Osler's Barry Fong says AI is likely to increase both the number and complexity of copyright cases
Despite talk of AI automating legal tasks and streamlining processes, generative AI could increase demand for copyright lawyers due to the rising volume and complexity of cases, according to Barry Fong, partner at Osler, Hoskin & Harcourt LLP.
But while the uncertainty around AI often leads to a greater need for legal advice, Canada’s regulatory stance on copyright protections for AI-generated works remains unclear, he says.
One of AI’s biggest draws is its ability to quickly create large amounts of text and visuals. As AI-generated content floods the market, disputes over ownership and infringement are expected to rise, Fong says.
Large companies like OpenAI and Microsoft are already facing lawsuits, and Fong says Canada is beginning to see similar litigation emerge.
“It’s definitely the biggest topic in copyright right now,” Fong says.
He says AI’s impact on copyright law is comparable to the emergence of the internet decades ago.
“The internet had profound effects on copyright… and I think we're going to see that too for AI. I think there will also be amendments to the Copyright Act as a result of AI,” Fong says.
While copyright law has traditionally been a smaller area of intellectual property compared to trademarks or patents, AI could change that, he adds.
“Anytime you have uncertainty, whether business uncertainty or legislative uncertainty or both, you find that there's going to be a need for advice and need for lawyers,” he says.
He adds that not only companies, but also artists and rights holders, are seeking guidance more often.
“I do think that there's going to be a kind of a trickle-down effect… I have seen more clients reaching out for advice on this particular issue.”
Beyond the volume of cases, AI-related copyright disputes are, by their nature, very complex, Fong says. The central challenge is defining the level of human involvement required for copyright protection.
“The case law in Canada, in my view, is very clear that copyright is a right that is afforded to a human author,” Fong says, adding that courts have previously ruled an author must be a natural person, meaning AI-generated works without significant human input are not protected under current law.
However, he says, determining what qualifies as "significant human input" is not always straightforward.
“It’s a bit of a gray area… In many cases, a human is involved in, for example, inputting the prompt, asking the question, and then the AI spits out the results. Is that enough of a human input or contribution to the ultimate work created? I would say no.”
He says that Canada might benefit from following the US approach, which separates AI-generated content from human-created elements.
“They … look at the work and say, ‘What part of it was AI-generated? Which parts of it had some human contribution?’” he says.
Canada, he adds, is beginning to see legal challenges arise, including a case in federal court questioning a copyright registration that named an AI as one of the authors.
“Eventually, we’ll see a decision from the courts, hopefully confirming that the AI was not properly named as an author,” he says.
Other jurisdictions, particularly the US and UK, are ahead of Canada in tackling AI-related copyright issues, Fong says.
“There are a number of pending court cases there that are ahead of what we have in Canada… Canada’s copyright law has its origins in UK copyright law, so it will be interesting to see what decisions come down from their courts,” he adds.
However, drawing direct parallels can be tricky, as copyright law is highly case-specific, he says.
“I think the only instance where we will find that there is no copyright protection at all is in cases where it's entirely machine generated,” he says.
