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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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Background

In July 2021, the Government of Canada launched a consultation on Artificial Intelligence (“AI”) and the Internet of Things (“IoT”). The goal was to balance the realities of developing technologies with the interests and needs of artists, innovators, and consumers. In the , the government stated its aim of “making sure that our digital and data-driven economy is built on a strong foundation of trust and that AI is developed and used responsibly to the benefit of all citizens”.��

In response to the call to submissions, thirteen scholars in Intellectual Property, including Osgoode Hall Professor Carys Craig and Queen’s Law Professor Bita Amani, for how the government could address these concerns. The submissions are divided into the categories of AI policy reform and IoT policy reform. In Part 1, I will summarize some of the key points presented by the group concerning AI, and in Part 2, I will focus on their suggestions concerning the IoT.

Balancing the Public Interest

The scholars acknowledged the government’s commitment to “keep pace” with technological developments in AI while through Federal statute (the Copyright Act). In so doing, they relied on , where the court described copyright laws as “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”. The group also stressed the importance of technological neutrality and referenced . In that case, the court grappled with the importance of developing copyright legislation independently, without prioritizing one form of technology over another. The court placed further emphasis on the importance of drafting copyright legislation impartially, without making specific objectives concerning AI, as the technology will likely continue to develop and change.

Text and Data Mining��

The group highlighted their concerns regarding the regulation of text and data mining (TDM) activity under the Copyright Act. TDM is important to the public interest, as it supports AI research and development. Moreover, TDM plays a role in scholarly and commercial research, education, and journalism.

The authors pointed to current legal barriers for those who participate in TDM. Included in these barriers was the uncertain applicability of section 3(1) of the Copyright Act. The confusion arises from . The Supreme Court concluded that the creation of electronic copies through “cashing” did not implicate the interests of copyright owners. Yet, the scholars suggested that the legislature leaves room for confusion, as it is not clear whether the interpretation of TDM would be considered prima facie infringement by the courts.

The group proposed that the Government of Canada create a fair dealing doctrine to accommodate activities, such as research to accommodate TDM activities. Further, they suggested that the Government enact specific statutory provisions that allow for legal TDM activities that require the use of copyrighted works.

Authorship and Ownership of Works Generated by AI

One burgeoning issue within intellectual property law is legal protection for AI-generated works and inventions (see IPilogue posts regarding inventorship rights for AI , , here, and ). The scholars rejected the notion of copyright protection for AI-generated works. As such, they suggested the government make amendments to the Copyright Act delineating the requirement of human authorship to gain copyright protection.

Final Recommendations

In outlining their concerns about the future of Copyright legislation and its potential to protect the interests of Canadians, the group provided their final recommendations to the government, which included amending the Copyright Act to include a broad statutory provision that allows the use of TDM without the concern of copyright infringement. The provision should apply to all technology users, including those using TDM for commercial and non-commercial purposes. The scholars also suggested amending section 29 of the Copyright Act to include a purposes list and an enumerated purpose for TDM or data/informational analysis.

Another final recommendation asked the government to clarify the definitions in section 2 of the Copyright Act to specify that an author is a human being or natural purpose. Further, it was suggested that the Government of Canada amend section 5 of the Copyright Act to specify that copyright shall not be granted to a work unless its author is human.

Public consultations are touted as one of the . Canadians can remain sanguine that the Government of Canada will heed the suggestions provided by the 13 IP scholars to protect and promote the interests of Canadians while also acknowledging the benefits that come with technological advancement. Contribution to the consultation through scholarly insight and expertise is also commendable.

The post Canadian IP Scholars Submit their Recommendations to the Federal Government on AI, the Internet of Things, and the Modernization of the Copyright Act - Part 1 appeared first on IPOsgoode.

On November 9, 2021, the Office of the Superintendent of Financial Institutions (OSFI)����a public consultation on Draft Guideline B‑13: Technology and Cyber Risk Management (the Guideline). It applies to federally regulated financial institutions (FRFIs) and addresses OSFI’s expectations in relation to technology and cyber risks.

The Guideline is organized into five domains, with each domain describing OSFI’s desired outcome for FRFIs in a certain aspect of technology and cyber risk management:

1. Governance and Risk Management:��the FRFI has a clear framework and comprehensive strategy to govern technology and cyber risks.
2. Technology Operations:��there is��a resilient and scalable technology environment in place that is kept up-to-date by robust operating processes.
3. Cyber Security:��the FRFI is able to maintain the confidentiality, integrity, and availability of technology assets.
4. Third-Party Provider Technology and Cyber Risk:��third-party providers deliver reliable and secure technology and cyber operations to the FRFI.
5. Technology Resilience:��the FRFI has proper disaster recovery capabilities that allows the delivery of technology services through operational disruption.

In its announcement of the consultation, OSFI commented on the importance of stakeholder engagement to strike the appropriate balance between its prudential objectives, while still allowing financial institutions to compete. Accordingly, OSFI welcomes public feedback on the Guideline and is especially interested in feedback that addresses the clarity and application of their outlined expectations, the balance between principles and prescriptiveness in these expectations, and other suggestions that relate to OSFI’s mandate.

The consultation is open until February 9, 2022 and comments can be submitted at��Tech.Cyber@osfi-bsif.gc.ca.

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M. Imtiaz Karamat is an IP Osgoode Alumnus and Licensed Lawyer in Ontario

On June 17, 2021, the Ontario Ministry of Government and Consumer Services (MGCS)����the launch of public consultation on the MGCS’ white paper, which outlines proposals for reforming Ontario’s privacy protection framework.��

Ontario is considering implementing its own provincial privacy and data protection law that is aimed at giving individuals more control over the collection, use, and safeguard of their personal information; protecting vulnerable populations like children and youth; and increasing trust in the digital economy. To achieve these goals, the MGCS’ white paper outlines proposals in seven key areas that should be considered for the new law:

1. introducing a rights-based approach to privacy for individuals, including the right to ask for their personal data in a digital format and the deletion of collected personal information;
2. addressing the safe use of automated decision-making and artificial intelligence to prevent unjustified surveillance;
3. improving on current methods and creating modern rules for the safe collection and use of personal data;
4. introducing new data-transparency rules for Ontarians;
5. protecting vulnerable groups that have higher risks associated with the use of modern data practices;
6. providing more oversight and enforcement powers to the Information and Privacy Commissioner of Ontario; and
7. working with Ontario innovators to strengthen privacy protections.

To increase the impact of the above proposals, Ontario is also considering expanding the scope of privacy requirements beyond the limitations of the federal government’s current privacy regime. The federal privacy regime is limited to organizations that conduct commercial activities, which allows many private sector organizations that collect and use Ontarians’ personal information for non-commercial purposes to not be covered by privacy requirements. To address this gap, the province is considering including non-commercial organizations under its privacy framework, such as charities, trade unions, and not-for-profit organizations.

MGCS is seeking feedback on its white paper from stakeholders and the general public until August 3, 2021. Details on how to participate can be found��.

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