It depends on the degree of human involvement to generate the Output.
Copyright: Was human skill and judgment used to generate the Output? In Canada, copyright applies to a work where the author was, at the date of the creation of the work, a citizen or subject of, or a person ordinarily resident in, Canada or some other treaty country.
Copyright protection for ‘data’ will depend on the nature of the data and how the data was created. Compilations of data are eligible for copyright so long as skill and judgment was employed in the selection or arrangement of the data. Copyright can protect computer-generated data provided that skill and judgment was used to generate the data.
In Canada, AI-generated works may be eligible for copyright protection. Current requirements for copyright protection include originality, fixation and the exercise of skill and judgment. These requirements can be understood to mean that content created by generative AI is not protected unless an original work is created with the sufficient addition of human skill and judgment.
For example, in December 2021, the Canadian Intellectual Property Office (CIPO) registered a copyright for a painting entitled ‘Suryast,’ with two co-authors: Mr. Ankit Sahni and RAGHAV Artificial Intelligence Painting App, making ‘Suryast’ the first Canadian copyright with an AI author.
However, in July 2024 Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) challenged the validity of this copyright registration. CIPPIC makes two main arguments against Surayast’s copyright registration: (1) Surayast does not meet the originality requirement for copyright protection; and (2) an AI system cannot be considered an ‘author’ under the Copyright Act. As at the date of this publication, this matter is expected to go to hearing in the latter half of 2025 (https://www.cippic.ca/articles/cippic-v-sahni-ai-s-role-in-copyright-law).
As another example, in April 2023, CIPO granted a copyright registration for an image and a poem entitled ‘Sunset Serenity, being an image and poem about sunset at an Ontario lake created entirely by AI programs DALL-E2 (Image) and ChatGPT (Poem) on the basis of prompts demonstrating minimal skill and judgment on the part of the human claiming copyright.’ The copyright registration only lists a human as an author and owner, despite the title referring to a generative AI system.
As at the date of this publication it remains unclear if CIPO would register copyright based on an application that has no human author listed. While there is no explicit definition of the term “author,” Canadian case law has traditionally held that an author ‘must be a natural person’ ‘who exercises skill and judgment’ in creating the work, but listing a human co-author for an AI-created work seems to meet that requirement. Further, the above-noted copyright registrations may be later challenged in court.
Patents: In Canada, the Patent Act does not define ‘inventor,’ much like the Copyright Act does not define ‘author.’
Recently, Dr. Stephen Thaler filed patent applications in various patent offices worldwide for a patent with the sole inventor listed as ‘Device for Autonomous Bootstrapping of Unified Sentience,’ or DABUS, an AI machine created by Dr. Thaler and designed to invent. In December 2021, CIPO issued a non-compliance notice for the DABUS patent application because ‘the inventor is a machine and it does not appear possible for a machine to have rights under Canadian law or to transfer those rights to a human.’
However, the CIPO notice also stated that the applicant, Dr. Thaler, may attempt to comply by submitting a statement on behalf of the AI machine identifying himself as the legal representative of the machine.
In July 2022, the applicant filed a letter submitting that the applicant is entitled to file a patent application through his ownership of DABUS. The CIPO examination of the DABUS patent application is still ongoing at the date of this publication. This case raises a question of whether this patent application would have overcome this initial threshold determination if Dr. Thaler had been named as a co-inventor.
In July 2022, the applicant filed submissions declaring that they are entitled to file a patent application based on their ownership of DABUS. In November 2024, the Patent Appeal Board’s preliminary review refused the DABUS patent application on the grounds that the term ‘inventor’ as used in the Patent Act and Patent Rules is limited to a natural person or persons and does not include an artificial intelligence system. The Patent Appeal Board held an oral hearing on February 2025. As at the date of this publication, the Commissioner’s decision has not yet been published (https://www.ic.gc.ca/opic-cipo/cpd/eng/patent/3137161/summary.html – see Application 3137161).