President Biden issued an executive order today on the regulation of AI systems including on safety test results and standards for red-team testing. In a section on intellectual property, the USPTO was directed to publish guidance on patent inventorship and the use of AI and the Copyright Office to provide recommendations on works produced using AI and the treatment of copyrighted works in AI training.
The United States Supreme Court issued several decisions yesterday that may be of interest:
- Twitter, Inc. v. Taamneh and Gonzalez v. Google LLC – social media companies are not liable for terrorist attacks by hosting accounts from terrorists: “To impose aiding-and-abetting liability for passive nonfeasance, plaintiffs must make a strong showing of assistance and scienter. Plaintiffs fail to do so.”
- Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith – copyright fair use does not cover Warhol’s use of a photograph by Goldsmith to create a silkscreen portrait of Prince -> “the purpose of the Orange Prince image is substantially the same as that of Goldsmith’s original photograph. Both are portraits of Prince used in magazines to illustrate stories about Prince.”
- Amgen Inc. v. Sanofi – patent enablement -> “Amgen’s claims sweep much broader than the 26 exemplary antibodies it identifies by their amino acid sequences. Amgen has failed to enable all that it has claimed, even allowing for a reasonable degree of experimentation
An Order in Council has fixed December 30th as the day on which Division 16 of Part 5 of the Budget Implementation Act, 2022, No. 1 comes into force to extend certain terms of copyright protection from 50 years to 70 years after the life of the author. Continue reading Copyright
The budget implementation bill, C-19 received royal assent yesterday. It includes some IP-related changes:
- measures directed to the term of copyright including “6. Except as otherwise expressly provided by this Act, the term for which copyright subsists is the life of the author, the remainder of the calendar year in which the author dies, and a period of 70 years following the end of that calendar year” (Division 16);
- changes to the College of Patent Agents and Trademark Agents Act (Division 17); and
- replaces the term “Prothonotary” with “Associate Judge” for the Federal Court (Division 22).
The following private member bills were introduced on Friday:
- C-292 “Online Algorithm Transparency Act” directed to ensuring that algorithms used for “moderating content … do not result in adverse differential treatment of any individual or group of individuals based on one or more prohibited ground of discrimination”
- C-294 “An Act to amend the Copyright Act (interoperability)” directed to expanding the interoperability exception in 41.12 to devices in which software is embedded and to products used to provide interoperability.
Bill C-19, “An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures” includes
- measures directed to the term of copyright in Division 16 including “6. Except as otherwise expressly provided by this Act, the term for which copyright subsists is the life of the author, the remainder of the calendar year in which the author dies, and a period of 70 years following the end of that calendar year”;
- changes to the College of Patent Agents and Trademark Agents Act in Division 17; and
- replaces the term “prothonotary” with “associate judge” in Division 22.
The government released its Budget 2022 that includes some IP related provisions:
- “amendments to the Copyright Act to extend the general term of copyright protection from 50 to 70 years after the life of the author”;
- “legislative amendments to the College of Patent Agents and Trademark Agents Act to better enable directors of the College to prioritize the public interest”;
- “Review of Tax Support to R&D and Intellectual Property” including SR&ED and a patent box regime;
- “$750 million over six years, starting in 2022-23, to support the further growth and development of Canada’s Global Innovation Clusters”; and
- funding for “CanExport program to help Canadian businesses secure their intellectual property in foreign markets”, expand use of ExploreIP, Canada’s intellectual property marketplace” and “expand the Intellectual Property Legal Clinics Program”.
Earlier today, the government introduced Bill C-18 “An Act respecting online communications platforms that make news content available to persons in Canada” with the stated purpose “to regulate digital news intermediaries with a view to enhancing fairness in the Canadian digital news marketplace and contributing to its sustainability, including the sustainability of independent local news businesses.” and includes a section on implications of copyright.
The Supreme Court of Canada issued its decision today in York University v Access Copyright. The Court agreed with the Federal Court of Appeal that the tariff is not enforceable against York University, saying that a user is entitled to obtain its rights through other means than a tariff, so if the user makes an unauthorized use, the appropriate remedy is an action for infringement. The Court did not endorse the fair dealing analysis conducted by the lower courts and declined to make a decision on fair dealing but did discuss that in the educational context it is not only the institutional perspective that matters.