Tag: Copyright Registration

Canadian Copyright Registration and AI-Created Works: It’s Time to Close the Loophole

Image: Shutterstock

In July, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa filed an application in the Federal Court to expunge or amend a Canadian copyright registration that claimed an AI program, the RAGHAV AI Painting App, as co-author of a registered work. While the other co-author, an Indian IP lawyer by the name of Ankit Sahni is named as the respondent, the real defendant ought to be the Canadian Intellectual Property Office (CIPO), the organ within the Department of Industry (ISED) responsible for managing copyright registration. It is CIPO’s “rubber stamp, content-blind, absence of judgement” automated system of registration that has led to this situation, putting Canada in a significantly different place from that of the United States or many other countries when it comes to granting copyright protection to works produced by AI algorithms with no or little human intervention.

Last month I wrote a couple of blog posts on the issue of whether content produced with or by generative AI could or should qualify for copyright protection. I looked at the ongoing uphill struggle that two “creators”, Stephen Thaler and Jason Allen, have experienced with the US Copyright Office (USCO) in their attempts to get the USCO to register their works. Thaler claims his submitted work (“A Recent Entrance to Paradise”) was created exclusively by his AI algorithm (the “Creativity Machine”) and, accordingly, it should be recognized as the “author”. However, as the human behind the machine, having invested in creating it, the benefits of the registration should fall to him. He argues that the algorithm carried out the work at his behest, much like a work for hire. Allen, by contrast, claims that although his award-winning work (“Théâtre D’Opéra Spatial) was produced with AI assists, he was the creator through control and manipulation of the prompt process. In neither case has the USCO budged from its position that the works do not qualify for copyright protection on the basis they were not human-created. The same goes for the courts to which the USCO’s rejection has been appealed.

That is the current situation in the US; in Canada it is quite different. Works produced exclusively with AI have been accorded copyright registration, more than once. I have even done it myself! (See “Canadian Copyright Registration for my 100 Percent AI-Generated Work”).

Because Canadian copyright registration is automated and done through a website, an applicant must provide the author’s address, contact details and date of death, if deceased. To work around that, I clearly specified that the work was created entirely by two AI programs (DALL E-2 and CHAT-GPT) with virtually no exercise of “skill and judgement” on my part, this supposedly being the threshold in Canada for creative content that can be afforded copyright protection.

This is how my Canadian copyright certificate No. 1201819, issued April 11, 2023 (I should have tried to register it on April Fools Day), reads in terms of describing the registered work;

“SUNSET SERENITY, BEING AN IMAGE AND POEM ABOUT SUNSET AT AN ONTARIO LAKE CREATED ENTIRELY BY AI PROGRAMS DALL-E2 AND CHATGPT (POEM) ON THE BASIS OF PROMPTS DEMONSTRATING MINIMAL SKILL AND JUDGEMENT ON THE PART OF THE HUMAN AUTHOR CLAIMING COPYRIGHT”.

While this little exercise in inanity was fun, (and was done to expose the failings of the current system), I was not the first to register an AI created work in Canada. That honour, as far as I can tell, belongs to Sahni, the named respondent in the CIPPIC case who, in December 2021, managed to register the artistic work Suryast, listing the AI-powered RAGHAV painting app as co-author. That was a neat way of getting around the requirement to provide an address, contact details etc. Sahni could provide his contact details yet still claim the AI algorithm was an author, even if a co-author. Clever. What Sahni’s motivation was I cannot say, but apparently he has been active in registering the work in as many jurisdictions as he can, maybe to boost the marketability of RAHGHAV. CIPPIC claims he is seeking registration to force various countries to address the AI authorship issue. Canada must have been one of the easiest registrations he received. Now he is being called to account. The application brought by CIPPIC seeks a declaration either that there is no copyright in Sahni’s image, Suryast, or, alternatively, if there is copyright in Suryast, that the Respondent (Sahni) is it sole author. It also seeks an order to expunge the copyright certificate in question or to rectify it by deleting the painting app as a co-author.

The fundamental problem of course is not Sahni or his AI app, (although like me, he may have been mischievous) but rather the way in which copyright registration is offered and maintained in Canada. It was not always this way. Once upon a time, to register a work in Canada you were required to not only pay a registration fee, (which is still the case today) but submit three copies of the work, one for the Copyright Branch (which was part of the Department of Agriculture), one for the Canadian Parliamentary Library and one for the British Museum. Because of these depository requirements, today we have a record of many early copyrighted works in Canada, such as the famous early 20th Century Inuit photographs of Canada’s first professional female photographer, Geraldine Moodie, about whom I wrote a few years ago (“Geraldine Moodie and her Pioneering Photographs: A Piece of Canada’s Copyright History”).

When the first international copyright convention, the Berne Convention of 1886, was established among a limited number of countries, there was a push by authors to abolish the registration requirement because it was burdensome to have to register in all Berne countries. Initially, registration in the home country was supposed to provide protection in all member states of the Convention, but this proved difficult to put into practice. Consequently, in 1908 at the Berlin revision of the Convention, the following provision (which is today part of Article 5(2) was adopted, “The enjoyment and the exercise of these rights shall not be subject to any formality”. Canada was a member of Berne because Britain had acceded, but was nonetheless a reluctant conscript (even though then PM Sir John A. Macdonald had acquiesced to Canada’s inclusion). In 1921 Canada finally passed its own Copyright Act (coming into force in 1924, a century ago this year), and subsequently joined Berne in its own right in 1928. I suspect that registration as a requirement, along with depository and examination conditions, was dropped at that time. That is probably when the current (but non-automated) voluntary registration process was established.

Certainly such a system was in place in the early 1950s when broadcaster Gil Seabrook of Vernon, BC registered an “untitled and unpublished artistic work” entitled “Ogopogo”. The registration of that undocumented work became the source of the urban myth that the City of Vernon owned the intellectual property rights to the mythical lake monster Ogopogo (Seabrook had donated his copyright to the City in an attempt to upstage Vernon’s rival town to the south, Kelowna, that claimed it was the “home of Ogopogo”). As a result, in 2022 Vernon Council went to great lengths to “return” the rights to Ogopogo to the local First Nation as an act of “reconciliation”. Of course, they never had the rights to Ogopogo in the first place. If you want more information, you can read all about it here. (“Copyrighting the Ogopogo: The © Story Behind the News Story”).

Despite the abolition of a registration requirement by Berne Convention countries, Canada is not the only country that maintains one. In the US, which only joined Berne in 1989, both registration and renewal were required for a work to enjoy copyright protection. When the US joined Berne, it maintained the registration requirement for US citizens who wished to take legal action to enforce their copyright. This is allowed under Berne. As such, the US has maintained a robust registration system where a legal deposit of the work is required, registrations are examined and can be challenged or refused.

We know that is not the case in Canada, but Canada is not the only country to have a voluntary registration system. In a recent study by WIPO (World Intellectual Property Organization), some 95 countries were identified as having either a voluntary registration system, a recordation system (for transfer of copyrights) or a legal deposit requirement. What is notable, however, is that of all these countries, only three (Canada, Japan and Madagascar) do not require a deposit of the work seeking registration. Canada does review applications but only to ensure they meet all the formality requirements (name and address of the owner of the copyright; a declaration that the applicant is the author, owner of the copyright or an assignee; the category of the work; its title; name of the author and, if dead, the date of the author’s death, if known. For a published work, the date and place of first publication must be provided and, perhaps most important, payment of the prescribed fee). Nothing else. In fact, if Mr. Mickey Mouse, address Disneyland Way, filed a copyright application for a work and paid the required fee of $63, I am sure a Canadian copyright certificate would be issued. It used to come in the mail, printed on nice quality paper but, alas, in the interests of efficiency, it is now only available in PDF format on CIPO’s website. Print it yourself.

That is the current situation, but why has CIPPIC gone to the Federal Court to dispute the wording of Sahni’s copyright certificate, No. 1188619? While the Registrar of Copyrights can accept requests for correction of a copyright certificate (either because of an error in filing or because the Office itself made a mistake), it cannot by itself amend or remove a registered work from the Register. Instead, the Registrar needs the Federal Court to effect such action. Section 57 of the Copyright Act states, with respect to Rectification of Register by the Court;

(4) The Federal Court may, on application of the Registrar of Copyrights or of any interested person, order the rectification of the Register of Copyrights by
(a) the making of any entry wrongly omitted to be made in the Register,
(b) the expunging of any entry wrongly made in or remaining on the Register, or
(c) the correction of any error or defect in the Register

However , while CIPPIC is seeking expungement of this particular copyright registration, it is the system it is really going after. This is clear from its memorial to the Court;

(23) “In automating its copyright registration process, CIPO is derogating from its obligations to administer copyright in a fair and balanced manner under the Copyright Act.”
(24) “The consequence of this system is that content that does not merit copyright can…easily obtain the benefits of registration.”
(25) “Copyright registrants obtain certain benefits under the Act – such as litigation presumptions – and users and defendants are correspondingly burdened. Once a “work” is registered, the Copyright Act…shifts certain presumptions such as subsistence and ownership….In this very case, as a result of CIPO’s oversight failures, the burden rests on CIPPIC to prove the image Suryast lacks originality and that an AI program cannot be an author.”

Moreover, CIPPIC notes that it brought this case to the attention of CIPO but it refused to correct the Copyright Register, instead encouraging CIPPIC to seek resolution in court. Assuming it is granted standing, CIPPIC may well prevail and have the Suryast registration amended or expunged. But will that really achieve its goals? If its goals are to get CIPO to stop “derogating from its obligations”, then simply cancelling or amending this one registration won’t do it. What is the solution?

One option would be to eliminate the voluntary registration requirement altogether, but is this the right course of action? The WIPO document referenced earlier points out some of the advantages of a voluntary registration system. It can ensure that information about authorship and copyright, including date of registration, become publicly available. This benefits not only authors and rightsholders, who can use the registration as a rebuttable presumption of copyright in court, as in Canada, but also provides information to the public to verify ownership claims and trace title. A voluntary system does not, however, provide a definitive list of what works are under copyright and which are not. Another factor is that an automated voluntary system, such as the one operated by CIPO, is not burdensome for registrants and presents no meaningful obstacle. The problem is that its barriers to registration are so low that it is easy to trick the system. Is a Canadian copyright certificate worth the paper it is printed on if there is no verification?

A second option is to improve the registration process to make it meaningful, but this will require resources. Current fees are low (but the US system which is much more robust has a similar fee structure). Nonetheless, to institute a USCO type system would require substantial additional resources that are unlikely to be forthcoming in the present fiscal environment. One would have to ask whether the extra cost could be justified. It’s a conundrum. Meanwhile, the government has circulated a paper on the issue of Copyright and AI and the Canadian cultural community has weighed in with its views. Prominent among these is the position that copyright protection should be accorded only to human-created works. (This is not currently specified in the Copyright Act).

CIPPIC’s court action puts the spotlight on the current copyright dilemma. The current system seems to be not fit-for-purpose, but an economically viable alternative is not immediately apparent. At the very least, Canada should amend the Copyright Act to prevent AI-created works from obtaining copyright registration.

© Hugh Stephens, 2024. All Rights Reserved.

If AI Tramples Copyright During its Training and Development, Should AI’s Output Benefit from Copyright Protection? Part Two: Jason Allen

Image: Théâtre D’Opéra Spatial, Jason B. Allen (not protected by copyright)

Last week I wrote about Stephen Thaler’s quixotic and determined approach to obtain copyright registration in the US for his AI generated artwork, “A Recent Entrance to Paradise”, created (he claims) exclusively by his AI “machine”, the so-called Creativity Machine. So far, despite repeated efforts, he has drilled a dry hole. An alternative approach to claiming copyright for an AI-generated work is by asserting that the AI used to produce it was simply a technological assist. The essence of the work was produced through human creativity, using AI only as a tool, and therefore the work should be eligible for copyright protection, or so the argument goes. Unlike the example of Kristina Kashtanova, discussed in last week’s blog, under this theory the entire work is protectable because it was human created, with AI playing only a facilitating or assistive role. This line of attack has most recently been pushed by the creator of the work “Théâtre D’Opéra Spatial”, Jason B. Allen.

Allen made headlines a couple of years back (September 2022) when he entered Théâtre into the Colorado State Fair’s annual art competition in the category of “digital art/digitally manipulated photography.” He labelled the piece as having been created by him, “via Midjourney”, the popular generative AI art algorithm that had recently been released. He won first prize, incurring the opprobrium of many artists who accused him of crashing a contest for human creators. Writing just a month later, in October of 2022, I posted my own AI produced artwork, based on the style of Monet (whose works are in the public domain) in this blog post, (AI and Computer-Generated Art: Its Impact on Artists and Copyright). My effort was substantially less artistic than Allen’s but was an original work of sorts, created with the help of AI. I used the program DALL-E2, which is similar to Midjourney. Both were freely available and a tool that any rank amateur “artist” (like me) could use.

Generative AI as a source of art burst into the public’s consciousness in 2022 because of the public release of these programs, but AI generated art has been around for a few years before that although used exclusively by art specialists. The New York Times reports on a sale at Christie’s Auction House four years earlier, in October 2018 (not exactly eons ago, but generations in internet/AI time). A portrait with blurred and distorted lines produced by an AI algorithm sold in New York for $432,500 (with fees). Christie’s, in inimitable auctioneering style, billed it as “the first portrait generated by an algorithm to come up for auction”, according to the Times. Now AI generated art is a dime a dozen. In fact, often it is hard to tell what is AI generated and what is not.

If the question of copyright protection for AI generated content is a big issue, an even bigger one is currently being played out currently in the courts; content owners, ranging from the New York Times to Getty Images to music labels to authors, are suing various AI development companies for unlicensed use of their content to train AI programs. The Copyright Alliance has a good summary of the various lawsuits in play here. The ultimate outcome is undecided, but if the courts find that the wholesale unlicensed and unauthorized ingestion of copyrighted content to train AI algorithms is not fair use (in the US) or does not fall within specified text and data mining exceptions in other jurisdictions, then the table will be set for serious negotiation between rights holders and AI developers. Some of the parameters of this negotiation are already pretty obvious;

  • a transparent inventory of what copyrighted works were accessed for training;
  • the ability of rights holders to be able to opt out or opt in;
  • various options for licensing content for training purposes.

If these conditions governing inputs were met, rights holders might be somewhat more sympathetic to arguments for copyrighting the output of generative AI programs. As it is, AI developers, and the users of AI programs, want to have their cake and eat it too. Jason B. Allen of “Théâtre D’Opéra Spatial” is Exhibit No. 1.

Allen is currently appealing in court the US Copyright Office’s ruling that his work cannot be registered under copyright. He claims that because of all the publicity about his work, and the USCO’s subsequent decision to deny copyright registration on the grounds that it was an AI generated rather than human creation, the work has lost value and impacted his ability to charge industry-standard licensing fees. Moreover, he claims that without copyright protection, he has no ability to stop others from using his work without authorization. (Like me, posting Théâtre on this blog post). Apparently, people are selling copies of the work on Etsy. One has some sympathy for his position, as it is one faced by many artists whose copyrighted works are also being ripped off on the internet.

Allen argues he had substantial creative input into the production of the work, using no fewer than 624 prompts to create the work to his mental specifications. Of course, we have no idea of what those specifications were. What Midjourney produced may have been an accurate reflection of what Allen had in his mind and intentionally created, or it may have taken him on a journey where he eventually settled on the output offered. One thing is likely, if not certain. Were he to enter those exact same prompts into Midjourney today, the outcome would not be identical to the current “Théâtre D’Opéra Spatial”. This raises the question of who, exactly, is guiding the creative process, the artist making the prompts, or the algorithm responding to the prompts.

Because of the way AI works, there is a large degree of randomness in the results, requiring more and more precise prompts to narrow the range of possibilities and guide the algorithm to the desired destination. But it is almost impossible to recreate precisely the route to an outcome. This suggests to me that, in the end, it is the algorithm that is in control, not the human issuing the prompts. (Although not everyone agrees with this thesis). To my mind, this is what distinguishes AI-generated art from photography, where the photographer, while using a mechanical assist, is nevertheless in full control at all times and has the ability to adjust for extraneous inputs such as light, shadow etc. rather than being controlled by them.

Allen’s appeal of the USCO’s rejection of his copyright claim takes place against a backdrop where Midjourney, the AI program he used, is itself being sued by a group of artists for appropriating their work without permission in order to train Midjourney’s art generation algorithms. Does anyone see any irony in this? However, the fact that Midjourney takes the works of others without permission for training and development purposes is not really Allen’s fault. He and other users of the program could perhaps be considered victims almost as much as the artists whose works have been appropriated. Nevertheless, if Allen is ever successful in getting Théâtre registered, this will be not just to his benefit, but also to the benefit of Midjourney and all the other AI developers who are in a similar position. On the other hand, if the output of their programs cannot be copyright protected, it diminishes the value of the AI product. So, perversely, the more Allen pursues registration for Théâtre, the more he undercuts those who make a living from producing art.

I see one possible scenario that could help resolve the issue of AI outputs being unprotectable. If the key elements of respect for copyrighted work (transparent inventory, opt in/out, licensing) were to be adopted by AI developers, then perhaps rights-holders would be more amenable to accepting at least some degree of copyright protection for AI created or assisted outputs. But right now, the AI industry wants it both ways; total freedom to appropriate copyrighted works for training and development purposes while claiming the same copyright protection they have just trampled for AI generated outputs. Jason Allen and other digital artists who use AI to produce art or other works are caught in the middle.

At the moment there is no clear solution. The most likely outcome–after all the legal dust has settled—is probably going to be some ability to copyright works produced with AI, dependent on the extent and degree of human intervention in a given work (which could possibly be carefully tailored prompts), balanced by a commitment by the AI industry to recognize the property rights of those holding copyright over the content it is using to create the AI program in the first place. This will necessarily involve an appropriate sharing of the added value being produced by AI in the form of licensing fees. This will take a few more years, a few more lawsuits, a few court decisions, and a few government interventions in the form of legislation–but I can see no other way forward. In the interim, neither Stephen Thaler nor Jason Allen are likely to get what they want.

© Hugh Stephens 2024. All Rights Reserved.