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    A Tale of Two Copyrights

    • 29.09.2023
    • By Hugh Stephens Blog
    Hugh Stephens Blog
    Credit: Shutterstock


    Registration of AI-Generated Works in the United States and Canada: A Comparison

    Human Creation

    The question of whether works that are generated in whole or in part by Artificial Intelligence (AI) should enjoy copyright protection is a hot topic at the moment. It is wrapped up in the question of who can claim the protection of copyright. As we learned from the Monkey Selfie case, in the US the holder of a copyright must be a human, which has obvious implications for works created by AI where there is no or minimal human engagement. That is generally true everywhere although UK copyright law has a limited exception. [i] Although humans could use AI to assist them in creating a work, yet still retain creative control, when AI is introduced into the creative process the question arises as to whether there is sufficient human creativity in the work to qualify for copyright protection.

    Optional Registration

    The question is further complicated by the nature of how copyright is established. Under the Berne Convention, to which 181 countries have acceded, copyright is established automatically when three fundamental conditions are met; the work is original (not copied from another work), when it is the expression of an idea, i.e expressing creativity (rather than the idea itself) and it is fixed in some material form. It is not necessary that it be registered, as used to be the case in the early days of copyright and until 1989 in the US, when the United States joined the Berne Convention. However, in both the US and Canada, registration is possible as a voluntary option. (In the US it is required if legal action is to be brought in an infringement case). The advantage of registration is additional proof that a creator owns the copyright in a particular work, although registration and receipt of a certificate is no guarantee that the copyright will not be challenged or that it is not infringing on the rights of another copyright holder. Those issues must be decided in a court of law. Nonetheless, registration could help clarify whether AI generated works qualify for copyright protection. That is certainly the case in the United States; in Canada not so much.

    Situation in the US

    When we put the two requirements of human creativity and registration together, we face the possibility that registration could be denied because the work was created not by a person but instead by an autonomous AI program. That issue has played out recently in two cases in the US where the authors of works using generative AI were seeking copyright registration from the US Copyright Office (USCO). In the first, the case of Stephen Thaler and his self-described “Creativity Machine”, Thaler sought to register a work of art he claimed was created entirely by his machine. I wrote about this case last year in a blog post titled “The Humanity of Copyright”. Thaler first tried to register the work, a two dimensional image called “A Recent Entrance to Paradise”, back in 2018. He was refused and appealed through various channels. His final appeal was dismissed in August of this year by the US Court for the District of Columbia.

    The most recent unsuccessful attempt to register an AI generated work with the USCO was a request by artist Jason M. Allen for a copyright covering an award-winning image he created with the generative AI program Midjourney. As reported by the Verge, Allen shook up the art world last year by submitting his AI generated work “Theatre d’Opera Spatial” to the Colorado State Fair fine arts competition in the “Digital Arts / Digitally-Manipulated Photography” category, winning first prize. In his appeal of the USCO’s initial rejection of his copyright registration application, Allen told the Copyright Review Panel that he input over 600 text prompts to arrive at the initial version of the image using the Midjourney program, with the images later altered with Adobe Photoshop. But the USCO wasn’t buying it. The Board’s rejection letter states, “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.”

    As a result, the Review Board, concluded, ;

    “…the Work contains more than a de minimis amount of AI generated content, which must be disclaimed in an application for registration. Because Mr. Allen has refused to disclaim the material produced by AI, the Work cannot be registered as submitted.”

    That decision could not be clearer nor better substantiated. See the full 9 page ruling (here). Works of non-human authorship, including those produced by generative AI programs with minimal human intervention, are not subject to copyright protection and cannot be registered with the US Copyright Office.

    The Canadian Experience

    Now let’s compare the situation in Canada, where copyright registration is handled by the Canadian Intellectual Property Office (CIPO), an agency of the Department of Innovation, Science and Economic Development. CIPO doesn’t actually care what is in a copyright application, nor does it examine a registration application or keep any record of what the application contained other than the title and brief description of the work. As a result, an AI generated work can be, and has been, accorded Canadian copyright registration as I demonstrated with my application for registration of a piece of AI generated doggerel produced by ChatGPT accompanied by an image produced by the AI program DALL-E-2. (“Canadian Copyright Registration for my 100 Percent AI-Generated Work”).

    You can read about it through the preceding link, but suffice to say that I submitted a request for copyright registration for a work titled, “Sunset Serenity”, being “an image and poem about sunset at an Ontario lake created entirely by AI programs DALL-E2 (Image) and ChatGPT (Poem) on the basis of prompts demonstrating minimal skill and judgement on the part of the human claiming copyright”. I inserted the phrase about “skill and judgement” as these are supposed to be the criteria by which originality is determined in Canada, according to the Supreme Court of Canada ruling in 2004 in CCH Canadian Ltd. v. Law Society of Upper Canada. I had exercised almost no skill and judgement, except to make two prompts and two choices (DALL E2 provided me with 4 images to chose from in response to my request for it to generate an image of me on the cottage dock at sunset, and ChatGPT generated several poems when I asked for a poem in  “in iambic pentameter involving watching the sun set over a lake in northern Ontario while I sit in a Muskoka chair at my dock sipping on a cool drink, listening to the haunting cry of the loon”. I chose the least worst one.  You can enjoy this now-copyright registered work here. And I have a nicely designed Copyright Certificate of Registration no. 1201819, dated April 11, 2023, produced on parchment paper, that I can use to adorn my office wall. (Or I could sell it on eBay).

    It seems we have a situation that I could call, “A Tale of Two Copyrights” where the US Copyright Office goes to inordinate length to determine if AI generated content is included in a work submitted for registration, and denies registration for those parts of the work that are based on AI, yet the Canadian Intellectual Property Office is perfectly happy to issue a registration certificate for a work that by its own admission meets neither the requirement of originality nor human creation. The fact that no copy of the work is either submitted or retained also undermines the utility of the process as I discussed in a blog over a copyright dispute regarding who owned the name to the Okanagan Lake cryptid, the Ogogopo. Even though the Copyright Office had issued a certificate in 1953 for “an unpublished artistic and literary work entitled Ogopogo”, nobody living had a clue as to what it purported to protect. It does make one wonder what the point is of copyright registration in Canada if no effort is made to examine the bona fides of the work or to keep a copy on file.

    What is the Utility of a Canadian Copyright Certificate?

    It has been put to me that I shouldn’t be stirring up this pot lest the CIPO suddenly bestir itself and start taking copyright seriously by actually examining requests. That could push up the $50 fee and make it a bit more complicated to get a certificate. I would note, however, that the fee for filing a copyright request with the US Copyright Office is only US$45 for online filing for a “Single Application (single author, same claimant, one work, not for hire)”.  If you want a paper filing, it will cost more. With CIPO, online filing is the only option. There is no question that filing a Canadian copyright application is simpler, but is it worth the expensive paper that it is printed on?

    But what if we look at it from another angle. Under the Berne Convention to which both Canada and the US are parties, copyright protection is reciprocal and based on national treatment. Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of “national treatment”). Should Stephen Thaler and Jason Allen have first published and registered their works in Canada, and then sought reciprocal treatment in the US? I guarantee they would have received a bona fide copyright registration certificate from CIPO. Unfortunately, under the principle of national treatment, the US is obliged only to provide them with the same level of copyright protection as they would have received had they registered, or attempted to register, in the United States.

    Whether the protection in Canada actually covers AI generated works is still an open question, despite my copyright certificate No. 1201819. In the US clarity reigns; in Canada, confusion and ambiguity.

    This article was first published on Hugh Stephens Blog