Copyright Infringement in a Smart, Connected World

From Amazon’s personal assistant, Alexa, to Kolibree’s smart toothbrush, to the Nest learning Thermostat, the march toward an Internet of Things (IoT) shows no signs of waning. By 2020, it is estimated that there will be 50 billion IoT devices installed around the world. In addition, IoT devices are becoming increasingly interconnected—more and more, these devices are capturing and sharing information, in what is known as machine-to-machine technology.

The rapid pace at which IoT is evolving has, understandably, generated a great deal of excitement—beyond the excitement, however, lies a plethora of legal issues. Prominent among these issues are concerns related to copyright ownership and intellectual property infringement. For example, as IoT devices become increasingly “smart,” they will begin to operate not just as data collectors, but also as producers of works. This begs the question: who will own these machine-generated works? Furthermore, as IoT devices become increasingly autonomous and interconnected, the possibility that they may operate in a manner that infringes third-party copyright is raised. In view of this, it is worth asking: can an IoT device be held responsible for copyright infringement and, if not, who can?

Who owns copyrights in machine-generated works?

The law in this area is complex and is developing at different rates across the world. In Canada, the question remains open—however, our federal Copyright Act does not appear to protect works created by non-humans (with the exception of cinematographic works that can be made by a corporation). Subsection 5(1) of Canada’s Copyright Act establishes “conditions for subsistence of copyright,” which strongly suggest that every work is required to have an author who is a natural person (again, with the exception of cinematographic works).

In the United States, the Copyright Office has issued a specific set of regulations requiring that copyright holders be human beings. Works produced by a machine are not, according to these regulations, eligible to be covered by copyright without there being creative involvement from a human being.

In some parts of the world, copyright law is perhaps more advanced in allowing for the protection of computer-generated works. In the UK and New Zealand, for example, the author of a work that is computer-generated is deemed to be the person who makes the “necessary arrangements” for the creation of the work.

Can a machine be held responsible for copyright infringement and, if not, who can?

The law in this area is uncertain—as is often the case, technology appears to have developed faster than policy. In Canada, section 27 of our Copyright Act refers to a “person” infringing copyright. On a strict reading of these provisions, there could be no infringement by an autonomous machine. Moreover, if there was no primary act of infringement—because the act was undertaken by an autonomous machine—questions of secondary infringement would not arise.

Pursuant to sections 3 and 27 of Canada’s Copyright Act, a person also infringes copyright when they “authorize” a restricted act. It remains to be determined whether a person can authorize a non-human entity in the relevant sense. As technology continues to advance, operators and developers of IoT devices may risk liability in this regard. If an operator of a device uses it in such a way that the copying of a third-party work is inevitable, there could be an argument that the operator has authorized the infringement. There is also a risk for developers that a court could look behind the operator to the design of the system.

A recently filed lawsuit has brought to light the uncertainty in Canadian law on this issue. The defendant in this lawsuit, Adam Basanta, is an artist who created a computer system that generates abstract pictures. An AI program compares these computer-generated pictures to a database of human-made art; if a computer-generated picture is found to be similar to human-made artwork, it is posted online, along with the percentage of similarity. Artist Amel Chamandy claims that Basanta violated her copyright in an artwork she created when Basanta’s machine setup generated a picture with a high percentage of similarity to her artwork.

Jeremy de Beer, an intellectual property law professor at the University of Ottawa, maintains that issues about copyright will go far beyond this case, as society moves into an era of advanced technology. Information law professor Teresa Scassa believes this case is the “tip of the iceberg” for this type of litigation.

Outside of Canada, many intellectual property regimes are similarly failing to keep pace with thinking machines. Although new technology running afoul of existing law is nothing new, we are approaching an era of unprecedented innovation—what has been coined a “Fourth Industrial Revolution.” This shift will disrupt established intellectual property regimes and will bring consequences that should concern policy makers worldwide.

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