ltée (Éditions de Mortagne) v. Robillard (2022 QCCA 76), essentially refused to contradict the initial judgment as to the issue of moral rights, thereby confirming the sale at rebate of unsold copies by the editor, and then by the rebate retailer Dollarama, did not pose a copyright (moral rights) problem, in this specific case anyway.

Though thousands of copies of the books at issue were sold off in a manner that resulted in left-over copies being essentially sold off (at $2.00) in certain discount stores (from the Dollarama retail chain), the court concludes there simply was insufficient evidence as to the actual condition of the copies that went on sale at Dollarama stores to be able to conclude anything as to the integrity of the works.

In short, though some other author may eventually be able to make such an argument, if a similar case ever gets to court, the plaintiff would have to bring forth much more evidence that the works had been defaced, cut short, deformed or somehow affected by the poor condition of the books at issue, before a Canadian court can entertain the idea that it should be equated to a violation of moral rights.