AI-Scraping Copyright Litigation Comes to Canada (CANLII v Caseway AI)

Image: Shutterstock (with AI assist)

It was inevitable. After all the lawsuits in the US (and some in the UK) pitting various copyright holders against AI development companies alleging the AI platforms were infringing copyright by reproducing and ingesting copyrighted materials without authorization to train their algorithms to produce outputs based on the ingested content–outputs that in some cases compete directly with the original work—AI scraping litigation has finally come to Canada. As reported by the CBC, CanLII (the Canadian Legal Information Institute), a non-profit established in 2001 by the Federation of Law Societies of Canada “to provide efficient and open online access to judicial decisions and legislative documents” is suing Caseway AI, a self described AI-driven legal research service, for copyright infringement and for violating CanLII’s Terms of Use through a massive downloading of 3.5 million files.

In its civil claim brought before the Supreme Court of British Columbia, CanLII alleges that the defendants, doing business as Caseway AI, violated its Terms of Use that prohibit bulk or systematic download of CanLII material and that in doing so, the defendants also engaged in copyright infringement by reproducing, publishing and creating a derivative work based on the copied works for the defendants own commercial purposes. There is no question that Caseway is providing legal material for commercial gain. Caseway’s services start at $49.99 a month , or $499.99 a year, and offer an AI driven service that “leverages advanced AI to find relevant case law in less than a minute… Designed with a user-friendly chatbot interface powered by proprietary technology, Caseway (is) a robust tool tailored specifically for the legal profession.” Caseway’s Terms of Service have all sorts of disclaimers, however.

In his defence, Caseway’s Canadian principal (and defendant) Alistair Vigier is reported to have said that “court documents are public record, not owned by any organization, including CanLII. Numerous other websites also make these decisions available.” It is true that court documents and decisions are public documents not subject to copyright protection. However, CanLII claims that its database contains more than just the court’s decisions. It says in its claim that it spends significant time to “review, analyze, curate, aggregate, catalogue, annotate, index and otherwise enhance the data” prior to publication. It is this creative effort that turns public documents into a copyright protected document (or so the argument goes). To use another copyright analogy, you cannot copyright a recipe (a “list of ingredients”) but we all know that cookbooks containing recipes are always copyrighted. This is because of the display and illustrations of the recipes, the layout, commentary and other editorial touches. Julia Child’s sole amandine recipe is not just any old recipe for fried sole. Is CanLII’s compilation of “judicial ingredients” protectable? We will have to wait to find out.

CanLII’s case is reminiscent of a similar case in the US, Thomson Reuters v Ross Intelligence. Thomson Reuters operates a subscription-based legal research service called Westlaw. One of Westlaw’s employees allegedly copied Westlaw content to enable Ross Intelligence to build a machine learning platform that competed with Westlaw. Part of Ross’ defence was that the judicial decisions themselves are public domain documents, so there could be no infringement. Westlaw maintained that its case head notes, summaries that described the cases, were copyrightable material. Ross also brought forward a fair use defence arguing transformation, i.e. they had produced something new and different that did not compete directly with Westlaw’s product. Here is a good summary of the case. The court determined that Ross had copied the headnotes but the copyrightability of Westlaw’s numbering system and headnotes needed to go to a jury to determine. While Ross’ anti-trust case against Westlaw has been dismissed, the copyright case is still pending.

Another case that has been cited as a possible precedent is the famous 2004 CCH Canadian Ltd v Law Society of Upper Canada case in which the Supreme Court of Canada ruled that copies of CCH materials made by the Law Society library for its members did not infringe CCH’s copyright because the library was exercising the fair dealing research exception on behalf of the individuals requesting the copies. I personally don’t see the relevance of this case (but I am not a lawyer) since the Great Library’s users were copying only relevant parts of certain documents, for a specified fair dealing purpose. In the CanLII case, Caseway has apparently inhaled the full collection of documents and is doing so for a commercial purpose, with the resultant product (although not identical to the original) competing with it. Moreover, since there is no text and data mining exception in Canadian law, the “transformation” defences available to US-based AI companies (i.e transforming the original materials to produce something different) are not applicable in Canada. This will be an interesting one for the lawyers.

What the case demonstrates is a crying need for some legislative guidance on the question of AI scraping of copyrighted materials in Canada. It may be that CanLII’s collection cannot be protected by copyright, which would provide Caseway a defence without settling the fundamental issue of whether it is a violation of the Copyright Act to do what Caseway did, assuming the material they used was protectable by copyright. A consultation exercise was launched by the government of Canada (through the Ministry of Innovation, Science and Economic Development, ISED) last October, closing in January with submissions posted in June. Since then, there has been silence on the part of the government. With Parliament at a standstill, and the current government hanging on to power by its fingernails, don’t expect clarity any time soon.

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