Vanguard Magazine

38 OCTOBER/NOVEMBER 2020 www.vanguardcanada.com teChNOLOgy legal, social and other consequences of the final product. That requires the human hand, and with the application of the hu- man hand comes responsibility, account- ability and "ownership". Yet another issue related to AI and copy- right is the use of copyrighted material to "train" automated systems. For example, if a machine is to be trained to write a ro- mance novel, it must be fed large numbers of romance novel models in order to be able to understand the basic premise and structure. (You know…. Boy meets Girl 1; Girl 2 appears; Girl 2 tries to steal Boy's heart; Heartbreak ensues; Boy comes to his senses; Girl 1 triumphant; Love Con- quers All; Cue the Music). I am not sure how sophisticated an algorithm you need to create a good romance novel, but suffice to say that at least some copyrighted mate- rial would have to be fed into the process. This raises issues not just over the appro- priate use of copyrighted material, but, as blogger and copyright lawyer Neil Turke- witz has pointed out, broader ethical issues as to whether it is acceptable to ingest an- other's work without consent just because it is "efficient" to do so. Most countries already have fair dealing exceptions that allow data mining within set limits, or in the case of the US, there is a fair use struc- ture that can be used to adjudicate data mining acceptability within established pa- rameters. These rules have worked pretty well to date, and there appears to be no compelling need to broaden them. In the final analysis, when dealing with how copyright applies to AI and AI-gener- ated works, it is important to stick to basic principles. Copyright has existed formally in western jurisprudence for over three hundred years, since the English Statute of Anne in 1709, and indeed there are many examples of copyright pre-existing this legislation. Copyright law has always been able to adapt to technological change while maintaining the basic principle of protection for the author so that she/he can control the dissemination and use of the work plus earn a fair return for effort. Even in the case of machine and AI-gener- ated works, there is always a human hand behind the creation. It may take some in- genuity at times to determine which hu- man hand is predominant, but surely that is not beyond the ability of our learned jurists and legislators. The key is to stick to basic principles while letting the law adapt rather than trying to create new regula- tions to address AI issues. We will have to see where the USPTO review comes out. In the case of Canada, the Parliamentary Committee came up with a recommendation of sorts, although it was remarkably non-prescriptive. The Committee quoted testimony arguing that a work created exclusively by AI, without any human intervention, should not re- ceive copyright protection but balanced this with other testimony to the effect that human skill and judgement are almost always required to direct AI systems. In leading to its recommendation, the Com- mittee stated that; "Parliament should enact legislation to help Canada's promising future in artificial intelligence become reality. Our own leg- islation, perhaps informed by approaches taken in other jurisdictions, can be adapted to distinguish works made by humans with the help of AI-software from works cre- ated by AI without human intervention. The Committee therefore recommends: That the Government of Canada con- sider amending the Copyright Act or in- troducing other legislation to provide clarity around the ownership of a comput- er-generated work." Exactly how the government would pro- vide that clarity and what factors should be taken into account in so doing was left for another day. gorithm model. In other words, there was sufficient human authorship—and thus there was copyright, and infringement of copyright. It is worth noting that in addi- tion to human attribution, the work must also be sufficiently original and not just a list or compilation of facts. There is a further infringement scenario to consider. What if a computer-generated program is itself responsible for the infringe- ment? After all, artificially created content is based on being fed examples of original content so that the algorithm can "learn" the patterns that go into content creation. Under this scenario, if there is no human creator, who is liable for the infringement? This demonstrates why there needs to be human attribution in the process. Along with human interaction comes eth- ics—judging what is "right" or "wrong", whether it is a judgement regarding in- fringement of copyright or some other aspect of the application of technology. I would submit that an algorithm is incapable of making true ethical judgements. There- fore, it is essential to retain human respon- sibility for the output of Artificial Intelli- gence, and its uses, even if the human touch is relatively tangential. AI cannot "sign off" a work, taking into account all the ethical,

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