AI Litigation for the Canadian Nation

(from Kubrick’s visionary 1968 film, 2001: A Space Odyssey. AI is NOT a new concept.)

 There is a massive lawsuit underway against a number of companies comprising “OpenAI” (i.e. ChatGPT) for “misappropriation” of major Canadian news media material. It also alleges breach of ss. 3, 27 and 41 of the Copyright Act with apparently very few material facts or particulars about how these provisions were breached. “Misappropriation” is not a concept recognized by Canadian copyright law, as I explain below. Section 3 of the Copyright Act is the centrepiece of Canada’s complex copyright legislation and contains many separate and distinct provisions, none of which are identified in the Statement of Claim. It also alleges prohibited TPM circumvention, breaching terms of use, and unjust enrichment.

Michael Geist was quick off the mark with a useful analysis of some of the many difficulties that the plaintiffs face in this lawsuit, its international context, and his prediction that this is mainly about getting a settlement and a licensing deal. He followed up with a podcast with Prof. Robert Diab from Thompson Rivers University, who has also written about this case.

Actually, the case for the plaintiffs could be even weaker and more problematic than Michael or Prof. Diab suggest.

The Plaintiffs are “Canada’s leading media companies and news publishers (collectively, the “News Media Companies”)” including CBC and Canadian Press.

It was brought by the same very respected law firm that vigorously defended the concept of fair dealing in the Supreme Court of Canada in the York University case on behalf of Prof. Ariel Katz, as an intervener. Here’s the law firm’s press release.

This mega action was brought in the Superior Court of Ontario, perhaps because the Federal Court might conceivably have been dismissive of a lawsuit predicated primarily on “misappropriation”, which is a tort and a particularly vague one – and NOT a cause of action pursuant to the Copyright Act (see below). Indeed, the Federal Court conceivably might summarily toss any litigation focussed on “misappropriation”. BTW, the Ontario Court of Appeal successfully disentangled the muddling of misappropriation of personality and copyright in the ill-fated Glenn Gould case back in 1998. See Gould Estate v. Stoddart Publishing Co. Ltd., 1998 CanLII 5513 (ON CA), <https://canlii.ca/t/6gw8>

It will be interesting to see who ends up representing  the defendants here – and how the proceedings unfold.  Based on the copyright claims alone, this case could conceivably get bogged down at the outset and, if it ever does get going, for years to come, and perhaps never achieve a positive adjudicated outcome or even a satisfactory settlement from the plaintiffs’ point of view.

It will be interesting to see how the apparent lack of specificity, material facts, and particulars in the pleading and other issues could play out in procedural wrangles that could drag on with motions and discovery for a very long time. Even if the copyright causes of action survive, it is easy to predict that defences could potentially include the concepts of fair dealing, implied right, and simply non-infringement. Once again, as I’ve said, “misappropriation” is not something recognized by Canadian copyright law.

“Misappropriation” is a tort concept – i.e. judge-made common law that establishes liability for such things as negligence, product liability, taking of personality rights, etc. I shall never forget the great Prof. Harry Glasbeek’s impassioned lesson in 1^st year law school at Osgoode about how a Scottish woman was able to successfully sue after finding a dead decomposed snail in a bottle of ginger beer that she had partially consumed. See  Donoghue v Stevenson. That was a landmark of judge made tort law from the English House of Lords in 1932.

Some tort law finds its way into statute. Much of it does not. Canada’s Copyright Act explicitly excludes tort concepts. Copyright lawyers are – or ought to be - aware of the 1979 SCC decision that prominently mentioned the then very young and now the late Hon. Roger Hughes, namely Compo Co. Ltd. v. Blue Crest Music et al., 1979 CanLII 6 (SCC), [1980] 1 SCR 357, <https://canlii.ca/t/1mjth> wherein the great Justice Estey stated:

Mr. Hughes for the respondent in answer to a question from the Bench put it very well when he said that copyright law is neither tort law nor property law in classifi­cation, but is statutory law. It neither cuts across existing rights in property or conduct nor falls between rights and obligations heretofore existing in the common law. Copyright legislation simply creates rights and obligations upon the terms and in the circumstances set out in the statute. This creature of statute has been known to the law of England at least since the days of Queen Anne when the first copyright statute was passed. It does not assist the interpretive analysis to import tort concepts. The legislation speaks for itself and the actions of the appellant must be measured accord­ing to the terms of the statute.

(highlight, emphasis & underline added)

Needless to say, there is also the very important and venerable s. 89 of the Copyright Act:

No copyright, etc., except by statute

89 No person is entitled to copyright otherwise than under and in accordance with this Act or any other Act of Parliament, but nothing in this section shall be construed as abrogating any right or jurisdiction in respect of a breach of trust or confidence.

1997, c. 24, s. 50 (highlight, emphasis & underline added)

See  Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68 (CanLII), [2012] 3 SCR 489, <https://canlii.ca/t/fv76k> paras. 81, 82.

The quantum of damages sought is beyond huge – potentially statutory damages of $20,000 for each of the “hundreds of thousands, if not millions, of Owned Works across the Websites” allegedly infringed. Theoretically, that’s in the Billions. Naturally, mega injunctive relief is also sought.

Here is Section 3 of the Copyright Act. Which of these provisions are implicated here and how? The Statement of Claim – in all of its 84 pages – does not tell us:

Copyright in works

3 (1) For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

(a) to produce, reproduce, perform or publish any translation of the work,

(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,

(h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,

(i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and

(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

and to authorize any such acts.

BTW, there are also allegations of TPM infringement, breach of contract, and unjust enrichment.

The TPM issue could also be interesting because TPMs are also involved in the Blacklock’s litigation, which is presently in the Federal Court of Appeal and is likely to be finally resolved long before this AI litigation even gets fully off the ground, if ever.

Here’s the Plaintiffs’ law firm’s press release. Here’s some coverage in the NY Times.

There is also a recent lawsuit in BC based by Canlii against Clearway et al. Canlii is the very important free database of Canadian legal decisions. Here’s the Statement of Claim filed in the Supreme Court of British Columbia on November 4, 2024, also from a major law firm.  This also involves AI and the Statement of Claim alleges misappropriation, misuse, conversion, and unjust enrichment. Again, one can expect procedural issues that could last for years to come.

Stay tuned for future developments on these lawsuits. But don’t expect anything conclusive any time soon.

AI is a huge growth industry, for better or worse, and affects virtually every sector. And it is now the centrepiece of lots of litigation in Canada and elsewhere. This is inevitable given the nature of the legal profession. The lawsuits will presumably unfold with much deliberation and will hopefully be well argued by all concerned. This is probably better than some hasty and panicked legislation prompted by political opportunism that could conceivably result in bad cures for misdiagnosed problems.

HPK