David Fuhr (2:32)

I mean, I've got the best job in intellectual property law in Canada.

Waylon Wong (2:34)

David Fuhr works on big challenges like this in Canada. He's general counsel at the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa. SIPIC for short.

Emma Jacobs (2:45)

He's one of those people trying to figure out what the rules around AI and copyright should be For a long.

Waylon Wong (2:51)

Time, intellectual property lawyers like David have thought of copyright as a system that creates incentives and rewards for humans to make things.

David Fuhr (3:00)

There's lots of stuff out there that's beautiful. You know, the Grand Canyon is extraordinarily gorgeous, but there's no copyright in it. There's no author of that natural formation. It's gotta be a work produced by a human, we would say, for there to be copyright in it.

Waylon Wong (3:15)

But he says works involving AI can follow along more of a spectrum of human involvement.

David Fuhr (3:20)

Probably the easiest of the cases that we're going to get. I mean, the absolute easiest is just a text prompt that says, show me a cat, you know, and the AI pops up an image of a cat.

Emma Jacobs (3:30)

In this situation, David and most other IP lawyers think you just won't get copyright.

Waylon Wong (3:35)

Okay, so I won't be launching my illustrious art career that way. But, you know, it's like the human contribution, the human effort involved is just so minimal. Right?

Emma Jacobs (3:44)

Yeah. And an AI application, it doesn't really need incentives to make stuff.

Waylon Wong (3:49)

But at the other end of the spectrum, you might see more of a human AI collaboration. The question then becomes, how much human involvement would you need to get copyright?

Emma Jacobs (3:59)

As David was mulling all this over, he was looking for a test case that might help clarify these difficult issues. And in 2022, he found one. In Canada's copyright registry.

David Fuhr (4:11)

The registration listed a human author, but also an artificial intelligence application as the authors.

Emma Jacobs (4:18)

The guy who filed this registration was also an IP lawyer looking to test the rules on copyright. His name's Ankit Sani, and he lives in New Delhi in India. Now, Waylon, I don't know if you had a pandemic hobby.

Waylon Wong (4:32)

I just played Animal Crossing on Nintendo Switch 24 hours a day.

Emma Jacobs (4:36)

That sounds terrific. Well, Sani's pandemic hobby was to run a series of international experiments around artificial intelligence and copyright law.

Waylon Wong (4:46)

Okay, so we relax in very different ways.

Emma Jacobs (4:48)

Yeah, totally. But Sanni started out by commissioning his own AI app, which can take one image and recreate it in the style of a second image.

Waylon Wong (4:58)

Next, Sanni chose a photo he'd taken with his phone of a sunset. And using the app, he regenerated it in the style of a very old famous painting in the public domain. Vincent Van Gogh's the Starry Night.

Emma Jacobs (5:11)

That's the one with all the blue swirls in the sky.

Ankit Sani (5:14)

I obviously tinkered around with the variables, which was how much style was to be transferred.

Waylon Wong (5:23)

This is Sanni speaking on a podcast called Warfare of Art and Law.

Ankit Sani (5:27)

And then the output that got generated is what was what we ended up naming Suryas, which is the Hindi word for sunset.

Waylon Wong (5:35)

Sani then tried to register the new image with three copyright offices around the world. India, the US and Canada. In his applications, he listed himself and the AI app as co authors.

Emma Jacobs (5:48)

How each of these countries responded shows just how complicated this matter is. In India, his application was granted, then withdrawn, but eventually upheld. In the US it was rejected, and that rejection was upheld on appeal. Which brings us back to Canada.

Waylon Wong (6:06)

Unlike the US and India, registration is basically automated. In Canada, there is no human review. You fill out a form, pay a fee and click, you're in the registry. And it's important to note here, registration isn't actually what gives someone copyright. It functions more like proof if a conflict arises.

Emma Jacobs (6:24)

Now, in the case of the Sunset Starry Night mashup, no one had challenged ownership of the work in Canada, but David had a problem with the registration itself. He said it was sending a message that AI work could be copyrighted. He and his colleagues first tried to reach out to Sani to bring our.

David Fuhr (6:44)

Concerns to their attention, to ask for a correction of the registration, and we just didn't get an answer.

Waylon Wong (6:50)

We, by the way, also tried to get in touch with Ankit Sani through his lawyer and a registered letter and did not hear back.

Emma Jacobs (6:56)

But when David didn't hear back, he asked Canada's federal court to expunge the registration.

Waylon Wong (7:02)

And that seemed to get Sani's attention. Sani hired a Toronto law firm to fight back.

Emma Jacobs (7:07)

One person who was pleased to see this go to court is Karis Craig, a law professor at York University in Toronto. When she heard Canada had let this image into the registry, I think I.

Karis Craig (7:18)

Mostly ruled my eyes.

Waylon Wong (7:21)

But she also knew Ankitsani wasn't the only person running this kind of experiment. Past registry decisions have actually provided some of the first indicators of what AI work qualifies for copyright.

Karis Craig (7:33)

There are lots of people who agree that these decisions could ultimately prove kind of critical in terms of how we see generative AI evolve and change our cultural landscape.

Waylon Wong (7:48)

Now, as we said, the US office rejected Sanny's application for having a non human author.

Emma Jacobs (7:55)

But overall, experiments in the United States have had mixed results. One applicant who gave an image Generator More than 600 prompts also got rejected. But someone else who used an AI program called Midjourney to illustrate their graphic novel did get some protection.

Karis Craig (8:12)

Most recently, I think there was an application to register a work that was called A Single Piece of American Cheese. I don't know if you heard about that one.

Waylon Wong (8:25)

I had not, but I'm definitely intrigued.

Emma Jacobs (8:27)

This image looks like a mosaic of a woman's face with sort of melting cheese looking hair. The US Copyright Office would only grant the artist copyright protection for his arrangement of the AI generated pieces of the mosaic.

Waylon Wong (8:42)

And if this all sounds pretty messy, that's because it is.

Emma Jacobs (8:46)

But in general, the US has tried to carve out the AI made parts of works which can't be copyrighted from the human made parts which can.

Karis Craig (8:55)

And the difficulty is going to be whether it's possible or not is to kind of parse what did the AI generate versus what did the human author or user create.

Waylon Wong (9:08)

Keras predicts this is only going to get harder as companies integrate AI directly into software we all use to write or draw or code.

Emma Jacobs (9:17)

This summer, in the Canadian case, you'll have experts and lawyers all getting paid to dissect how Ankit Sani's Starry Night mashup got made and how much he.

Waylon Wong (9:26)

Contributed, but trying to figure out what's eligible for copyright day to day. As the AI tools available also keep evolving, that's going to be much harder and really a moving target. This episode was produced by Julia Ricci with engineering by Kwesi Lee. It was fact checked by Sierra Juarez. Cake and Cannon is our show's editor and the indicator is a production of npr.

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