Understanding Trademarks & Copyright in the Age of Machine Authorship By: Christopher Heer and Michelle Huong


Autonomous Artificial Intelligence (AI) is no longer science fiction. Unlike its predecessors, which generate outputs from pre-defined input data, autonomous AI can combine input data to create unique solutions that are not the direct result of human intervention. Autonomous AI systems have been credited for a myriad of works, including unique artwork and musical compositions. The rise of autonomous AI has implications for intellectual property law and may impact the availability of protection for certain works, and the enforcement of copyright and trademark rights, including pre-litigation strategies, such as sending cease and desist letters, and litigation defence strategies.

The interplay between AI and Copyright

Copyright protects original literary, dramatic, musical and artistic works. Copyright subsists in a work that is of copyrightable subject matter, is fixed and is original (i.e., the author must have exercised skill and judgment in creating the work). An owner of a Canadian copyright has the sole legal right to produce, reproduce, publish or perform the subject work for a period of the life of the author plus seventy years, barring the application of certain limited exceptions. 

Autonomous AI has transformed copyright law. For example, the generative art movement has shown that autonomous AI has the ability to write unique poems and create novel paintings. This raises questions about authorship: Who is the author that holds the copyright in these works? Can an AI as a machine be an author under the Copyright Act? And how would the AI enforce or assign its copyright?

While the term “author” is not defined in the Copyright Act, an author is generally regarded as a natural person who exercised skill and judgment in creating the work. Our understanding of who can be an author has, however, broadened over time. In December 2021, the Canadian Intellectual Property Office (CIPO) granted a copyright registration for an artistic work titled Suryast. Suryast has two listed co-authors, one of which is an AI application named RAGHAV Artificial Intelligence Painting App. In other words, it would appear that an AI can be, at the very least, a co-author of a copyrightable work.

The interplay between AI and Trademarks

A trademark may be one or a combination of letters, words, sounds or designs that distinguishes one party’s goods and/or services from another party’s goods and/or services in the marketplace. The owner of a Canadian trademark has the exclusive right to use the mark in association with the registered goods and/or services for a period of ten years and, on payment of regular renewal fees, can maintain this right for as long as desirable. 

 

The owner of a Canadian trademark is protected against another party selling, distributing or advertising goods or services associated with a trademark or trade name confusingly similar to the owner’s own trademark. Several factors are used to determine if a mark is confusing with another mark, namely, the inherent distinctiveness of the trademarks, the extent to which the trademarks have become known, the length of time the trademarks have been in use, the nature of the goods or services or business, the nature of the trade, and the degree of resemblance between the trademarks, including in appearance or sound or in the ideas suggested by them. In determining if a mark is confusing, the relevant perspective is whether the average hurried consumer having imperfect recollection would consider that the goods and/or services associated with one trademark and the goods and/or services associated with the other mark are manufactured, sold, leased or hired by the same person. 

AI has changed the retail landscape and, as a result, has implications for trademarks. Consumers are increasingly relying on AI-powered systems such as Amazon Alexa and Google Home, and AI shopping assistants like Mona, to make purchases online. These AI systems use data from past purchases made by the consumer to recommend suitable products from different brands. In other words, AI-mediated purchases are on the rise. How then should confusion be assessed in a scenario involving an AI-mediated purchase? Should the confusion test remain unchanged and be based on the perception of the average consumer? Changes to the test for confusion stand to impact whether trademark infringement is deemed to have occurred or not. Further, the use of AI may attract trademark infringement. A recent case in the UK found Amazon, the respondent, infringed on the trademark LUSH, owned by Lush Ltd, the claimant. Since Amazon had bid on the keyword “lush” to trigger sponsored advertisements, whenever a user searches the word “lush”, Amazon sponsored advertisements would pop up to direct the user to Amazon’s website even though none of the claimant’s products were sold on Amazon. Interestingly, it was Amazon’s AI software that collected consumer behaviour data and, subsequently, determined which keywords to bid on and generated the content of the sponsored advertisements.

Clearly, the changing AI landscape is raising new questions and prompting new answers to old questions in the areas of copyright and trademark law. If you would like assistance navigating those changes, consider consulting an intellectual property lawyer.

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