This year’s problem was extremely timely to the pandemic-pervaded world that we find ourselves in. The topic is a dispute arising from research and development into the COVID-19 vaccine. The fictional problem involves Respondents granting Ross Pharmaceuticals (a third-party to the arbitration) an exclusive license to use a viral vector for the development of vaccines in the field of “malaria and related infectious diseases”. It is later discovered that the vector in question has a high potential of being used in respiratory vaccine development research. With the advent of COVID-19, Ross claimed that the arguably vague language used in the original licensing agreement allows them to carry out vaccine development for respiratory diseases using the vector. Later, the respondents granted the Claimant the rights to use that viral vector for vaccine development in the area of “respiratory infectious disease”. Once the claimants became aware of Ross’ allegation, they initiated an arbitration claiming that the Respondents had violated their contract by providing goods encumbered by a third-party IP claim in contravention of Article 42 of the United Nations Convention on Contracts for the International Sale of Good (CISG), which the Claimant believes applies to its contract with the Respondents.

In a nutshell, the claimants alleged that the respondents signed an agreement that Ross claimed gives them the right to carry out respiratory disease research using the viral vector; then, knowing of this claim, the respondents promised those very same rights to the claimant in violation of Article 42 of the CISG. As such, the Claimant request that the arbitral tribunal declare that the respondents breached their contractual responsibilities. In reply, the respondents allege that the claimant is relying of a frivolous claim in order to skirt their contractual responsibilities. This year’s dense fact pattern generates various interesting sub issues including: is Ross’ claim frivolous? Were the respondents obligated to inform the claimant of a third-party allegation that they consider spurious? Should the claimant have been aware of Ross’ claim before entering into the contract considering that an article published in a popular industry journal made the allegation public? I will answer these questions and give practical advice that flows from this hypothetical.

So, is Ross’ claim frivolous?

On its face, it would appear so as COVID-19 does not neatly fit into the category of infectious diseases related to malaria: COVID-19, unlike malaria is a respiratory disease. COVID-19, unlike malaria, is caused by a virus rather than by a parasite. COVID-19, unlike malaria, directly and primarily affects the respiratory system. However, the Claimant posits that as COVID-19 is an infectious disease with almost identical primary symptoms to malaria including fever, shaking, chills, headaches and muscle aches the question of whether COVID-19 is related to malaria is neither frivolous nor unfounded. Ultimately, while the underlying facts suggest that the intentions of Ross and the respondents were not to extend the license to respiratory disease research, the ambiguity of the language may be enough to justify a valid claim pursuant Article 42 of the CISG, thereby triggering a breach of contract.

So, were the respondents obligated to inform the claimant of a third-party claim that they consider spurious?

The claimants argue that since the respondents had actual knowledge of Ross’ allegation, they should have communicated this allegation to the claimants so that they may have availed themselves of their responsibility under the CISG. The respondents argue that as Ross' allegation is a frivolous negotiation tactic which poses no serious legal risk, they did not have this responsibility. While Ross’ claim is not the strongest, ultimately the respondents should have communicated Ross’ allegation to the claimants in order to avoid further fallout from their poorly worded initial agreement. While conveying this information may have allowed the claimants to negotiate a better deal, the risk of being pulled into a costly legal dispute and the tarnishing one’s reputation outweigh any benefit that is to be had by remaining silent on inconvenient allegations.

Finally, should the claimant have been aware of Ross’ claim before entering into the contract considering that an article published in a popular industry journal made the allegation public?

The statutory responsibility that buyers have to investigate the status of the IP they are purchasing is low under the CISG. Sellers are only exempted from their responsibility of delivering goods free from an IP claim if the buyer “knew or could not have been unaware of the right or claim”. However, as this hypothetical reveals, lacking information about the products one is purchasing can be highly prejudicial and unnecessary when there is publicly available information.

The main lessons to take from this hypothetical are threefold. First, the wording of IP transfer agreements should leave no room for ambiguity. Misunderstandings regarding IP rights are likely to result in not only disputes within the contracting parties, but with all other parties that have a stake in the IP in question. Second, transparency is key when transferring IP and one should not bank on inconvenient information remaining hidden. Third, although the licensor holds the greatest responsibility to ensure that the transfer of products does not lead to a subsequent IP dispute, the licensee is well to take reasonable steps to investigate publicly available information about the IP rights they are purchasing. In the modern world, having full information is key when it comes to making effective business decisions and doubly so when those decisions involve IP.

On a final note, I would like to extend my heartfelt appreciation to my teammates whose hard work has made Osgoode Hall proud. I would also like to thank our phenomenally dedicated coaches: Lauren Tomasich, Mani Kakkar and Sarah Firestone. They not only taught us how to be great advocates but also inspired us with their outstanding mentorship, passion and skill.

Written by Joaquin Arias, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.��

The post Is COVID-19 related to Malaria? - Intellectual Property in International Commercial Arbitration appeared first on IPOsgoode.

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COPYRIGHT LAW

CUSMA Implementation

On July 1, 2020, the (CUSMA) officially came into force, replacing the North American Free Trade Agreement (NAFTA). Signed in 2018, the desired effect of CUSMA is to preserve existing trade relations between the three North American countries, and to introduce modernized provisions that address 21st-century trade issues. In particular, the builds upon the legal framework of standards in North America for the protection and enforcement of IP rights.��

Regarding copyright and related rights, Canada is increasing the duration of its term for general copyright protection from 50 to 70 years following the life of the author. Canada will have a two-and-a-half-year transition period to realize this new measure. Additionally, the term of protection for performances and sound recordings will also increase from 70 to 75 years plus life. CUSMA will also increase protection for Rights Management Information (RMI), also known as digital watermarks. While Canada already imposes criminal remedies for altering or removing Technological Protection Measures (TPMs, or digital locks), the Agreement creates new criminal remedies for circumventing RMI. Organizations will have to be mindful when implementing these new provisions to ensure that their practices align with CUSMA’s new obligations.

Canadian Copyright Case Law

91��ɫ v The Canadian Copyright Licensing Agency, 2020 FCA 77

On April 22, 2020, the regarding a dispute between 91��ɫ (“91��ɫ”) and The Canadian Copyright Licensing Agency (“Access Copyright”), holding that the tariffs set against 91��ɫ by the Copyright Board are not mandatory, but dismissed 91��ɫ’s counterclaim regarding the fair dealing guidelines. Access Copyright had sued 91��ɫ for non-payment of tariffs, arguing that they are mandatory and enforceable against anyone who infringes upon a copyright owner’s exclusive rights. Following this decision, both parties filed for leave to appeal the FCA decision to the Supreme Court of Canada.

Tariffs
The FCA held that the tariffs set by the Copyright Board are not mandatory. Because 91��ɫ opted out of the tariffs in 2010, they are not enforceable against 91��ɫ. On this issue, the FCA stated, “Acts of infringement do not turn infringers into licensees so as to make them liable for the payment of royalties. Infringers are subject to an action for infringement and liability for damages but only at the instance of the copyright owner, its assignee or exclusive licensee.”

Fair Dealing
91��ɫ argued that it was not accountable for any tariffs associated with the reproduction of materials because they met their “” and therefore constituted fair dealing pursuant to section 29 of . On this issue, the FCA found that the Federal Court made no palpable error in its analysis, concluding that even though copying followed the guidelines, this did not necessarily make it a fair dealing.

Continuing into 2021
On October 15, 2020, the Supreme Court of Canada granted leave to appeal. This eagerly anticipated decision will affect many of Canada’s educational institutions who opted out of paying tariffs and have also followed the Fair Dealing Guidelines discussed in this decision. Further, a Supreme Court decision in 91��ɫ’s favour will surely cause businesses who rely on similar tariffs to rethink their business model.

Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504

On April 23, 2020, Justice Paul Schabas’ released his decision in the case of . Filmmaker Tommy Wiseau brought a claim against the defendants, alleging that their documentary, Room Full of Spoons, about Wiseau’s film, The Room, breached his copyright. In his reasons, Justice Schabas provides artists in Canada with an authoritative statement defining documentaries an allowable purpose under the Copyright Act’s fair dealing provisions, “to the extent that a documentary uses copyrighted material for the purposes of criticism, review or news reporting.”

The decision affirms fair dealing as a user’s right, as opposed to a defense to the copyright infringement alleged by the plaintiff, solidifying the balancing of rights and freedoms as a core purpose of the Canadian Copyright Act. In addressing the Copyright Act’s fair dealing provisions, the Court offers useful guidance to documentary filmmakers wishing to stay on-side with section 29 through an analysis of the factors outlined in . A more in-depth discussion can be found . As well, Justice Schabas’ reasons address the Copyright Act’s moral rights provisions, fundamentally finding that criticism or negative tones alone will not trigger a breach of an author’s right to the integrity of a work.

Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2020 FCA 100 & CMRRA-SODRAC Inc. v. Apple Canada Inc., 2020 FCA 101

On June 5, 2020, the Federal Court of Appeal released two decisions (2020 FCA 100 and 2020 FCA 101) which ruled on the applicability of the “making available right” (“MAR”) under s. s.2.4(1.1) of the Copyright Act. The FCA found that songwriters are not entitled to royalties when music is first posted online, but only after it has been downloaded. This decision overturns a 2017 ruling from the Copyright Board, which found that composers and songwriters are entitled to two royalties: first when it is made available under a streaming platform such as Apple Music or Spotify, and second when the song is downloaded or streamed.

By way of background, The Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) administers the right to “communicate” musical works on behalf of copyright owners. It filed with the Copyright Board proposed tariffs for certain years for the communication to the public by telecommunication of works in its repertoire through online music services including Apple Music and Spotify. These tariffs are available when a musical work is “communicated.”

After SOCAN had filed its proposed tariffs, the Copyright Act was amended to include the MAR Provision, which reads as follows:

For the purposes of this Act, 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.

This raised the question of whether the mere making available of a work on a server for the purpose of later streaming or download by the public was a “communication” for which a tariff was payable. In 2017, the Copyright Board concluded on the basis of expert witnesses that the double royalty scheme is available.

Stratas J, writing for the FCA, overturned this conclusion and stated that the Copyright Board "skewed its analysis in favour of one particular result" and relied on "leaps of reasoning" that are incompatible with the precedent set out in the Supreme Court of Canada’s (SCC) 2012 Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada decision. In that decision, the SCC concluded that transmission over the Internet of a musical work that results in a download of that work is not a communication.

PATENT LAW��

The Impact of COVID-19 Legislation on the Patent Act and Patentee Rights

(“An Act respecting certain measures in response to COVID-19”) received Royal Assent on March 25, 2020.�� Included in this bill was the addition of section 19.4 to the which significantly changed the rights of patent owners this year. For instance, while section 19.4 allowed the to authorize the government’s use of previously patented inventions to respond to a public health emergency, the Commissioner’s new powers permitted authorization to be granted to other entities as well. In addition, there was no requirement for applicants (be they the government or otherwise) to inform the patentee in advance of applying for authorization to use its patent. This meant that patentees received no notice if an applicant applied to use its intellectual property. Instead, patentees only received notice if the Commissioner granted authorization to the applicant following their submission. Moreover, section 19.4 precluded patentees to an express right of appeal of the Commissioner’s authorization. Instead, patentees were left to rely on section 19.4(8) of the Act and had to apply to the Federal Court to prevent the government (or any applicant) from “making, constructing, using or selling the patented invention in a manner that [was] inconsistent with the authorization.”

While patentees seemingly received little benefit from the Patent Act's amendments mentioned above, the legislative changes offered some positive developments for patent owners. For example, pursuant to s.19.4(5), holders of the patent are compensated for government use, “taking into account the economic value of ‘the authorization and the extent to which they make, construct, use and sell the patented invention.’” Additionally, as of September 30, 2020, the Commissioner can no longer award the government with any authorizations, which effectively serves as an imposed limit on the Commissioner’s powers. While COVID-19 may arguably be captured by other provisions of the Patent Act (cf. s. 19 or s. 21), s. 19.4 clarifies the boundaries of government uses of patents for public health emergencies.��

CIPO Issues New Guidance Document After Federal Court Rejects Problem-Solution Approach to Claim Construction

Following the 2020 Federal Court decision in , CIPO released a new to clarify patentable subject matter under the Patent Act. The court, and CIPO, endorsed the purposive construction approach to constructing claims set out in 2000 by the SCC in and . The new guidelines cover the framework to be followed by patent examiners while identifying certain elements of patent claims as essential. CIPO’s earlier pointed at undertaking claim analysis, which involved identifying the “proposed problem to the disclosed solution.” The Federal Court in Choueifaty clarified this problem-solution test as incorrect for claim construction.

The Federal Court held that a correct approach looks at the entirety of the specification and presumes an element as essential unless demonstrated to the contrary. Purposive construction attempts to give effect to the intentions of the applicant in determining the scope of the claimed monopoly.

This is particularly important for computer-implemented inventions. CIPO, in the , clarified that an algorithm that improves the functioning of the computer would constitute a single invention and is patentable subject-matter. However, the mere use of a computer to execute an algorithm remains nonpatentable subject-matter under subsection 27(8) of the . This update has brought much needed clarity to the subject matter eligibility issues in computer-related patents.

TRADEMARK LAW

Claims to Official Marks not a Complete Defence to an Infringement Claim��

In February 2020, the Federal Court of Appeal upheld the Federal Court’s decision in , finding that public authorities cannot rely on relating to official marks as a complete defence against an infringement claim. At its most basic level, official marks allow public authorities to , even those that may not otherwise be registered as regular trademarks. Quality Program Services Inc. (QPS) brought a Federal Court claim against the Ministry of Energy (MOE) for infringing their “EMPOWER ME” trademark related to energy awareness, conservation, and efficiency services. The MOE had launched a website with the mark “emPOWERme” to educate Ontario residents about the province’s electricity system. In response to QPS’s claim, the MOE sought protection and public recognition of its mark as an official mark pursuant to which states that “no person shall adopt in connection with a business, as a trademark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for… any badge, crest, emblem or mark…adopted and used by any public authority, in Canada as an official mark for goods or services.”

However, the Federal Court was not persuaded that s. 9 provided the MOE complete immunity from an infringement claim. Instead, it was recognized that the infringement rights of a trademark holder, such as QPS under , could not be ignored simply because a public authority has been given public notice of its adoption and use of an official mark, especially when that mark follows a registered trademark which could cause confusion between the two marks, as was the case here. The Federal Court of Appeal further that “a public authority that chooses to use a mark that is confusing to a registered trademark does so at its peril.” As a result of this case, we get more clarity and limitations to the confusing and all-encompassing world of official marks. While it is clear that official marks following an existing trademark do not automatically strike down an infringement claim, the official mark and the preceding trademark must be similar in some way to set off a trademark confusion analysis.

Lack of Use is Insufficient for Opposing a Trademark Application

In , the Federal Court affirmed the Registrar’s decision to reject Pentastar Transport Ltd’s opposition to Fiat Chrysler Automobiles (FCA) US’s trademark application for Pentastar. Pentastar Transport Ltd owns a registered mark Pentastar for its oil and gas services, whereas FCA US applied to register Pentastar for its vehicle engines. Pentastar’s ground of opposition is that FCA US did not possess a genuine intention to use Pentastar for its engines, which contravened s. 30(e) of the old Trade-Marks Act. As summarized��, “opposition proceedings involve a two stage inquiry. First, the opponent bears an evidential burden to establish that the facts alleged to support the issue exist. If established, then the applicant bears a legal burden to show that its application does not contravene the provisions of the Act as alleged.” The Court upheld the Registrar’s factual finding that Pentastar did not adduce sufficient evidence as the factual ground of its opposition. The Court also agreed with the Registrar that “use” and “intended to use” were not synonymous. In this case, this ruling entails that even though FCA US had not started using Pentastar as a trademark on its engines, it did not follow that FCA US had no intention to use it in the future. In fact, there was circumstantial evidence (as summarized��) indicating that FCA US indeed harbored the intention to use Pentastar as a mark for its engines.

United States Supreme Court Developments

In April 2020, the United States Supreme Court decided the case . The Court determined that even an innocent trademark infringer could lose its profits and that wilful infringement is not a pre-condition to a profits award. The Court came to this determination by interpreting which does not mention the condition of wilful infringement. Fossil was liable for $6.7 million in profits to Romag, for using counterfeit Romag fasteners in its manufacturing of leather goods.

In June 2020, the Court in held that a term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Booking.com sought to register a mark with the USPTO but was denied because “Booking.com” was not a generic name to consumers. Therefore, the term was not held to be generic. The USPTO analyzed the terms “Booking” and “.com” separately. This decision suggests that domain names may need to be marketed to consumers as such to be trademarked.

Trademark Law and Sports in 2020

With all its troubles, 2020 has also been an eventful year for trademark lawyers in sports. In February, a Maryland-based nonprofit Game Plan����against Lebron James and his commercial associates, including Nike, ESPN, and Take-Two Interactive. Game Plan claims that Lebron and his associates had encroached upon its trademark rights by unauthorized use of the registered slogan “I am more than an athlete” to make profits. In April 2020, Michael Jordan����in China that had dragged on for eight years. China’s highest court ruled in favor of Jordan against a Chinese company which had been marketing its sports products under the brand name Qiaodan - a Chinese transliteration of Jordan - since the 1980s.

In September, soccer superstar Leo Messi’s legal team����Europe’s highest court that Messi should be granted the exclusive right to the brand name Messi. Other similar names, such as “Massi,” should be disallowed for commercial purposes to avoid confusing the consumers. Lastly, although the Washington Football Team (formerly, Washington Redskins) changed its name in 2020, it now runs into��. As it turns out, many alternative team names have already been registered by a trademark squatter Martin McCaulay. Washington fans may need to wish for the new year that their team will receive a new name that neither infracts trademark law nor carries racist connotations.

Fashion Trends Followed by Brand Owners throughout the Pandemic��

As it is said, every crisis brings new opportunities. While some members of the general public may have doctor-recommended masks in the early months of the pandemic, they have become a trend for upcoming years. As a result of this trend, big luxury brands tapped into this unchartered territory just after the���� in July. Luxury fashion companies are now monetizing their brand value through this����i.e., face masks and shields, which have become the new reality and necessity of everyday life. Fashion brands like����have already filed applications for their trademarks in classes 9 and 10 with the USPTO and other countries for “Protective” and “Respiratory Masks.” In September,����for its uniquely styled��Toile Monogram print for its��Face Shield, filed for��“protective face shields; protective masks; protective chin shields; [and] protective gloves” (class 9), and “face masks for medical use; Surgical masks; protective face shields for medical use; protective chin shields for medical use; [and] gloves for medical use” (class 10).����

On the other hand, , Nike, and����masks also lead the charts of most searched and purchased masks.��Small and high street brands are attempting to claim proprietary rights in these trademark classes because of the long-term monetary potential. The new fashion ornament brings in value, and the brand owners wish to benefit from damages in infringement and counterfeits cases. Counterfeits are also escalating on e-commerce portals, such as��. A Chinese company has filed a trademark infringement suit for its brand����in the Illinois state. Furthermore, on December 14, 2020 the����announced an initiative to accept expediated examination requests for trademark applications for COVID-19 related goods and services, which include sanitary masks and other things. In view of this, we can predict an����from such luxury and burgeoning fashion brands.����

Bricks and Mortar Presence No Longer Necessary to Establish Use of a Trademark

In the past, the Federal Court of Canada has been unclear as to the fate of travel-related services that do not have a physical presence in Canada, but seek to maintain their Canadian trademark registration through regular use. However, following the Federal Court of Appeal’s decision in , that fate has been clarified in favour of travel-related services. Since 2014, Miller Thompson has tried to expunge Hilton’s WALDORF ASTORIA trademark given that it did not offer physical WALDORF ASTORIA hotel-related services in Canada. As such, Miller Thomson commenced proceedings under s.45 of the Trademarks Act, which would require Hilton to show use of its WALDORF ASTORIA trademark during the three years prior to the proceedings, known as the Relevant Period.

But, on September 9, 2020, the Court of Appeal upheld the Federal Court’s decision that Hilton had demonstrated use of their WALDORF ASTORIA trademark during the Relevant Period. Among other evidence presented by Hilton, during the Relevant Period, Canadians could see the WALDORF ASTORIA trademark when visiting their website and could book reservations in several ways, including directly on the site. As well, Canadians generated $50 million in revenue for Hilton as a result of their stays at WALDORF ASTORIA hotels outside of Canada. Thus, the Court of Appeal summed up the as follows: “so long as consumers, purchasers, or members of the public in Canada receive a material benefit from the activity at issue, it is a service.” This means that online reservations and payment services for later stays outside of Canada are included under the meaning of “hotel services.” Furthermore, a brick and mortar hotel is no longer absolutely necessary to establish use. In fact, in the Court of Appeal’s conclusion, it stated that “the requirements for ‘use’ under section 45 of the Act must adapt to accord with 21st century commercial practices.” For other trademark owners facing the same issue as Hilton, the Federal Court of Appeal provided guidance on how to make a , including website metrics showing that Canadians access their services online and subsequently purchase services as a consequence of their mark being displayed.

Trademark Modernization Act of 2020 Passed

On December 21, 2020, Congress passed the . This bill was enacted to amend the 1946 Trademark Act and authorized third parties "." The bill also introduced a����that would allow any party to petition for the expungement of a registered trademark that is not commercially active. The goal of these amendments was to reduce the number of “” that were on the register despite not being in use, allowing a more productive, competitive commercial trademark market. These amendments are also speculated to affect the longevity of trademark registrations as trademarks become increasingly vulnerable to cancellation. The Trademark Modernization Act of 2020 will certainly continue to generate more discussion and result in changing practices in Canada.

Giuseppina (Pina) D’Agostino is��the Founder & Director of IP Osgoode, the IP Intensive Program, and the IP Innovation Clinic, the Editor-in-Chief for the IPilogue and the Intellectual Property Journal, and an Associate Professor at Osgoode Hall Law School.

With contributions from IPilogue Editors:

Copyright:��Meghan Carlin, Emily Xiang, Joaquin Arias, Sarah Raja,��Saumia Ganeshamoorthy

Patents:��Dan Choi, Gurbir Sidhu,��Khristoff Browning, Jin Xu,��Madelaine Lynch

Trademarks:��Adele Zhang, Aishwerya Kansal,��Jingcai Ying, Eloise Somera, Lauren Chan

Bonnie Hassanzadeh, Nikita Munjal, Sebastian Beck-Watt, and Alessia Monastero

The post 2020 IP Year In Review appeared first on IPOsgoode.

Initially, was sluggish, leading to an “AI winter” during most of the 20^th century. Only in the 1990 did AI development begin to . The exponentially increasing digitization and creation of data during the 2010s has further aided AI development, which relies on massive datasets to train burgeoning AIs. Although there are significant limits to the degree of creativity that machines can formulate, these limits are being rapidly expanded. AI’s recent contribution to art is a revealing development.

In 2018, a portrait christened Edmond de Belamy (pictured above) was produced by an AI built by Obvious, a Parisian art collective. The AI used a database with tens of thousands of portraits created between the 1300s and 1900s to train a machine learning computer program to produce a unique portrait. The painting surpassed its pre-auction value estimates of $7,000-$10,000 and . Similarly, an AI electronic composer called Aiva, trained on thousands of classical compositions, has released albums whose pieces have been used by

These developments pose problems for current intellectual property law schemes. This is because is they are premised on incentivizing and rewarding human creativity.  What is to be done when creativity becomes increasingly un-human?

Thus far, copyright law has not fully evolved to grapple with the intricate questions that creative AI’s raises. It was only in September 27, 2019, that the World Intellectual Property Organization (WIPO) held the , bringing together member states and other stakeholders to discuss the impact of Al on IP policy, with a view to collectively formulate the questions that policymakers need to ask. On December 13, 2019, WIPO published a draft issues paper on the impact of Artificial intelligence on IP Policy and invited member states to provide comments and suggestions. The submission period recently closed on February 14, 2020.

Hopefully, lawmakers continue discussing the issue of AI-IP law. In the mean time, academics are responsible for preparing the way for the evolution of AI copyright through the exploration of the intersection between computer science, economics, and law. To date, the common law has begun to elucidate the issue of AI-IP law, however, as AI is still an emergent and rapidly evolving technology, a detailed and unified vision for how AI will impact the development of Copyright Law is still pending.

An intriguing that has introduced guidelines for the field of AI copyright was recently published in the March 2020 issue of Nature Machine Intelligence by Jason K. Eshraghian. Dr. Eshraighain outlined how AI artists and the collaborators involved should assess their legal ownership, laying out some guiding principles that are “only applicable for as long as , the way humans and corporations are accorded”.

Before exploring how AI artists can protect their interests, it’s useful to understand the fundamental requirements of copyright law. According to the an artwork eligible for copyright must be an “original work of authorship fixed in a tangible medium”. Given this principle, Eshraghian explored whether it’s possible for AI to exercise creativity, skill, or any other indicator of originality. Ultimately he determined that currently, AI’s range of creativity doesn’t exceed the standard used by the US Copyright Office, which states that copyright law protects the “fruits of intellectual labor founded in the creative powers of the mind.”

Due to the current limitations of the technology, the development of the most advanced AI relies on some form of initial in order to prime a computer’s ability to create. At the moment, AI is a tool that can be used to produce creative work in the same way that a camera is a tool used to shoot creative content. Photographers do not need to comprehend the intricate technology of their cameras; as long as their content shows creativity and originality, they have a proprietary claim over their oeuvre.

The same concept applies to programmers developing an AI neural network. As long as the datasets they use as input yield an original and creative production, their work will be protected through traditional copyright law. The programmers do not need to understand the advanced, high-level mathematics, which in most AI systems are whose outputs are impossible to analyze.

Will machines and computer programs eventually be considered as creative sources and be allowed to own copyrights? Eshraghian cited the recent decision of wherein Lord Briggs, Justice of the Supreme Court of the UK, determined that “the court is well versed in identifying the governing mind of a corporation and, when the need arises, will no doubt be able to do the same for robots”.

In the meantime, Dr. Eshraghian suggests four lodestar rules in order to legally protect AI artists and collect information that may be useful in evolving copyright law in light of AI.

First, AI programmers should record their methods through online code repositories like or . Second, AI programmers should properly catalog their dataset inputs and the procedure by which they formulate their models. Demonstrating selectivity in deciding the input criteria signals human involvement and creativity. Third, in cases where user data is utilized, the programmer should catalog all runs of the AI algorithm to distinguish the data selection process. This information could be useful in determining whether those whose information was used to create the user-based input have a right to claim the copyright too. Finally, the output should avoid infringing on others’ content through methods like reverse image searches and software configuration management.

AI-generated artwork is still a vanguard concept, and the copyright law surrounding it is unclear, giving a lot of flexibility to AI artists. The guiding principles Dr. Eshraghian lays out will hopefully shed some light on the legislation we will eventually need for IP policy in light of AI and begin an important conversation between all the stakeholders involved.

Written by Joaquin Francis Arias. Joaquin is a contributing IPilogue editor, President of Osgoode’s Legal Entrepreneurs Organization and IP Osgoode Innovation Clinic Fellow. 

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