"Thank you, Chair, and members of this committee. My name is Carys Craig. I am a professor at Osgoode Hall Law School, 91ŃÇÉ«, where my research focuses on copyright, technology, and the public interest. I submitted briefs to the Government’s previous consultations on AI and copyright, and I’ve published widely on the topic. I appreciate the opportunity to share my views today.

I want to make three points about copyright protection relevant to this Committee’s work. First, it is vital to distinguish copyright law from AI regulation; copyright is the wrong legal tool for regulating AI technologies. Second, relatedly, copyright law must not obstruct AI research, development, and training in Canada. And third, Canada’s copyright law must continue to refuse copyright protection to AI-generated works.

Copyright Is the Wrong Tool for AI Regulation

There is understandable concern about generative AI —its effects on creative workers, cultural industries, information integrity, the concentration of foreign corporate power. I share those concerns. But I urge the committee to be cautious about including expanded copyright protections as part of an AI regulatory package to address them. Copyright exists to encourage the creation and dissemination of works, to reward authors and foster a vibrant public domain. It is technology neutral. It is not designed to govern technology risks or restrain technological developments; it should not be pressed into that service now.

The real risks of AI — from bias and misinformation to deepfakes and privacy violations, labour displacement, corporate consolidation — demand dedicated, fit-for-purpose regulatory responses. Expanding copyright control risks distorting copyright principles while failing to address—or indeed worsening—the harms themselves. This is what I’ve called running into the “AI-Copyright Trap”—mistakenly turning to copyright as an easy catch-all (or for some, a windfall) in response to the threats posed by generative AI.

Copyright Law Must Not Obstruct AI Training

My second point concerns AI training. Some have called for mandatory licensing for copyrighted works used in training data, backstopped by owners’ rights to opt out or in. I understand the impulse, but the consequences of this approach would be deeply harmful.

Under current law, it is not established and far from clear that training AI on copyright works even implicates the rights of owners. When an AI system is trained, it does not memorize or reproduce the works it processes. It translates expressive content into statistical patterns — meaning becomes math. This is a technical, intermediate, non-public use to extract information that copyright does not protect. But even if copyright extended to this data extraction process, most text and data mining is likely lawful without permission or license under Canada's fair dealing provisions, as interpreted by the Supreme Court. If the Committee is interested in supporting AI research and innovation in Canada, the real problem is the current legal uncertainty, not illegality.

Requiring licensing would create a pay-to-play system regulated by private actors. Only the wealthiest corporations could afford access to the vast data troves required. Academic researchers, non-profits, startups and SMEs will be shut out. This would concentrate AI development further in the hands of Big Tech — the very outcome many are trying to prevent. It would also incentivize secrecy, reduce the diversity of AI systems and competition, exacerbate bias, and be practically impossible to administer effectively (as implementation efforts in the EU reveal). It would surely off-shore AI development while Canadian creators would gain little if anything. [Canada’s focus should be on public data governance, not shoring up its private commodification.]

So, if Canada is to amend the Copyright Act, it should be to confirm that text and data mining for informational analysis does not constitute infringement. This was the original INDU recommendation in the 2019 Copyright Act Review, and it remains the best way to support a healthy AI ecosystem in Canada. It would align with emerging US fair use jurisprudence—but give us the significant advantage of legal clarity.

Refuse Copyright Protection for AI-Generated Outputs

My third and final point concerns AI outputs. The most effective thing copyright can do to protect human creators is to maintain the position that copyright requires a human author — [a work must originate from a human being to attract protection] while AI-generated content belongs in the public domain. That is the correct result, and it protects the role of human creators in the creative industries. Granting copyright or new rights in AI-outputs would be an unnecessary, misplaced incentive and further chill human creativity.

Conclusion

In closing, I want to emphasize that copyright law, at its best, serves human creativity and the public interest. It exists because we value what human beings create, share, and learn from each other. We cannot allow it to become a tool for controlling technology, or a bargaining chip for corporate licensing deals and rent-seeking, or a vehicle for granting monopoly rights over information or machine-generated content. I urge the committee to keep copyright’s principled limits and practical effects in view — there are many more apt solutions to the risks posed by AI systems. Thank you."

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The development of copyright law in Canada has never been quick to move but rather advances like a river carving its course, slow, persistent, and shaped by centuries of cultural and legal history. From the imperial statutes imported in the nineteenth century to the quiet but profound pronouncements of today’s Supreme Court, its progress has been less a leap than a measured accumulation of meaning across generations. Each judgment is a stone laid carefully in the stream, sometimes uneven, sometimes contested, yet together forming a path that reflects Canada’s patient effort to balance the rights of creators with the needs of users, tradition with innovation, and private reward with the public’s access to knowledge.

In March 2004, the Supreme Court of Canada released CCH Canadian Ltd. v. Law Society of Upper Canada, (“CCH”), a case that began as a dispute over library photocopying but grew into one of the most influential copyright rulings in Canadian history. In a single unanimous judgment, the Court redefined the purpose of copyright, reshaped its doctrinal foundations, and projected Canada’s legal voice onto the international stage. Twenty-one years later, on a bright, sunny weekend in , scholars, practitioners, professionals, and observers gathered at the Centre to reflect on the enduring legacy of CCH at home and abroad, asking: what did this ruling truly accomplish, and what did it set in motion?

The CCH ruling addressed four critical questions. First, the Court adopted the “” test for originality, rejecting the idea that mere industrious effort, what had been called the “sweat of the brow”, was enough to qualify for copyright protection. Originality required more: an intellectual contribution that reflected thought and decision.

Second, the Court narrowed intermediary liability. Simply providing the means for infringement, such as photocopiers in a library, would not make an institution liable unless it the infringing use.

Third, it clarified “,” a concept increasingly relevant in the digital age, limiting how far publishers could stretch their rights against libraries sharing works with their patrons.

And fourth, and most famously, the Court recognized fair dealing and other exceptions as “.” With this declaration, the Court placed access and fairness at the heart of copyright law, ensuring that copyright was not simply a monopoly for rightsholders but a balanced framework serving creators, users, and the public interest.

As with any turning point in law, CCH’s legacy is complex. Supporters celebrate it as the moment Canada broke from overly restrictive copyright models and embraced a fairer balance between access and control. Critics, however, argue that the decision distorted the legislation and accelerated the decline of Canadian educational publishing. While Quebec largely charted its own cultural path, much of English Canada embraced the Court’s expansive vision of user rights, leaving local publishers crying foul as they struggled to adapt and compete in the digital era.

Even within institutions, the embrace of user rights has been uneven. While fair dealing has flourished through subsequent cases in the Supreme Court’s “” and amendments to of the Copyright Act, other exceptions, such as disability rights under , remain under-utilized. Libraries and universities, wary of litigation, often adopt risk-averse policies that fail to reflect the spirit of CCH. It is a reminder that judicial doctrine alone cannot change practice; institutions (and the people who work for them) must also to carry the torch.

Though born of a Canadian library, the CCH decision quickly echoed abroad. In India, the Supreme Court adopted Canada’s “skill and judgment” test in (2008), and today Indian courts continue to revisit CCH as they grapple with generative AI disputes and the role of user rights in text and data mining. In South Africa, reform efforts to decolonize and modernize copyright law have built upon CCH, with the proposed seeking to expand exceptions and incorporate fair use principles that mirror Canada’s emphasis on balance. Across Africa’s music economy, the narrowing of intermediary liability established in CCH resonates strongly: while limiting liability can promote innovation, in regions with weak enforcement institutions, it risks enabling exploitation—highlighting the danger of transplanting doctrines from well-resourced systems into fragile infrastructures. Meanwhile, in Europe and Latin America, Canada’s approach has sparked reflection of another kind. European scholars contrast Canada’s robust recognition of user rights with the EU’s narrower framework, while in Brazil, cultural policy debates under Gilberto Gil in the early 2000s similarly sought to reframe copyright as more than just a market commodity. In each of these contexts, CCH has functioned as both compass and caution—proof that a single Canadian decision can shape global debates, but also a reminder that law must always be adapted to the realities of place and culture.

CCH Canadian Ltd. v. Law Society of Upper Canada stands as a milestone not just in Canadian copyright, but in the global story of how law adapts to new technologies and shifting cultural priorities. Its vision of user rights has shaped debates from Ottawa to Delhi, Cape Town to SĂŁo Paulo.

Looking back, CCH reminds us of the slow dance of law in Canada. It did not arrive with fanfare but unfolded through a quiet dispute about photocopiers and fax machines, carried by careful words and judicial reflection. Yet over time, its influence spread like ripples on water—shaping institutions, and practices, inspiring courts and policymakers abroad, and offering copyright law a compass for navigating entirely new technological challenges.

Law evolves slowly, but its slowness is part of its strength. In a world of disruption, it anchors us to principles that endure: fairness, balance, and the recognition that the rights of users and the public are not afterthoughts but part of the very purpose of copyright. As Canada reflects on the case twenty-one years later, it is worth remembering the lesson woven through its legacy: law does not race to keep up with every innovation, but moves like water in a stream, guided by the memory of where we have been and the hope of where we might yet go.

Links to the recorded panel presentations, speakers' bios and paper abstracts are now available .

A lawyer and graduate of the Osgoode Professional , Shadi Nasseri's doctoral research addresses the profound legal and ethical concerns arising from neurotechnologies, including issues related to mental integrity, human dignity, personal identification, freedom of thought, accessibility, autonomy, and privacy.

The post Currents, Waves, and Ripple Effects – CCH’s Legacy at Home and Abroad appeared first on IPOsgoode.

Egin Kongoli is a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Innovation Program.

Canada is getting serious about consumer privacy, or so our lawmakers claim.

Parliament has recognized the public’s need for a data framework that ensures proper transparency and accountability.[i] Ottawa’s response is and the proposed Consumer Privacy Protection ActĚý(CPPA), meant to govern the future collection, use, and disclosure of personal information for commercial purposes. However, while the law modernizes elements of the privacy framework, it leaves out exceptions for de-identified data practices that undermine the very trust the legislation is meant to foster. Standing tenuously on technological assumptions, the exception creates a wild-west scenario ripe for harmful data practices.Ěý

Under the CPPA, organizations are not required to obtain user consent to de-identify, a process that modifies data so that “an individual cannot be directly identified.”[ii] The legislation creates an offence for re-identification and, as such, seems aware of the risk.[iii] Nonetheless, further exceptions are made for data anonymization, by which an organization “irreversibly and permanently modif[ies] personal information… to ensure that no individual can be identified from the information, whether directly or indirectly, by any means.”[iv] The CPPA excludes the anonymized data from its purview because, by their definition, there is no reasonable prospect of re-identification.

This logic rests on several problematic assumptions. First, the line which separates de-identified and anonymized data is vague and rarely obvious until re-identification occurs. De-identified data is by its nature not meant to be re-identified, and thus anonymous by the government’s definition. Moreover, the law assumes organizations have the technological capabilities to ensure irreversible and permanent anonymization. While identifiers may be removed, many other seemingly innocuous data points can be used to . Research from Oxford recently found that . One might imagine many disturbing consequences, from identity fraud to the cancer patient whose allegedly-anonymous data is used to change their insurance coverage and rates.

How can the disclosure and use of data be monitored if the law excludes anonymized data from regulation? Privacy enforcement may require individuals to come forward with complaints about the misuse of their data.[v] The system thus asks users to not only be aware of their data anonymization (which they never consented to) and its subsequent disclosure (kept secret from them) but to catch the bad actors re-identifying information the regulators turned a blind eye to. Our framework’s release-and-forget de-identification model thus opens the door to potential misuse of personal information that will remain altogether hidden from the regulator’s or public’s view. Where is the transparency or accountability?

While the anonymized exception answers the growing demands of businesses seeking to use personal data, the current state of de-identification practices does not satisfy the standards of the CPPA. The European GDPR includes data that does not contain direct identifiers but is capable of re-identification, “,” as within the scope of the law. That our lawmakers decided against regulating allegedly-anonymous data begs whether their priorities indeed lay with the needs of the public or of commerce.

[i] Bill C-27,ĚýAn Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts,Ěý1st Sess, 44th Parl, 2022, preamble, para 8.

[ii] Ibid at s 2(1).

[iii] Ibid at s 128.

[iv] Ibid at s 2(1).

[v] Ibid at s 107.

The post Anonymous for Now: Demystifying Data De-Identification appeared first on IPOsgoode.

Prof. David Vaver is a member of IP Osgoode's Advisory Board, an Intellectual Property Law Professor at Osgoode Hall Law School and an Emeritus Professor of IP & IT Law at the University of Oxford.

A version of this paper is scheduled to be published in the Intellectual Property Journal. Thanks to Ronald M. Lieberman, Christopher G. Moore, and Maxine Vaver for helpful comments on an earlier draft. They of course share no responsibility for what appears here.

Is there such a thing as “inducing” copyright infringement? There isn’t in the United Kingdom, but the Federal Court in Bell Canada v L3D Distributing Inc (INL3D) 2021 FC 832 (“L3D Distributing”) thought there was in Canada and the defendants had done it. Indeed, the court thought that inducing infringement, which to date had been considered wrong only in respect of patents, applied to all forms of intellectual property (“IP”).

In Compo Co Ltd v Blue Crest Music Inc [1980] 1 SCR 357, 372, the Supreme Court said that “[c]ourts in this technical field of copyright have found it prudent to make their judicial answers congruent with the legal issues raised in the pro­ceeding at hand leaving, so far as possible, analo­gies, examples and hypothetical questions to another day.” This caution applies particularly where the case is undefended, as L3D Distributing was, and the plaintiffs are asking the Court to make new law. Where a case would succeed on more familiar grounds, it is prudent simply to record the additional plea or treat it as raising a hypothetical question; for what may look rock solid when presented by one side often crumbles once the other side is put. As Justice Megarry said when repudiating a view he had expressed in his standard land law treatise, it is dangerous to reach a settled conclusion “without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case” (Cordell v Second Cranfield Properties Ltd [1969] Ch 9, 16, emphasis added). Audi alteram partem is, after all, prudence epitomised.

It thus seems best to treat the Federal Court’s views on inducement as an indication that the point was arguable, rather than necessarily sound, especially since such a holding was not strictly necessary. The defendants had been retailing pre-loaded set-top boxes that gave viewers unauthorized access to television broadcast and cable programming in which the plaintiffs owned or controlled the copyright. The Court unexceptionably found the defendants liable on three counts other than inducement: (a) making copyright-protected work available for telecommunication to the public; (b) authorizing such communication by telecommunication (both contrary to the Copyright Act RSC 1985, c C-42); and (c) selling equipment that decrypted cable transmissions (contrary to the Radiocommunication Act RSC 1985, c R-2) — none of which the plaintiffs authorized. Neither the inducement count nor the radio-communication count added anything material to counts (a) and (b): the Court thought the latter two counts themselves enough to sustain the grant of an injunction and a $30 million award of statutory and punitive damages and costs against the defendants.

So is the Court’s view, that inducing copyright or IP infringement is indeed a Thing, sound? I suggest not.

One must of course first start with the Copyright Act itself and deal with what the Supreme Court also said in Compo (above):

“Mr Hughes … put it very well when he said that copyright law is neither tort law nor property law in classifi­cation, but is statutory law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute. … It does not assist the interpretive analysis to import tort concepts. The legislation speaks for itself…” ([1980] 1 SCR at 372-3).

So, if we take the Supreme Court literally, since the Act defines copyright infringement as doing “anything that by this Act only the copyright owner has the right to do” (s. 27(1)), and “inducement” is — unlike making available and authorization — not something only the copyright owner has the right to do, the inquiry should stop right there: inducement cannot be a Thing because the Act doesn’t say it is.

The trouble is that the Court’s statement in Compo, despite being parroted in countless copyright cases, cannot be taken literally; for in its very next paragraph, the Court approves decisions of the UK and US courts that hold authorization generally, and authorizing the making of sound recordings specifically, to be “separate torts” (the Court’s emphasis), if done without the copyright owner’s consent. So, according to the Court, the interpretation of the Copyright Act is not assisted by importing tort concepts into something the Court chooses to call a “tort.” The authority for this method of reasoning is presumably Justice Humpty Dumpty’s well-known dicta in Lewis Carroll’s Through the Looking Glass.

In fact, it is well settled that tort concepts of accessory liability — the civil law equivalent of aiding and abetting in criminal law — do apply to the Copyright Act, and indeed all IP Acts, even where the legislation is silent on the point. How else are corporations found vicariously liable for IP infringements committed by their employees? How else are directors held liable for any egregious conduct in connection with their company’s IP infringements? All legislation that creates a statutory tort or wrong is presumed to make accessories liable the way they are in tort, unless the legislation expressly or impliedly excludes such liability (Majrowski v Guy's & St Thomas' NHS Trust [2006] UKHL 34 at [16], [72], [74]). IP infringements are one such example of a statutory tort, as Compo and many other courts in Canada and elsewhere have long recognized. Accessories are considered themselves to infringe IP jointly and severally by participating in another’s infringement. They are thus subject to the full panoply of infringement remedies, subject to whatever is recovered from the primary infringer. The most common accessory is the joint tortfeasor or joint infringer, who is indeed specifically contemplated by the Copyright Act (see, e.g., sections 17(2) (right of remuneration), 38.1(1) (statutory damages), 44.07(4) (charges for border stoppage)).

Some academic writing argues for a wider tort principle of accessory liability: anyone who contributes knowingly and substantially to another’s infringement by helping, encouraging, or inducing them to infringe should be liable to the IP holder for the full panoply of monetary, injunctive, and other equitable remedies: see, e.g., Paul Davies, Accessory Liability (Oxford: Hart 2015), passim. US courts have gone this far (MGM Studios Inc v Grokster Ltd 545 US 913 (2005)) but the UK Supreme Court has not. Concerned to keep accessory liability within reasonable bounds, the Court has insisted on the additional requirement that the wrongdoing must be found to be joint before monetary remedies can be imposed on defendants. The combination of “active co-operation and commonality of intention” then helps avoid “constrict[ing others’] freedom to engage in activities which are otherwise lawful” (Sea Shepherd UK v Fish & Fish Ltd [2015] UKSC 10 at [44], also [56] & [58]; similarly Google LLC v Defteros [2022] HCA 27 at [204], [212] (Aust HC) (defamation)). In other words, inducing copyright or other IP infringement is a Thing only if, additionally, a common design or intent between an inducer and inducee to do acts that amount to infringement is found to exist, so that they become joint infringers (CBS Songs Ltd v Amstrad PlcĚý[1988] RPC 567, 606-9 (HL)).

Joint infringement is a flexible enough concept to encompass even the financing of infringing activities, as occurred in the Sea Shepherd case (above). But flexibility can create uncertainty and division and much will depend on the view a judge takes of the facts of a case (Rutman v Rabinowitz 2018 ONCA 80 at [31]-[5]). Thus in Sea Shepherd, while agreeing on the legal principles of joint liability, the UK Supreme Court divided on their application. All accepted the presence of a common design between Sea Shepherd UK and its overseas parent organisation, Sea Shepherd Conservation Society (“SSCS”), under which the UK company supported SSCS in its attempts to stop bluefin tuna fishing in the Mediterranean. A majority of the Court, however, held that the UK company’s local fundraising efforts for SSCS’s activities were too insignificant to have induced the trespass that SSCS committed in attacking the boats that were hauling tuna to the plaintiff’s fish farm off Malta.

Joint liability is largely about finding someone worth suing for another entity’s sometimes more substantial wrongdoing — someone with the wherewithal to pay compensation or hand over any wrongfully made gains. That was what the fish farm or its insurers in Sea Shepherd were ultimately after. Sea Shepherd UK’s assets might not be enough to cover the plaintiff’s claimed losses and anyway it had not carried out the attack. The UK company could, however, be used as a way to get the English courts to take jurisdiction over the better-funded foreign-based SSCS and then hold both companies jointly and severally liable. The tactic would have succeeded had the UK company influenced SSCS’s activities more. The UK company would then have been a participant in a tort partly committed in England, even though the major wrongdoing occurred abroad. As it turned out, however, the finding of no joint tortfeasance meant that the plaintiff could not proceed against either defendant and had to find some other way or place to recoup its losses.

Behaviour that is not serious enough to rise to the level of joint infringement can nevertheless have consequences. The person may not have to pay money but they may have to adjust their conduct. Courts everywhere have proved willing to deal with intermediaries such as online marketplaces and search engines that facilitate or enable IP infringement while not technically being infringers or accessories. Thus, a British Columbian court issued an injunction against Google ordering it to de-index websites worldwide that offered specified IP-infringing goods, and was upheld on appeal (Google Inc v Equustek Solutions Inc [2017] 1 SCR 824). Google was no infringer or accessory but it at least owed the IP holder a duty to take reasonable steps to prevent such infringements on its platform as were brought to its attention. It was liable to pay money only if the injunction was ignored. Ěý

Canadian case law has not adopted a generalized tort principle of accessory liability beyond joint infringement. The IP cases reflect this by refusing to label as infringer anyone who merely helps, facilitates, or contributes to another’s infringement (e.g., Copeland-Chatterson Co v Hatton (1906) 10 Ex CR 224, 241, aff’d without appealing this point (1906) 37 SCR 651 (patent); Nycomed Canada Inc v Teva Canada Ltd 2012 FCA 195 at [3], aff’ing 2011 FC 1441 (patent); Prest-O-Lite Co v People's Gas Supply Co (1917) 16 Ex CR 386, 389, aff’d (1917) 55 SCR 540 (trademark)). Such a person may, however, owe IP holders a duty to take steps, where feasible, to prevent infringements IP holders bring to its notice, although without any monetary liability to them except where any injunction is disobeyed.

Whether Canadian IP policy should change tack and hold that inducement or contribution, without more, creates monetary liability — as well as the remaining panoply of remedies — for infringement is thus a decision more suited to legislative amendment than to a first instance court in an undefended case. Parliamentary drafters know how to extend such liability where that is intended, and IP rights are, after all, “derived from statute and not from the Ten Commandments” (CBS Songs, above, at 608).

There is, admittedly, one exception to this position, and it is what the Federal Court in L3D Distributing relied on. The Court’s predecessor, the Exchequer Court of Canada, held over a century ago that knowingly inducingĚý infringement of a patent, without more, itself infringes the patent and subjects the inducer to the full range of infringement remedies, where the inducement works (Copeland-Chatterson, above, at 92). A line of Federal Court and Court of Appeal decisions since then has consolidated this position for patents (see, e.g., Corlac Inc v Weatherford Canada Inc 2011 FCA 228 at [162]ff; Western Oilfield Equipment Rentals Ltd v M-I LLC 2021 FCA 24 at [48]-[70]), eclipsing (until recently) pleas of joint infringement by common design (see now Rovi Guides Inc v Videotron Ltd 2022 FC 981 at [46]-[7]). These decisions on inducement are probably now beyond question, even though the Supreme Court has never examined the issue. Yet a major weakness runs through them: the key English patent case on which Copeland-Chatterson (above) relied, Innes v Short (1898) 15 RPC 449 (QB), is not treated in England as holding that inducement is itself wrongful. Rather, in line with the general law of torts, Innes v Short has been authoritatively interpreted there as holding that the inducement must be in furtherance of a common design, so that the inducer and the inducee are joint infringers (see CBS Songs, Ěýabove at 606-7; similarly Sea Shepherd, above at [23]). Without the presence of a common design, Innes is otherwise a case of “somewhat doubtful authority” (Adhesive Dry Mounting Co Ltd v Trapp & Co (1910) 27 RPC 341, 353 (Ch); see too Re L’Air Liquide SA’s Patent App’n (1930) 49 RPC 428, 430; Firth Industries Ltd v Polyglas Engineering Pty Ltd [1975] HCA 25 at [16] (Aust HC); CCOM Pty Ltd v Jiejing Pty Ltd (No 2)Ěý at [153], aff’d [1994] FCA 1168 (Aust Full Fed Ct)), even though the judge there decided to award only an injunction but no monetary remedy against the infringer.

The Federal Court in L3D Distributing went into none of this. It simply applied the syllogism that what held for Canadian patent law held for copyright and indeed all Canadian IP. Inducing infringement was therefore, without more, wrongful (L3D Distributing at [71]-[4]). This conclusion, however, rests on shaky ground. Since inducement liability is not found in the Copyright Act, the first question must be whether the Act includes it by implication. That in turn depends on the answers to two further questions: Is inducement a general principle of accessory liability in tort? If so, is its inclusion consistent with the Act?

The most likely answer to both these questions is, no. Since inducement is not a general tort law principle in Canadian law, it is a large leap to add it as such to copyright law, or indeed any non-patent IP. The patent law anomaly need not infect other IP. And even if inducement were such a general principle, its inclusion seems inconsistent with the Copyright Act. Section 27 sets out in some detail who infringes what copyright and when. No room seems left for another form of infringement, even more so because someone who induces infringement necessarily “sanctions, approves, and countenances” it and thus falls within the ´ˇł¦łŮ’s authorization right (SOCAN v Entertainment Software Ass’n 2022 SCC 30 at [104]). Authorization indeed elevates inducement to primary rather than accessory liability: authorization is complete whether or not any later infringement occurs (SOCAN, ibid at [104]-[5], [107]). The greater liability (authorization) must thus encompass the lesser (inducement).

The undefended nature of the case before the Federal Court highlights further concerns with its conclusions. First, on copyright: (i) inducement liability is found in no other Canadian copyright decision in the century since the Copyright Act was enacted; and (ii) the Court took no account of the unanimous contrary holding of the UK’s highest court on comparable copyright provisions, that inducement is only a form of joint infringement (CBS Songs, above, at 608-9, foll’d as a general tort principle in Southpaw Credit Opportunity Master Fund LP v Asian Coast Development (Canada) Ltd 2013 BCSC 187 at [200], [205]).

Second, on non-patent IP generally: (i) the Court’s comments here were clearly obiter; (ii) the Court did not consider the contrary views proffered in the leading UK decision, that inducement as a form of joint infringement applies to all IP (Sea Shepherd, above at [44], [56], [58]); (iii) the only non-copyright authority the Court cited (Hanson Int’l Inc v Whirley Industries Inc 2002 FCT 1045) was an industrial design case where a prothonotary’s refusal to strike an assertion of inducement before trial as being unarguable is clearly no authority that such an assertion would succeed; (iv) the Court’s statement that inducement is a “common law cause” that is “[i]n addition to the statutory causes of action” (L3D Distributing, above at [71]) is an odd comment for a court that lacks jurisdiction over any “common law cause;” (v) inducement is anyway not a “common law cause” (McCain Foods Ltd v J R Simplot Co 2021 FCA 4 at [62] (“not a distinct tort”)), but at best only a form of accessory liability.

Had joint copyright infringement been properly pleaded in L3D Distributing, the defendants would likely have been found to be joint infringers with their consumers. The necessary common design or intent between inducer and inducee need not be express. A tacit agreement, inferable from the circumstances of even an undefended case, suffices. Thus UK courts have found joint infringement based on a common design or intent where (i) the inducer was a peer-to-peer file-sharing operation or an app using BitTorrent or some other means of circumventing encrypted or password-protected content, and (ii) the targets were users or hosting websites that were induced or persuaded to stream, download or make infringing content available in furtherance of the common design (Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 at [82]-[3] (Ch) (Pirate Bay); Twentieth Century Fox Film Corp v Sky UK Ltd [2015] EWHC 1082 at [51]-[6] (Ch) (app using BitTorrent protocol); Young Turks Recordings Ltd v British Telecommunications Plc [2021] EWHC 410 at [68]-[71] (Ch) (“stream ripping” app). Since a finding of joint infringement is both “fact sensitive and policy-driven” (Barclay-Watt v Alpha Panareti Public Ltd [2022] EWCA Civ 1169 at [62]), it is no great leap in L3D Distributing to infer not only inducement but also a common design to infringe copyright between the sellers and buyers of the equipment. Everyone intended that it be used to access programming which all knew was lawfully available only through other services authorized by the copyright owners of the programming. All roads can lead to Rome, provided one avoids the ditches.

The post “Inducing” Copyright Infringement in Canada: Is it a Thing? appeared first on IPOsgoode.

Aaron Dishy is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

The proposed Artificial Intelligence and Data Act (AIDA) would introduce greater regulation of the use and development of artificial intelligence (AI) in Canada’s private sector. On June 15^th, 2022, the Minister of Innovation, Science and Industry, François-Phillippe Champagne introduced Bill C-27, or the . Bill C-27 reiterates much of , tabled in 2020, reintroducing a modified Consumer Privacy Protection Act (CPPA) and Personal Information and Data Protection Tribunal Act (PIDPTA). However, Bill C-27 also introduced newly proposed legislation like AIDA which, if enacted, would make long advocated-for changes to Canada’s AI regulatory landscape.

AIDA would create new assessment and risk-mitigation tools for the use and transparency of high-impact AI systems. It would establish persons responsible for monitoring AI systems, such as the Artificial Intelligence and Data Commissioner — their role is to assist the Minister in the administration and enforcement of AIDA. Monetary penalties for the AIDA contraventions are also set out to enforce trust and deter the reckless and fraudulent uses of AI. In this way, Bill C-27 and AIDA would direct Canada towards harmonization with international regulatory frameworks, like that of the .

With that being said, AIDA would be more limited in scope when compared to its EU counterpart. For example, unlike EU legislation, AIDA would not apply to both public and private sectors, and all federal government institutions would be exempt.^[1] Further, EU legislation sets out specific prohibited AI practices, alongside criteria for determining the degree of risk presented by any AI system. AIDA establishes no specific prohibited AI practices and distinguishes only between high-risk AI and all other systems; complex and salient matters are left to incoming regulation.

Beyond its limited scope, AIDA may be uncertain in its delineation of provincial and federal responsibilities. For example, AIDA’s consideration of “regulated activity,” would capture many elements of AI development and use, including “designing, developing or making available for use an artificial intelligence system or managing its operations.”^[2] This language indicates the legislation is pursuant to Parliament's trade and commerce power under section of the Constitution Act, 1867. However, the federal government may also intend provinces to legislate on intraprovincial uses of AI, notwithstanding the rarity of circumstances under which such AI systems would be developed.

Lastly, attention is required of the breadth of persons AIDA considers “responsible” for an AI system in the course of trade.^[3] It holds designers, developers and managers of AI systems subject to AIDA’s administrative and operational requirements. If those parties are expected to monitor or conduct audits of consumer deployment of AI systems, assessments must be made of risk potentials and mitigation from both perspectives. Additional regulation may be required in the full consideration of such perspectives.ĚýĚý

AIDA remains proposed legislation and may be modified prior to implementation. However, it represents a much larger move by international legal bodies to regulate the development and use of AI. Businesses must be prepared for greater AI regulation in Canada. Thankfully, informative and responsive policy for the consideration of AI systems is also being developed, such as a by the Law Commission of Ontario. If correctly applied, AIDA should empower more Canadians to engage with trustworthy and transparent AI systems.

^[1] This may be extended to exclude provincial departments or agencies by regulation as set out in s.3 of AIDA.

^[2] See s.5(1) of AIDA.

^[3] Ibid at s.5(2).

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M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted onĚý on June 29, 2022.

On June 14, 2022, the Government of Canada introducedĚý,ĚýAn Act Respecting Cyber Security, which would enact theĚýCritical Cyber Systems Protection ActĚý(the CCSPA) to establish a regulatory cyber security framework and improve baseline security for vital public systems and services.

The CCSPA will apply to certain classes of federally regulated entities (Designated Operators) that are involved in four priority sectors: finance, energy, telecommunications, and transport. It is proposed to address outstanding gaps in the current regulatory environment by allowing the Government to (i) designate critical Canadian services and systems and the parties responsible for their protection; (ii) ensure regulated parties are adequately protecting cyber systems and compel action in response to cyber threats; (iii) mandate the reporting of select cyber incidents; and (iv) ensure a cross-sectoral approach to cyber security.

To accomplish the Government’s goals, the CCSPA will impose new compliance and reporting duties on Designated Operators which, among other things, require them to:

• establish a cyber security program that documents the protection plan for a critical cyber system;
• mitigate supply chain and third-party service or product risks;
• report cyber security incidents to regulators; and
• keep compliance records.

The CCSPA provides the Governor in Council with enforcement powers to issue Cyber Security Directions (CSDs) that require Designated Operators to take certain suggested actions regarding the protection of a critical cyber system. ĚýCSDs may be accompanied by specific deadlines and failure to comply may lead to administrative monetary penalties or regulatory offences resulting in fines or imprisonment.

The post Government Of Canada Introduces Bill C-26 That Proposes To Enact The Critical Cyber Systems Protection Act appeared first on IPOsgoode.

Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On July 15, 2022, the Supreme Court of Canada (“SCC”) released its for the case Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) v. Entertainment Software Association (“ESA”). The unanimous decision written by Justice Rowe clarified provisions of the Ěý(the “Ał¦łŮ”), ruling that the Act only requires users to pay one royalty fee to stream works online as opposed to the two fees proposed by .

Judicial History

In 2012, Parliament amended the Copyright Act to align copyright legislation with the , which Canada signed in 1997. Among the changes was the addition of section which was meant to clarify subsection Ěýdefining “communication of a work or other subject‑matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.”

As the central authority for the approval of tariffs, the held proceedings to determine the amount of royalties to be paid, receiving submissions from various groups on how to interpret the new sections of the Copyright Act. , a music licensing organization representing over 175,000 music creators, publishers and visual artists, argued that s. 2.4(1.1) required royalties to be paid whenever a copyrighted work was posted on the Internet for public access. The Copyright Board concurred, deeming that the act of making works available was in itself a separately protected and compensable activity. In effect, there would be two payable royalties: one for when the provider makes the work available online, and another for when a user actually streams or downloads a work.

The Federal Court of Appeal the Copyright Board’s decision, concluding that Parliament did not intend to introduce the two-royalties system for users accessing works online.

Key Takeaways

Although differing in the exact standard of review for the Copyright Board’s decision, the SCC unanimously dismissed SOCAN and Music Canada’s appeal. The SCC found that the Copyright Board and SOCAN’s interpretation of the Copyright Act’s new sections undermined the purpose of the Act itself. As per the principle of , “distributing functionally equivalent works through old or new technology should engage the same copyright interests […] what matters is what the user receives, not how the user receives it” absent parliamentary intent to the contrary. Section 2.4(1.1) merely clarifies that a work is “communicated” when it is made available or uploaded – as , streaming begins when the work was made available online and continues throughout to the end user’s accessing of the work. Thus, section 2.4(1.1) does not entitle authors to an additional “making available” royalty for making the work available online. It is merely part of the public performance right enshrined in section 3(1)(f).

The SCC also addressed two non-copyright specific issues relevant to the larger practice of law in Canada. Firstly, the SCC recognized a under to apply for instances of concurrent first instance jurisdiction, which allows both administrative bodies and courts to have this first instance jurisdiction over a legal issue in a statute (). Secondly, the Court reiterated the role international treaties play in statutory interpretation. Although WIPO’s Copyright Treaty is relevant to the statutory interpretation of the Act, it cannot “overwhelm clear legislative intent” (). The SCC found that the Copyright Board erred by privileging the Copyright Treaty and Canada’s signatory obligations over the domestic Copyright Act in its interpretation.

The Copyright Society of the USA will host a , breaking down the decision and exploring its broader implications for all stakeholders in the arenas of licensing, collective administration, and enforcement. The event features IP Osgoode’s own Professor David Vaver alongside Professor Ysolde Gendreau from the University of Montreal. It will be taking place virtually on Wednesday, August 3, 2022, at 12pm EST. Details and registration information can be found

Further reading:

Breakdown of SOCAN v ESA’s administrative law related holdings:

US Government’s Making Available Study:

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Michelle Mao is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

Reversing what seemed like a victory for supporters of AI-owned intellectual property, the full bench of the Federal Court of AustraliaĚýĚýthe majority view of the world: only human inventors can own patent rights to their creations.

Previously, IPilogueĚýĚýthat Australia has granted patent ownership to an AI inventor. In February 2022, however, the Federal Court of AustraliaĚýĚýof the United States and the United Kingdom in disallowing AI to be owners of patents, even if the product is solely created by AI.

To recap, the decision was about Dr. Stephen L. Thaler’s application for his AI, DABUS, to be the patent owner of an invention titled “,” a product solely created by DABUS without any human interference.

Previously, the Federal Court of Australia ruled that Australian patent law did not preclude “non-human” inventors from owning patents over their creations becauseĚý.

What Does This Mean in the Canadian Context?

, the Canadian Intellectual Property Office (CIPO) issued Ěýfor DABUS’ in Canada. While DABUS’ patent application is still developing in Canada, the recent reversal of the Australian decision will likely impact the future of patent ownership rights of AI.

In aĚý, it was reported that the CIPO had allowed AI to retainĚýcopyrightĚýauthorship to their produced work. This signals a shift in Canadian attitudes towards AI ownership of their work. This decision diverges from aĚýĚýfor a request to let an AI own its work due to a lack of “human authorship.” Meanwhile, in the UK, computer-generated works receive copyright protection, butĚýĚýthe author as “theĚýpersonĚýby whom the arrangements necessary for the creation of the work are undertaken”, implying a necessary human element as well for copyright ownership. Thus, CIPO has differentiated its approach from both the US and the UK in allowing AI to own the copyright to their works.Ěý

However, Canada’sĚýpatentĚýlaws are still veryĚýĚýafter British and American patent laws, which may influence how our courts interpret future patent ownership applications on behalf of AI-created products. InĚý, the Supreme Court has already implied that the meaning of “inventor” is interpreted as a human person.

Canada has different federal legislation regarding the various aspects of intellectual property. TheĚý,Ěý, andĚýĚýgovern the three main types of intellectual property rights in Canada. Whether these cases and legal trends will leave Canadian intellectual property laws fragmented in their approach to non-human creators and inventors, only time can tell. Based on current trends, Canada could become the first Western nation to grant patent rights to AI. Advocacy for AI inventorship has evolved considerably since Dr. Thaler and DABUS embarked on their journey for AI patent ownership. Along with the forward-looking Canadian attitudes towards AI-owned copyright and no explicit definition of inventor in the Canadian , it is very possible that Canada may once again choose to differentiate itself and embrace AI inventorship through AI-owned patent rights.

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Serena Nath is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

In April 2022, the federal government released its . This budget proposal included proposed changes to Canada’s . One of the proposed changes aimed to reform legislation regarding educational uses of copyright. In particular, the federal government pledged to amend the Copyright Act to protect and ensure the longevity of the educational publishing industry.

Support for the Proposed Amendments

Many in the field of education publishing saw these proposed changes as the holy grail they have desperately been searching for since the 2012 amendments to the Copyright Act which . The 2012 amendments resulted in a loophole that allowed for widespread photocopying at schools and post-secondary institutions without signing and paying for licences for copied educational materials. This resulted in losses of approximately $200 million in income for the Canadian writing and publishing industry, which effectively destroyed the industry. Thus, when the proposed federal budget announced the government’s urgent intentions to create a sustainable educational publishing industry, it is understandable why . Additionally, because of the lack of payment to the educational publishing industry, there has been a to develop new technologies in this industry, particularly regarding digital educational materials. Thus, many are hopeful that the proposed protection to the educational publishing industry will also incentivize the industry to now innovate to keep up with current times and changing curriculum.

Opposition for the Proposed Amendments

On the other hand, the proposed changes to the Canadian Copyright Act have also faced criticism from Canadian intellectual property scholars. In an addressed to the Federal government, 25 intellectual property scholars from across Canada have voiced their concerns regarding enacting these changes under the federal budget and instead urge the Federal government to enact any changes via the regular legislative process. The group argued that any changes may “throw off the balance between copyright holders and user rights, particularly in education.” Additionally, the group cautions against believing the story regarding lost profits from the Canadian educational publishing industry due to the 2012 amendments, and instead asked the government to review “compelling evidence” before taking any action. Thirdly, the group argued that if amendments proceed through the federal budget, they may be inconsistent with constitutional principles. The group was concerned that the pledged amendments would exceed Parliament’s legislative authority over copyright law and may intrude into the education sector, which is under provincial jurisdiction. Finally, they also warned that enacting the amending legislation through the federal budget is likely to result in a lack of review and democratic debate over the legislation.

Reconciling the Two Views

In my opinion, I can understand the scholars’ views of wanting to ensure constitutional compatibility, proper review of legislation, and a democratic debate. However, I also recognize the sense of urgency from the Canadian educational publishing industry. I believe that the publishing industry may be on the verge of a timely death, with many content creators not getting paid and the education system potentially suffering due to a lack of innovation in the educational publishing community. If any amendments were to occur via the regular legislative process, this may delay any detrimental effects to the educational publishing industry. It is unclear how this balance can be achieved, but I welcome any suggestions, thoughts and fresh perspectives in the comments section.

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M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted onĚý on May 18, 2022.

On May 2, 2022, Canada’s privacy regulatory authorities (the Regulators) issued aĚýĚýcalling for a legal framework that clearly establishes the acceptable circumstances for police to use facial recognition technology (FR).

Police agencies greatly benefit from FR, because it is a useful resource for solving crimes, locating missing persons, and supporting national security objectives. However, the Regulators noted that FR involves the collection and processing of highly sensitive biometric information, which raises a series of privacy and human rights concerns when it is applied on a large scale. Widespread adoption of the technology would enable police agencies to covertly identify and surveil individuals and this may impair Canadians’ privacy right to participate in the world without being regularly identified, tracked, and monitored.

The Regulators called for Canadian legislators to implement a legal framework that outlines the boundaries associated with FR. Although Canada’s current principle-based privacy laws are adaptable to evolving technologies, the Regulators took the position that they are too high-level to address the specific risks associated with police use of FR. They argued that the current legal framework leaves much discretion to police agencies, which creates the possibility for serious harms to an individual’s privacy and other fundamental rights.Ěý

In the joint statement, the Regulators suggested that a new legal framework should be implemented by legislators that includes the following:

• Defined Purpose and Prohibited Uses:ĚýA clearly defined purpose for police agencies to use FR and a list of prohibited uses, i.e. “no-go zones”.
• Necessity and Proportionality:ĚýOverarching requirements for the use of FR to be necessary and proportionate for a given objective.
• Independent Oversight:ĚýEmpowering an independent, external public body to oversee police use of FR, including requirements for police agencies to obtain authorization to launch an initiative.
• Mitigate Privacy Risks:ĚýPrivacy control measures that mitigate individuals’ risks, including controls to ensure the accuracy of information and appropriately limit data retention for police databanks.

Together with their joint statement, the Regulators released the final version of their joint privacy Ěýon FR use by police agencies that clarifies the agencies’ obligations under current laws. The guidance and joint statement are the product of a public consultation launched in June 2021, in which a large majority of stakeholders agreed that new legislation is required to govern police use of FR going forward.

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