Canada's artificial intelligence minister Evan Solomon is keeping a close watch on pending court action between Canadian news publishers and United States AI organisation OpenAI to determine how the country will plot its future regulatory approach to artificial intelligence.
In a few weeks the Ontario Superior Court is set to hear a jurisdictional challenge from a coalition of Canadian news publishers – including The Canadian Press, Torstar, the Globe and Mail, Postmedia and CBC/Radio-Canada - that argue OpenAI is breaching copyright by scraping large amounts of content from Canadian media.
Canada has no current plans for a standalone copyright bill.
However, how Solomon plans to address copyright within Canada's broader AI regulatory approach will be influenced by the results of this court case and similar ones taking place south of the border.
The coalition of Canadian news publishers is also arguing that AI is profiting from the use of that content without permission or compensatio.
Within their court filing, the coalition claimed that OpenAI had "engaged in ongoing, deliberate and unauthorised misappropriation of [their] valuable news media works."
"Rather than seek to obtain the information legally, OpenAI has elected to brazenly misappropriate the News Media Companies' valuable intellectual property and convert it for its own uses, including commercial uses, without consent or consideration."
However, OpenAI argues that the Copyright Act doesn't apply outside of Canada.
The San Francisco-based company has denied the allegations, and previously said its models are trained on publicly available data, and "grounded in fair use and related international copyright principles."
The company is also challenging the jurisdiction of the Ontario court on the pretext that it is not located in Ontario and does not do business in the province.
The court is scheduled to hold a hearing to consider AI’s request to seal some documents in the case on 30 July.
AI wants the court to seal all documents containing "commercially sensitive" information, including about its corporate organisation and structure, its web crawling and fetching processes and systems, plus its "model training and inference processes, systems, resource allocations and/or cost structures.
"The artificial intelligence industry is highly competitive and developing at a rapid pace," says an affidavit submitted by the company.
"Competitors in this industry are many and range from large, established technology companies such as Google and Amazon, to smaller startups seeking to establish a foothold in the industry. As recognised leaders in the artificial intelligence industry, competitors and potential competitors to the defendants would benefit from having access to confidential information of the defendants."
Meanwhile, numerous lawsuits dealing with AI systems and copyright are also underway in the United States, some dating back to 2023.
In late June, AI companies won victories in two of those cases.
In a case launched by a group of authors, including comedian Sarah Silverman, a judge ruled AI systems' use of published works was fair use and the authors didn't demonstrate that use would result in market dilution.
However, the judge also noted in his summary judgment that in "the grand scheme of things, the consequences of this ruling are limited."
It’s understood that his ruling affects only those specific authors — whose lawyers didn't make the right arguments — and doesn’t mean Meta's use of copyrighted material to train its systems was legal.
Meanwhile, in a separate U.S. case, a judge ruled the use by AI company Anthropic of published books without permission to train its systems was fair use.
However, the judge also ruled Anthropic "had no entitlement to use pirated copies."
According to Jane Ginsburg a professor at Columbia University's law school who studies intellectual property and technology, it is too simplistic to just look at any individual case as a complete win for all AI companies.
"I think both the question of how much weight to give the pirate nature of the sources, and the question of market dilution, are going to be big issues in other cases."
