Copyright and Generative AI

Generative AI (GenAI) and related technologies are subject to existing Canadian laws and regulations such as intellectual property, copyright, and privacy laws. However, the emergence of GenAI has surfaced new questions that are not adequately addressed by current legislation or case law, such that the legal status of GenAI in Canada is currently unsettled. GenAI is evolving quickly and its impact on teaching, learning and research is significant, posing both opportunities and challenges.

The legal questions arising from the use of GenAI include:

• Is it legal to use copyrighted works to train AI?
  The question as to the lawfulness of the use of copyright-protected content in the training of AI models is currently being contested in many jurisdictions, both in the courts and by policymakers. There are active lawsuits in Canada and the US that allege GenAI tools infringe copyright, and it remains unclear if and to what extent copyright exceptions such as fair dealing might apply in the context of AI model development.
• Do the outputs of generative AI infringe copyright?
  Content produced by GenAI tools may in some cases reproduce significant portions of copyrighted source materials, leading to claims that the output infringes copyright. This question is also the subject of some current lawsuits. As a result, some GenAI tools have been modified to avoid substantial verbatim reproduction of works used as source materials.
• Who, if anyone, owns copyright in the content generated by AI?
  Traditionally, the law has stated that an author must be human in order for a work to be eligible for copyright protection. It is unclear what level of human input might be required in order for an AI-generated work to be copyrightable.

The Government of Canada has been involved in public consultations on copyright and GenAI since 2021, and published Consultation on Copyright in the Age of Generative Artificial Intelligence in June 2024 with a goal of continuing fact-finding work to inform copyright policy. Until government policy, legislation and case law can provide clearer guidance, the following approaches are recommended in order to limit risk when using GenAI and related technologies.

Important considerations when using GenAI tools:

1. Regularly consult the terms of service for the AI tool you are using, so you understand what is permitted and prohibited.
2. Be mindful of the content you are putting into GenAI tools. The content you enter may become part of the tool’s training set or be used for other purposes that you may not be aware of.
   1. Never input confidential, sensitive, or personal information.
   2. Avoid uploading copyrighted content that you do not have permission to use. It may be possible to input small portions of copyrighted work using the Copyright Act’s fair dealing exception, but this has not yet been settled in law.
   3. Public domain and some openly-licensed content can be uploaded to GenAI. Most Creative Commons licensed works can be used with GenAI, except for those with No Derivatives licenses. Consult the CC license terms for the content you wish to use to verify what kind of use is permitted.
   4. In general, it is not permissible to copy content from library e-resources into GenAI. For example, pasting the text of a journal article into a GenAI tool in order to have it summarized is not permitted by most of the library’s licenses with content providers.
3. Avoid using prompts that rely on a single source, or are likely to reproduce verbatim content, e.g. requesting a copy of the first chapter of a specific book. Also avoid prompts that require reproduction of content “in the style of” a specific author or artist. Outputs created using these kinds of prompts have a greater risk of infringing copyright.
4. Be transparent and explicit about the ways in which you have used GenAI in the creation of your work.
   1. Keep records of the prompts you use and any content you uploaded when generating your content.
   2. Learn how to cite the use of GenAI content in your work. Review attribution guidelines according to the style guide you are using.
   3. Check the policies of your instructor and/or academic department, or, if you are publishing your work, the publisher’s policy, regarding the use of AI tools to create content and the requirements for disclosing your use.
5. Be aware that while you can use these tools to revise, enhance or create content, you may not own the copyright in the content you produce.
   1. Whether you have any copyright ownership in the output is still an unsettled legal question, and may depend on the extent to which you contributed your original content to the final product, as well as the proportion of copyrighted source material in the AI generated output. As GenAI tools do not always disclose the source materials they use in content generation, it can be difficult to know the copyright status of the output.
   2. If you are uncertain regarding your copyright ownership, you will not be able to claim “all rights reserved” or to assign a Creative Commons license to your work, as these are things only the copyright owner of a work is authorized to do.

There remains significant legal uncertainty with the use of GenAI and copyright. This is an evolving area, and the above guidance may change as new policies, regulations, and case law become settled.

Content on this page was adapted from:

1. Generative AI tools and Copyright Considerations from the University of Toronto Libraries, licensed under a CC BY 4.0 license.
2. Copyright at Waterloo: Generative artificial intelligence from the University of Waterloo, with permission from Lauren Byl.

Get assistance

If you would like assistance determining whether you can use content in GenAI tools, please contact the library.