Many of you have read about the dispute over copyright ownership
of the monkey-selfie, where a primate took a digital photo that
went viral and for which the owner of the camera tried to claim
ownership. Ultimately the U.S. Copyright Office, in its draft Compendium of
the U.S. Copyright Office Practices, Third Edition, August 19,
2014, Chapter 300, stated that the photo was not subject to
copyright, and therefore not the property of the photographer who
owned the camera, because it was not created by a human being. The
U.S. Copyright Office has also stated that it will not register
works produced by nature, animals, or plants, such as murals
painted by elephants, cut marks found in natural stone, or
driftwood shaped by the ocean.
In Canada, we could expect a similar result. To qualify for
copyright protection in Canada, subsection 5(1) of the federal
Copyright Act requires every original literary, dramatic,
musical and artistic work, to have an author who is a natural
person, with the exception of cinematographic works that can be
made by a corporation.
A problem arises with the Internet of Things (IoT) where
machines are becoming increasingly complex and interconnected,
capturing, communicating and exchanging information, often over
wireless networks, with other machines in what is known as
machine-to-machine (M2M) technology. Cisco estimates that 25
billion devices will be connected in the Internet of Things by
2015, and 50 billion by 2020. That is a staggering number –
more than the number of humans on the planet. M2M is being applied
in a variety of industries, from telematics in smart cars, factory
automation, health care, to the running of your household
appliances such as thermostats and refrigerators.
Much of the information being gathered by machines is very
valuable to corporations. As the machines become even more
intelligent, the machines will be operating not just as tools or
sensors collecting data, but also as producers of works with little
or no human intervention. The question arises as to who will own
these machine-generated works? The law in this area is complicated
and is evolving at different rates in various countries. As
mentioned above, in Canada our Copyright Act does not
protect literary or artistic works created by non-humans. As well
in the U.S., the draft Compendium states that "the Office will
not register works produced by a machine or mere mechanical process
that operates randomly or automatically without any creative input
or intervention from a human author." This assumes that all
machines will produce a predictable result. But with artificial
intelligence, and the complexity of the information being
exchanged, as well as limits of predictability in human mobility
and the impact of variables or inputs on other inputs, the
resultant works may not be quite so predictable or mechanical.
As machines are able to synthesize billions of bits of data and
create valuable works that are unable to be created by a human
author, claims as to their ownership may come from the producers of
the underlying programming, the owners of the machines, the
investors in the technology, the network or machine operators, or
the end-user subjects about whom the data is being collected, or
Some countries, such as the UK and New Zealand, are perhaps more
advanced in copyright law by allowing copyright protection for
computer-generated works. In those countries, the author of a
literary, dramatic, musical or artistic work that is
computer-generated is deemed to be the person who makes the
"necessary arrangements" for the creation of the
Perhaps it is time for Canada to follow suit in its copyright
reform, in order to remain a competitive marketplace for IoT and
M2M technology. In the mean time, anyone seeking to protect their
computer-generated works in Canada under Canadian copyright law,
should ensure some creativity is contributed from a human author
and that the other tests for originality and fixation are met.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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