Photo Credits: (The image above is that which received copyright protection)

Nikita Munjal is an IP Innovation Clinic Fellow, a Student Editor with the Intellectual Property Journal, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

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Creative works, such as artworks, qualify for copyright protection if they are original. It is not surprising that human artists are granted such protections. The labour, skills, and expertise required to create are apparent to anyone who dabbles in the fine arts or enjoys its casual consumption. However, recent developments in India may signal the emergence of a new era of protection extending beyond humans to include artificial intelligence.

In August of 2021, India’s copyright office recognized the RAGHAV Painting App, an artificial intelligence tool, as , Suryast. According to Ankit Sahni, an IP lawyer who owns RAGHAV and is the co-author of Suryast, the copyright office rejected an application listing RAGHAV as the sole author. Competing conceptions of ‘authorship’ and ‘originality’ in the copyright community explain this rejection.

There are two opposing views on authorship and originality regarding copyright protection for AI-assisted or AI-generated works. Some stakeholders believe an author must be a natural person. They assert that copyright law is meant to “,” and extending copyright protection to AI would result in irreparable economic harms since humans would not be able to create at the same pace as AI. These proponents recommend extending copyright only to AI-assisted works, rather than AI-generated works, given that a natural person was involved in the creative process.

Others assert that denying AI-generated works copyright protection would stifle innovation. Given how integral AI has become for businesses and research, any nation that adopts laws favourable to AI could boost its economy by attracting investors and businesses.

Which side of the spectrum is Canada on?

The Copyright Act does not explicitly define the term “author” or whether an AI application can be an author of a work. However, Canadian copyright jurisprudence has previously suggested that an author “must be a natural person who exercises skill and judgment in creating the work.” Moreover, the exercise of skill and judgment required to produce the work “” (at para 16).

In July of 2021, acknowledging AI’s potential for challenging notions of authorship and originality, Innovation, Science and Economic Development Canada (ISED) launched a consultation titled . Invested stakeholders had until September 17, 2021, to provide submissions on what policy measures should be undertaken to ensure that Canada’s copyright framework “continues to achieve its underlying policy objectives and related priorities in the face of the challenges brought about by AI and the Internet of Things.”

Any decision the Canadian government makes regarding the copyright framework will not exist in a vacuum; it will be affected by developments in other jurisdictions. The , , and the are just a few entities that have held consultations on whether intellectual property frameworks are the appropriate venue to address these matters. Indeed, given how closely this decision from India followed the , it seems to be only a matter of time before Canadian copyright laws are amended.

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The Plaintiffs are the artist Amel Chamndy and Galerie NuEdge Fine Arts, which showcases her works. They are claiming $40,000 in damages for copyright and trademark infringement arising from Basanta’s project.

The project, which Basanta describes as an “art factory”, generates images randomly, without human input. Two computer scanners lay on their sides, endlessly scanning each other, and the images are influenced by the lighting conditions in the room as well as a computer mouse that is programmed to randomly change the scanners’ settings. Each image is analyzed using a deep-learning algorithm that was trained on a database of contemporary artworks. When the algorithm identifies a match of 83% or higher, the scanned image is automatically uploaded to Basanta’s and page and named after the lookalike artwork, the percent similarity, and the artist’s name.

Chamandy’s claims that Basanta’s image “85.81%_match: Amel Chamandy ‘Your World Without Paper’, 2009” violates her copyrights in a photographic work as well as the trademark on her name, .

Copyright Infringement

Chamandy claims that although her photograph was not republished by Basanta, an unauthorized copy of her work was necessarily made in the process of selecting scanned images for publication on Basanta’s website.

It’s hard to predict whether the “art factory” will be exempt from copyright infringement under the fair dealing provision because the analysis is highly contextual. provides a closed list of purposes and a non-exhaustive list of six fairness factors. Basanta’s use may qualify as research because the computer-generated works are not sold, and Chamandy’s photograph was used temporarily by a computer but never published. Chamandy may argue that Basanta has a commercial purpose or that his website has lessened demand for her photograph.

Teresa Scassa, a professor of law at the University of Ottawa, points out in her that the outcome of a fair dealing argument is all the more uncertain because the courts have not taken a clear position on data mining.

In data mining, deep-leaning algorithms are trained to recognize patterns in large datasets, and since the tool is becoming prevalent in nearly every industry, it raises questions about the copyright attached to the training data. Chamandy’s photograph may not have been part of Basanta’s training data, but the issues are similar. Does each of the thousands of artists whose art was used by the computer have a claim against Basanta? At the moment, Canada is trying to decide how data-mining will fit into our current regulatory scheme and whether any is required to accommodate it. On one hand, we should protect the interest of rightsholders, but on the other, we cannot discourage the development of artificial intelligence in Canada. A machine-learning algorithm is only as good as the data that it was trained on, so the industry cannot flourish without clear guidelines and reasonable access to data.

Trademark Infringement

Whatever the outcome of Chamandy’s copyright case, she is not likely to succeed in establishing trademark infringement.

Because Basanta’s use of Chamandy’s name is neither as a trademark, nor is it confusing to the consumer, the case hinges on section 22 infringement: depreciation of goodwill. Following the Clairol precedent, a plaintiff seeking to claim section 22 damages does not need to prove the defendant used the mark as a trademark for the purpose of distinguishing wares or services, merely that wares or services were distributed in association with a registered trademark.[1]

Although the title of work could associate goods or services with Chamandy’s trademark, there are no goods or services in this case. In , striking union workers were permitted to use the “Michelin man” logo in promotional materials because, although they were recruiting members and collecting membership fees, the workers were not distributing wares or services for sale. Similarly, Basanta does not offer any of his computer-generated images for sale, nor does it appear that he is receiving any advertising revenue from his website. Chamandy will have the impossible task of proving that Basanta’s use of her trademarked name to bolster his own reputation constitutes advertisement in association with a service.

Written by Gillian Burrell.�� Gillian ��is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] Clairol International Corp. v. Thomas Supply & Equipment Co., [1968] 2 Ex.C.R. 552

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The plaintiffs, the Chapniks, own an architect-designed, multi-million dollar home in the Forest Hill neighbourhood of Toronto. In 2013, the defendants bought a house nearby and promptly began renovations. According to the plaintiffs, the renovated house looked “strikingly similar” to their home and the Chapniks commenced an infringement action.

Architectural works may be protected by copyright as an “artistic work”.[2] However, in asserting infringement claims regarding housing designs, homeowners (Chapniks included), face two significant obstacles. They are required to prove: (1) ownership in the copyright; and (2) that the defendants reproduced a substantial part of the expression.

Ownership

In order to succeed in an infringement action, the plaintiff must be the owner of the copyright. In Canada, the author of the work is the first owner.[3] With respect to architectural works, it is usually the architect who is the first owner of the copyright that subsists in the design of a house.[4] In the case of Hay v Sloan, the court stated, “[f]or copyright purposes, the owner of the architectural work of art is the author of the plans … [n]or does copyright pass to the owner of the building.”[5]

Similarly, in Chancellor v Oasis, the court concluded that it was the architect who was the owner of the copyright and not the owner of the building. The owner’s contribution was “limited to suggesting certain design elements in a general way”, while it was the architectural firm that implemented these suggestions into the design.[6]

Therefore, had the Chapniks’ case gone to trial, unless the architect assigned to them the copyright, it seems unlikely that the Chapniks could have succeeded since they are not the owners.

Reproducing a Substantial Part

Copyright provides the owner with the sole right to reproduce the work in a substantial part.[7] Copying is not necessarily infringement if what has been copied is not a substantial part of the original work.[8]

The Chapniks would likely have established copying. According to the Article, the trim, stonework and the shape of door were similar. Also, the defendants’ contractors allegedly were instructed to copy the architectural work. Finally, there is a causal connection with the original work since the two homes are located only 850 metres apart.[9]

The more difficult aspect of the claim is proving that the defendants reproduced a substantial part of the expression. It is trite law that copyright protects only expression and not ideas. However, when answering the question of whether copying is substantial, the assessor must take a holistic approach having regard to the quality and quantity of what was copied.[10] Excluding unprotectable ideas at the outset prevents this holistic approach.[11]

Upon the facts and photos provided in the Article, it is difficult to come to a firm conclusion on whether a substantial part of the expression was copied. When considering the alleged similarities between the two houses, it seems that some aspects are very common elements of architecture such as the trim colour and stonework. In Rains v Molea, the Court considered whether a painting of a crumpled piece of paper was infringed by a different artist also painting crumpled paper. The court found that although there were many similarities, these were common techniques used by artists and not capable of copyright protection.[12]

Several friends of the Chapniks had allegedly called to inform them of the copycat house. This would have bolstered their claim since when considering substantiality, “the perspective of a lay person in the intended audience for the works at issue is a useful one”.[13] Similarly, even though there are many differences between the houses, differences in the number of rooms and areas may not be enough to prevent judges from concluding that the substance of the architectural work has been copied.[14]

Conclusion

A homeowner asserting copyright in the design of their house as an architectural work will face difficulties due to issues of ownership and substantial reproduction. This appears to be a laudable result since approximately 84% of the Article’s readers believe that copyright should not subsist in the “look of your house”.[15]

William Chalmers��is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] Vjosa Isai, “This Forest Hill couple sued their neighbours for $2.5 million over a house they claim was renovated to look like theirs”, The Toronto Star (October 5, 2017), online: < > [Article].

[2] Copyright Act, RSC 1985, c C-42, s 2 [Copyright Act].

[3] Copyright Act, supra note 1, s 13(1).

[4] David Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (Toronto: Irwin Law Inc., 2011) at 138.

[5] Hay v Sloan (1957), 12 DLR (2d) 397 at para 7.

[6] Chancellor Management Inc. v Oasis Homes Ltd, 2002 ABQB 500 at para 65.

[7] Copyright Act, supra note 1, s 3(1).

[8] Ladbroke (Football), Ltd. v William Hill (Football), Ltd., [1964] 1 All ER 465 at 481,��per��Lord Pearce (HL).

[9] Gondos v Hardy (1982), 38 OR (2d) 555 at para 33 (ONSC).

[10] Cinar Corporation v Robinson, 2013 SCC 73 at para 26 [Cinar].

[11] Cinar, supra note 10 at para 36.

[12] Rains v Molea, 2013 ONSC 5016 at para 30.

[13] Cinar, supra note 10 at para 50.

[14] Kaffka v Mountain Side Developments Ltd. (1982), 62 CPR (2d) 157 at para 15 (BCSC).

[15] Article, supra note 1.

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Bandopadhyay argues that “while originality is widely accepted as one of the fundamental ingredients of a copyrightable work, the determination of originality with respect to photography is even more tenuous than with other copyrightable works, in ways that judicial decisions ignore and legal scholarship has left unexplored.” Photographs are protected under the Protection of Original Design in the , codified in the US under Title 17, Chapter 13. Canada extends protection to photographs as “artistic works” under the section 2 of the .

Connecting the Dots

The connection Bandopadhyay draws between intellectual property and disaster begins with his interest in how law produces meaning in society. He believes that law produces meaning by controlling the means of knowledge production, and therefore, the production of photographic documentation of disasters and catastrophes. He begins by recalling his work on a disaster management project for the past five years that exposed him to how states created and maintained power by using information-management strategies. Dating back to the mid-late 18th centuries, modern states emerged by devising rules, regulations, conditions and institutions that allowed for something called a “disaster” to occur. From this, these states could offer some explanation or interpretation over the disaster, creating the narrative behind each catastrophe. Through this act of control, Bandopadhyay believes, modern states could maintain power even when the state was unable to have actual control over that disaster. This study produced two findings; first, that disaster exists as a real “thing” and second, that disaster exists as an interpretive context over which various groups battle for power. For the purposes of his current project and to further his argument, he focuses on the second finding, supporting a more subjective and contextualized consideration of disaster photography.

It seems that the connection between visualization and disaster then comes down to the human factor of interpretation. Bandopadhyay highlights that if disasters are interpretive creatures, then visualization is very important because, for most of the world, visualization is how we relate to the world. We understand the environment, each other and therefore, ourselves, ultimately shaping what we see and whether we believe what we see. Intellectual property, or copyright specifically, is, therefore, the legal regime that controls the means of which visualization is produced, who gets to own, transfer, manage and monitor the property, and determine who can assign meaning to intellectual property. Bandopadhyay studies disaster photography in terms of copyright law because it helps us understand how a legal regime typically disassociated with catastrophic events can nevertheless have a role in how we perceive ourselves in relation to those catastrophic events.

Familiarly Unfamiliar

As everyday consumers, we deal with disaster photography more than we think. Bandopadhyay goes on to explain a more meaningful way that we associate disaster with imagery in what I would simply describe as a compare/contrast system with multiple photographs. For example, the Hurricane Katrina Memory Bank is a digital storage space, a concept of contrasting the past with the present using photograph that started to become more prevalent after September 11th. This storage space asks people from all over the world to submit photos of disasters that are first archived and then geographically pinpointed using Google Maps. The meaning in this process comes from the contextualization of the disaster photograph, allowing the user to tell and share their stories. This way, disasters become less anonymous and irrelevant, evolving into more of a personal connection between the online world and those originally affected by the disaster.

Originality Underexposed

Bandopadhyay believes that at the heart of all disaster photography is originality. The legal restrictions on using disaster photography begin to tighten because there is a risk of the after-disaster photograph being an original, copyrighted work. In the US, to be copyrightable, the work must pass what Bandopadhyay calls a “mythical bar” of originality that comprises of two components. First, the work must be an independent creation, and second, that the work requires “something more.” For such an important cornerstone of intellectual property protection, one would think the courts would have adopted a more defined understanding of what original means. Nonetheless, originality is a value for which we determine whether something is worthy of being copyrightable, therefore making originality one of the most important values to consider in photography.

Part of is his critique is that there is no consideration of a narrative when formulating that value. In comparison with the copyright laws of the most developed countries, most agree on the determinative factor of originality for copyright protection. In the US, the standard for writing, for example, is very low as any expression of creativity passes this bar. Bandopadhyay’s problem with this is that while there is agreement that originality is in the value of work, there is no direction as to how we determine originality, and for what reasons. In turn, this creates a need for comprehensive criteria to guide our determination of originality in photography.

The answer to his call may exist in some form within criteria first developed in the UK, adopted by the European Court of Justice, and then by Canadian courts. Although the US has not explicitly adopted this set of criteria, US courts use a very similar consideration set comprising of the (i) subject matter of the creation, (ii) originality and rendition, and (iii) originality and timing.

Subject Matter of the Creation

To help explain what “subject matter” means to US courts, Bandopadhyay points to case law, specifically to ., one of the most famous decisions that dealt with copyright and photography. In this 1884 case, Napoleon Sarony visited New York and took a series of photographs, one of which Burrow-Giles printed and sold 85,000 contrasted. Burrow-Giles Lithographic argued that although the Copyright Act extended to authors and writers, the provisions did not extend to protecting photographs. In this time, photographs were generally not regarded as artistic work, but instead, simple mechanical representations of reality. However, the Supreme Court disagreed with Burrow-Giles’ assessment of photography as non-art, for two reasons. First, the Court said the photographs are original works of art by drawing analogies, not to writing but to paintings. Second, the Court said the photographs represented an original scene because it did not exist before Sarony created the scene and it would not exist but-for Sarony’s creative input. For these reasons, Sarony was found to own the subject matter of the photograph, and found Burrow-Giles’ reproductions to be in violation of Sarony’s copyright.

Notwithstanding this decision, Bandopadhyay notes the problems associated with analogizing photographs to paintings. First, photography is not an art of arrangement in the same way painting is because, in a painting, the forms only need to relate to each other. Bandopadhyay claims that if he knew nothing of the world, he could see a painting and it could still exist and therefore function as a painting. He says he could then close his eyes, draw lines on paper and his creation could still count as a painting. On the other hand, in a photograph, not only do the forms of arrangement relate to each other, but they also relate to things outside of the photograph, in the real world. Bandopadhyay further claims that if he did not know what a tree looked like, then he saw a picture of a tree, the subject matter would not make sense to him. This is because of the reference to forms, in this example, a tree, are out in the real world, therefore creating a need for a precluding reference before the subject matter can be interpreted.

Photographs also possess a transparent element; we look at a photograph and tend to believe what we see. We also interpret photographs in different ways, admitting the image to mean different things to different people. This is where Bandopadhyay believes disaster photography “as a lens” is useful because this type of photography amplifies the typical reaction to the information and emotion we expect to take from a traditional photograph, making disaster photography automatically newsworthy. When we look at disaster photography, we believe the subject matter as truth. Disaster photography is then relied upon to serve as memories to those affected, and as a medium to invoke emotion from those who are not.

Contribution

To help explain contributory originality, Bandopadhyay gives the example of American photographer, , and her famed photograph. At the time, Lange was touring the United States in the mid-late 1930s, taking photographs of unemployed and poverty-stricken families to send to Congress, pressuring the government to send assistance to the displaced and migrant workers of America. She found this family in a small town and without much conversation or any questions, she took five exposures of the mother and her two children. The original photograph was taken at a very close range yet the woman was looking away with her children hovering towards her, as if the mother knew what the photograph was for. The purpose of the photograph was never verbally communicated by either Lange or the mother, but Lange claims the woman was an actual collaborator in the production of the photograph. In later years, the daughter of the mother agreed. Although the mother was not told how to pose, she knew what the photograph was for and knew how she was to look if the photograph was going to send the help she desperately needed. In this collaborative understanding, Bandopadhyay believes the benefits of viewing photography as a web of relationships, instead of a hierarchical structure, has shown to have great benefits for photography.

Originality as Rendition

’s famed explains how originality can be found in rendition. Bandopadhyay establishes that the mountain in the image is not real nature but instead, how Ansel wanted the world to perceive nature. Adam’s pre-visualized idea of a hyper-real nature was executed by his own form of editing, or pre-visualizing images, to see in his mind what he wanted to exist in the real world, then taking steps to make that a reality in his photographs. This photograph became synonymous with the natural wilderness and was a main symbol of the 1970s environmental movement. Bandopadhyay argues that the photograph became so well known because it established a reality that people were convinced by. People felt this was pure nature, contrasted by the grime and grain of the industrialization that was taking place in the United States at the time. Ansel spent months revisiting the same location, studying topography, weather patterns, and even exposure levels. Simply, the photograph was completely manufactured before capturing the image. This way, Bandopadhyay thinks, to say this is a rendition, and therefore something that is not a powerful creation of reality, any different than the creation of subject matter, is absurd because Adams convinced hundreds of thousands of people to put their lives on the line protesting; a reality indeed created by rendition.

Originality and Timing

Of the three factors, Bandopadhyay believes timing is the least strong claim to prove a photograph is original. The US Court explains this factor with a rather barebones justification using ’s ��to show that originality in timing creates no rights over the subject matter. The Court held that Mengelsen did not make the bear eat the fish, for if he stood there long enough and took enough photographs, he would have captured that same image. However, this is only one, a rather narrow, understanding of how timing can be determined to be original. Bandopadhyay gives four examples of alternative understandings of original timing. First, , the father of real-time photography, would wait until the moment of life would happen, or the “moment of equilibrium”, when everything would “click”, and then he would take the photo. Second, Cartier-Bresson, also waited for a moment, but more specifically, “a decisive moment when, if memory serves, the organization of forms and significance of events, coincides in the mind of the photographer.” Until these factors all came together, Cartier-Bresson would not take the photograph. Third, critic ’s perspective emphasizes a temporal element, “the choice is not between photography X and Y, but the photograph at X moment and Y moment,” incorporating context and environmental change into his consideration. In a more personalized perspective, explains “through an event has come to mean…something worth photographing, it is still the ideology, that determines what constitutes an event,” or in other words, photographers take on a gate-keeping role in determining what and why something is worthy of being photographed.

These alternate understandings allow for other factors such as culture to determine timing. Based on who you are, where you grew up, and what you think is important, non-numerical timing will shape if and when you decide to take a picture, making culture and personalized factors critical when discussing the concept of originality in timing. Bandopadhyay claims that entire disasters can pass without notice if people are not prompted to photograph it. He believes that although there are other ways to offer narratives on how originality can occur, when we try to find originality purely by looking at the subject matter itself, these important narratives fail to be considered when determining holistic originality. Excluding photography skills, social justice, personal and societal ideology, culture and other normative factors that might lead to a coherent narrative and justification for why something was photographed eventually become lost and irrelevant in US courts. Thus, Bandopadhyay rejects the notion that originality in timing, unless defined as Megelsen’s Catch of the Day, click-it-or-you-miss-it photography, is incapable of meaningfully contributing to originality.

Once we broaden our understanding of timing, it then becomes one of the most important features of a photograph’s originality. Bandopadhyay says that timing is capable of affecting us by evoking absence and a state of change. If we look at a photograph of disaster debris, it has little effect. But when we compare it with a contrasting photograph in a before-after comparison, we can then see the state of change, and both individual photos are given unique feeling and effect.

Bandopadhyay reiterates that timing makes contributions to the photograph and the only way to see that is when you allow originality to have a narrative. We have to understand that someone has put something in the photograph for a reason and we need to study why it was put there, otherwise, we risk fetishizing the photograph and the photographer.

Same Picture, Different Frame

In all, Bandopadhyay reiterates that post-damage disaster photographs do not have narrative when they stand alone. Otherwise, they are simply surveillance photographs with little purpose. We can rescue the unpurposive photographs by adding a narrative of some sort with a comparison that shows a state of change. The issue highlighted here is that many of the post-damage photographs are copyrighted, in effect, legally sheltering these images from adopting a fuller meaning and purpose.�� Bandopadhyay is . Ultimately, Bandopadhyay’s findings suggest the US Courts are missing the point of originality when labor, skill, judgment, attention and detail are left out of the conversation when making a determination of originality.

Robel Sahlu is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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