First, let's be clear, AI is a misnomer. AI software is not "intelligent". That is an anthropomorphism. Humans are intelligent. In fact, humans possess native intelligence, “NI”, which can be pitted against, but preferably works hand-in-hand with technology such as AI on a creative and collaborative basis.

Second, AI currently does not innovate. Humans innovate with NI. AI imitates. It does this by taking existing works (sometimes multiple works), altering them and then producing a “new” work.

Third, keep in mind that AI is not trained in the human sense, that is, in the sense that we understand with respect to human natural intelligence. It mines data.

Fourth, remember “GIGO”, which is short for "garbage in/garbage out". That is, AI is only as good as the content it is "trained" upon, or more accurately, the data which it mines.

Fifth, AI programs use highly sophisticated algorithms that can re-create copyright protected works at lightning speed. Therein lies the imminent and very real threat to a number of professions in the music business, most obviously, those who provide background music for advertising, film and videos, video game music, voiceovers, etc.

Using copyright protected catalogues to train AI raises many copyright law issues, including but not limited to:

a) Whether data mining of copyright protected works for AI purposes is fair dealing under Canadian copyright law, or fair use under the United States Copyright Act.

b) Did the AI software companies obtain access to these catalogues legally?

c) Do the AI software companies breach their terms of use by using it to “train” their AI?

d) Were creators compensated at all for this training and subsequent usage?

By way of example, the tech conglomerate Meta, under the instructions of their Chairman and CEO Mark Zuckerberg, has been accused of training Meta’s AI software from pirated book catalogues. According to court documents in a class action lawsuit against Meta, the plaintiffs claim copyright infringement of their book catalogues. Meta employees say the books were torrented and pirated to train its AI software.[1]

AI also raises many other diverse legal issues in addition to copyright law, including personality rights issues, that is, the rights that one has to exploit personal attributes such as your name and likeness; trademarks; rights of privacy; unfair competition; deceptive trade practices and passing off. These laws cut across provincial, state and federal laws.

The legal response, so far, is a three pronged, “3L”, approach. This includes legislation, litigation and licensing:

1. Litigation:

Courts throughout the world are grappling with the legal issues raised by AI. They are trying to determine and provide guidance concerning the legal issues raised by AI. For example, with respect to AI and copyright laws: Is it fair dealing for purposes of Canadian copyright law or fair use for purposes of the US Copyright Act to allow AI to data mine copyright protected works for the purpose of defining and re-defining the AI algorithms and creating new works?

So far, the courts generally and specifically in the U.S., have determined that for a work to acquire copyright, there must be a human author. One cannot obtain copyright in a work created solely by AI.[2]

Also, according to the US Copyright Office, a human author must be "principally responsible" in the creation of a work for it to obtain copyright. AI prompts, that is, providing suggestions or directions, without influencing how those directions are to be executed, are not enough to entitle one to obtain copyright in a work solely created by AI.[3]

However, one can obtain copyright to a work created with the assistance of AI, but only if there is a sufficient degree of human authorship.[4] Courts in China have also determined that works created with the assistance of AI can be registered for and protected by copyright.[5]

At this time here is no definitive decision in Canadian law or from Canadian courts regarding this issue.

2. Legislation:

There have been numerous efforts globally to pass legislation in response to AI.

a) European Union

In the European Union, the EU AI Act has been passed into law. This is the first legislation dealing with AI.[6]

Among other things, the EU AI Act sets guidelines and penalties re: AI uses, including obligations of disclosure of AI use.

b) United States

The assessment of the US Copyright Office is that the current U.S. copyright laws are adequate to deal with copyright issues raised by AI.

Note, however, the State of Tennessee enacted The ELVIS Act to prevent "deep fakes", which are sound alike recordings that deceive the public that it is the original artist that is performing on a recording when they are not; it is actually an AI simulation of the artist. This statute aims to prevent the unauthorized use of a person’s likeness, voice or image and provide broad protection against AI misuse.[7]

Bear in mind sound alike versions, if not licensed or controlled, have the ability to mislead consumers and compete with the original copyright protected works in the marketplace.

Some social media companies, such as Meta, have set in place certain obligations to disclose AI use to ensure a balance between AI and NI. Meta introduced a policy in 2024 to require that posts label their content as AI generated to ensure that people viewing the content knew that AI software was being utilized.[8]

c) United Kingdom

Under The Copyright, Designs and Patents Act, 1988, S9 (3) re: a literary, dramatic, musical or artistic work which is computer-generated, the author is the person by whom the arrangements necessary for the creation of it are undertaken. Numerous debates re: copyright and AI have taken place. However, to date, UK courts have not yet determined to what extent AI generated works will be entitled to copyright protection.

d) Canada

Although the proposed Artificial Intelligence and Data Act made it to a second reading, it was not passed before the April 2025 federal election in Canada.[9]

Currently, there are no Copyright Act revisions, or other specific federal legislation pending, current law or definitive legal assessments concerning AI and its legal impact in Canada.

Note: the cases and decisions referred above, although they may be illustrative, perhaps even persuasive, they are certainly not binding on courts of other jurisdictions, including the courts of Canada, which are autonomous and independent.

3. Licensing:

The licensing response seeks to be pro-active and license certain rights for the purposes of AI. The aim is to monetize protected proprietorial content through private contract. That way, one can either choose to contract in or contract out of having AI utilize your work.

In Japan, for example, the Japan Academic Association for Copyright Clearance and Rights Direct announced the availability of AI re-use rights for digital copyright licensing for companies with headquarters or an office in Japan.[10] The intent is comply with copyright laws, avoid costly litigation and ensure that the use of AI does not create legal and business risks.

Conclusion:

AI's impact is global. Each country has its own laws, including copyright laws, that are interpreted by the applicable courts of each country. There will be no uniform legal response or solution.

Based on my experience, as technology creates crises and opportunities, it can also provide solutions.

As with many technological changes we have experienced in the past, AI can and will assist humankind and human creativity.

It is clear is that the use of AI can reduce costs and create efficiencies that would not otherwise be possible. This is another reason why it is here to stay and we need to adapt to that reality. AI is being used to assist many people in their jobs right now and will continue to do so into the future. However, it also has the very real ability to replace real people doing real jobs, so AI has and will continue to have a far-reaching socio-economic and legal impact, not just with respect to copyright laws, but concerning many various human endeavours, including the medical field and the legal field.

The "genie is out of the bottle". AI is here to stay. So we must adapt. The key is to find the legal balance between protecting and incentivizing creators through monetization of the results of their labour and society’s ability to continue to benefit from the use of AI.

End Note:

This article outlines the legal trends and assessments I’ve observed, so far, based on my research concerning AI as of May 12, 2025. The legal issues related to AI are greatly expanding day-to-day and will continue to evolve.

This article was written without AI assistance, only NI was used.

Editorial assistance: Jesse Sanderson Esq., JD, Attorney at Law, (Massachusetts/New York).

[1] See https://www.tomshardware.com/tech-industry/artificial-intelligence/meta-staff-torrented-nearly-82tb-of-pirated-books-for-ai-training-court-records-reveal-copyright-violations.

[2] See the US case Thaler v Perlmutter https://media.cadc.uscourts.gov/opinions/docs/2025/03/23-5233.pdf.

[3] See https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf.

[4] See the case involving a work entitled “A Single Piece of American Cheese”: https://www.ddg.fr/actualite/artificial-intelligence-and-copyright-the-invoke-decision-and-a-single-piece-of-american-cheese-a-landmark-decision-by-the-u-s-copyright-office.

[5] See https://globallitigationnews.bakermckenzie.com/2024/05/08/china-a-landmark-court-ruling-on-copyright-protection-for-ai-generated-works/.

[6] See https://www.europarl.europa.eu/topics/en/article/20230601STO93804/eu-ai-act-first-regulation-on- artificial-intelligence.

[7] See https://www.jdsupra.com/legalnews/the-elvis-act-tennessee-shakes-up-its-4989179/.

[8] See https://about.fb.com/news/2024/04/metas-approach-to-labeling-ai-generated-content-and-manipulated-media/.

[9] See https://www.whitecase.com/insight-our-thinking/ai-watch-global-regulatory-tracker-canada.

[10] See https://www.copyright.com/media-press-releases/japan-academic-association-for-copyright-clearance-and-rightsdirect-japan-announce-the-availability-of-ai-re-use-rights-for-digital-copyright-license/.