Jan 30, 2022
For centuries, the goal of intellectual property laws has been to encourage human creativity by rewarding inventions that are valuable to society with monopolies, says Nathaniel Lipkus, a partner on Osler’s Intellectual Property team. This framework, however, requires some rethinking in the age of machine learning and modern artificial intelligence, he tells Canadian Lawyer. As technology becomes more powerful and gains “higher-order” functioning, it’s beginning to stretch the definitions of human invention and ownership.
“There are lots of issues associated with intellectual property surrounding AI,” Nathaniel says. In particular, he asks, “what happens when AI is the creator of intellectual property?”
So far, IP legislation in Canada and internationally hasn’t explicitly considered the question. In 2021, though, courts and patent offices around the world examined an application naming an AI inventor as the would-be patent holder. The applications have so far met success in Australia, where the term “inventor” is undefined, and South Africa, but courts in the United States and the United Kingdom concluded that an inventor must be human. Nathaniel says that as Canadian patent law is modelled closely on American and British law, “it stands to reason” that their perspectives on the issue would weigh heavily. As of now, the issue not yet been considered by Canadian authorities.
Osler’s Barry Fong, partner, Intellectual Property, also wonders whether AI could be considered an author under Canadian copyright law. Though jurisprudence suggests an author must be a natural person, AI systems are now able to create works largely independent of human intervention.
“Whether AI-generated works are protected by copyright, and if so, who owns legal rights to the work is an important issue, with implications for public policy and the Canadian economy,” Barry, Nathaniel and their colleagues wrote in their Osler Legal Year in Review article, “Time to talk about ownership of AI-generated intellectual property assets.”
Last summer, the Government of Canada suggested three possible approaches to the AI issue in a consultation paper based on legislation from several jurisdictions. These include making AI-generated works ineligible for copyright protection, attributing authorship to the humans who arranged to create the work, and permitting copyright protection of AI works but considering them “authorless.”
You can read the full article on Canadian Lawyer’s website and read or listen to Osler’s full Legal Year in Review article on this topic by Nathaniel Lipkus, Barry Fong, J. Bradley White, Ryan Howes and Leah McGurn.