Canada AI Copyright Law: Authorship and Training
Canada's Copyright Act, RSC 1985, c C-42 anchors protection in an author's exercise of "skill and judgment," a standard the Supreme Court of Canada established in CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13. Whether AI-generated content can meet that human-centred threshold is actively contested, and no Canadian court has yet answered the question.
Information last verified on 2026-06-25. This article presents general legal information, not legal advice. Canadian policy on AI and copyright is still under consultation.
Scope: This article covers Canadian federal copyright law as it applies to AI-generated output, AI training and text-and-data mining, and software protection under the Copyright Act, RSC 1985, c C-42. For a global comparison, see how AI and copyright differ worldwide.
Originality and the "Skill and Judgment" Standard
The Copyright Act, RSC 1985, c C-42 does not define "author" and contains no provision for computer-generated works. Canada's originality standard requires that a work originate from its author and reflect the exercise of "skill and judgment" that is "not so trivial that it could be characterized as a purely mechanical exercise," as the Supreme Court of Canada held in CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13. Creativity is not required, but human skill and judgment is. A text or image produced entirely by a generative AI system, with no human creative input beyond submitting a prompt, likely falls short of this threshold because the system, not a human, is exercising the judgment that produces the output. The Copyright Act also offers no statutory fallback: unlike the United Kingdom's Copyright, Designs and Patents Act, s.9(3), which deems the "author" of a computer-generated work to be the person who made the arrangements for its creation, Canada has no equivalent route to protection for purely AI-generated content.
A visual artist who selects, curates, and substantially modifies AI-generated elements may satisfy the skill-and-judgment threshold. A person who submits a prompt and accepts the output without further creative work likely does not. No Canadian court has drawn that line precisely.
The SURYAST Registration and the CIPPIC Challenge
In December 2021, the Canadian Intellectual Property Office (CIPO) issued a copyright registration for an AI-assisted image named SURYAST, listing both an AI application and its human developer as co-authors. The registration attracted significant attention because it implicitly treated an AI system as an eligible author, a position in tension with the human-centred skill-and-judgment requirement from CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13.
In July 2024, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) filed an application in the Federal Court of Canada (CIPPIC v Sahni, T-1717-24) seeking to expunge or amend the registration. The case raises whether an AI can be listed as an author under the Copyright Act. As of 2026-06-25, no ruling has been issued. CIPO's act of issuing a registration is not a judicial finding on authorship, and the CIPPIC litigation is the closest Canada has come to a formal legal test of that question.
AI Training and the Absence of a TDM Exception
Canada has no enacted text-and-data-mining (TDM) exception in the Copyright Act. The general fair dealing provision in s.29 permits use of copyrighted works for research, private study, education, parody, and satire, but it does not expressly address crawling or ingesting copyrighted content to train a machine-learning model. Whether AI training on publicly available works qualifies as fair dealing under s.29 is unresolved; no Canadian court has applied the fair dealing analysis to AI training specifically.
Innovation, Science and Economic Development Canada (ISED) engaged with the question through two rounds of consultation: a 2021 paper on copyright modernisation, and a dedicated "Consultation on Copyright in the Age of Generative Artificial Intelligence" that ran from October 2023 to January 2024. ISED published a "What We Heard" report in 2024. Stakeholder views were sharply divided: rights holder groups sought explicit protection against unlicensed training, while technology companies sought a broad TDM safe harbour. As of 2026-06-25, no amendment or regulation has been introduced, leaving training liability in legal uncertainty.
Software Protection Under the Copyright Act
Copyright Act s.2 expressly includes computer programs within the definition of "literary work" and defines "computer program" as a set of instructions or statements that, when executed in a computer, cause the computer to perform a function. Software is therefore protected under the Copyright Act in the same manner as other literary works, subject to the same originality requirement from CCH Canadian.
Software developed with AI coding tools can qualify for copyright protection provided a human author contributed skill and judgment to the overall work. Substantial human decisions about architecture, logic, and structure are generally sufficient. Code that is purely AI-generated and accepted verbatim without human selection, arrangement, or modification may fall outside protection for the same reason as any other purely AI-generated output.
How Canada Compares with the United States
Both Canada and the United States require a human creative contribution before copyright protection attaches, and neither country has enacted a statutory computer-generated-works provision. In the United States, the Copyright Office applies a "human authorship" requirement supported by Thaler v. Perlmutter (D.C. Cir. 2025). Canada reaches a functionally similar result through the CCH "skill and judgment" standard. The key practical divergence concerns AI training: the United States relies on a general fair use defence under 17 U.S.C. s.107, with multiple court cases underway, while Canada has no enacted TDM exception and an incomplete legislative record. Both countries contrast with the United Kingdom, where CDPA s.9(3) provides a statutory authorship route for computer-generated works.
| Feature | Canada | United States |
|---|---|---|
| Originality standard | Skill and judgment (CCH, 2004 SCC 13) | Human authorship (Thaler v. Perlmutter, D.C. Cir. 2025) |
| Computer-generated-works provision | None | None |
| TDM or AI training exception | None enacted; consultations ongoing | No specific exception; general fair use (17 U.S.C. s.107) |
| Software protection | Literary work (s.2) | Literary work (17 U.S.C. s.101) |
| Contested AI registration | SURYAST (Federal Court challenge pending) | Refused by Copyright Office (Thaler) |
This article presents general legal information about Canadian federal copyright law as of 2026-06-25. It is not legal advice. AI copyright questions are highly fact-specific and the law is evolving rapidly. Consult a lawyer licensed in the relevant Canadian province for advice about your specific situation.
Related Articles
- How AI and copyright differ worldwide
- AI copyright law in the United States
- United Kingdom AI copyright laws
- Australia AI copyright laws
Last updated: 2026-06-25.
Frequently Asked Questions
Can a purely AI-generated image or text be copyrighted in Canada?
Almost certainly not under current law. The Copyright Act requires an author's exercise of 'skill and judgment' that is not a purely mechanical exercise (CCH Canadian, 2004 SCC 13). A work produced entirely by AI without meaningful human creative input likely fails this test. Canada also has no computer-generated-works provision analogous to the UK's CDPA s.9(3), so there is no statutory fallback.
What is the SURYAST case and why does it matter?
SURYAST is an AI-assisted image for which CIPO issued a copyright registration in December 2021, listing an AI application and its human developer as co-authors. CIPPIC challenged that registration in Federal Court in July 2024 (CIPPIC v Sahni, T-1717-24). The case is ongoing as of 2026-06-25 and could be the first Canadian judicial ruling on AI authorship.
Does Canada have a text-and-data-mining exception for AI training?
No. Canada has not enacted a TDM or AI training exception. Fair dealing under Copyright Act s.29 covers research, private study, education, parody, and satire but does not expressly address AI training. ISED published a 'What We Heard' report in 2024 following its October 2023 to January 2024 consultation, but no legislation has been introduced as of 2026-06-25.
Is software protected by copyright in Canada if AI tools helped write it?
Yes, provided a human author contributed skill and judgment to the overall work. Copyright Act s.2 defines 'literary work' to include computer programs. Software produced with AI coding assistance qualifies as long as humans made meaningful design decisions. Code that is purely AI-generated and accepted verbatim without human arrangement or modification is more likely to fall outside protection.
How does Canadian AI copyright law differ from US law?
Both countries require human creative contribution and neither has a computer-generated-works provision. Canada applies the 'skill and judgment' standard from CCH Canadian (2004 SCC 13); the United States applies a 'human authorship' requirement from Thaler v. Perlmutter (D.C. Cir. 2025). The key practical difference is on training: the US relies on general fair use under 17 U.S.C. s.107, while Canada has no enacted TDM exception.
Where does Canada's AI copyright consultation stand as of 2026?
ISED published a 'What We Heard' report in 2024 following divided stakeholder submissions. As of 2026-06-25, the federal government has not introduced a bill or regulation in response. The Copyright Act applies as written with no AI-specific amendments. Monitor ISED's website at ised-isde.canada.ca and Parliament's legislative calendar for any developments.
Sources and References
- Copyright Act, RSC 1985, c C-42, s.2 (definitions)(laws-lois.justice.gc.ca).gov
- CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13(canlii.org)
- ISED, Consultation on Copyright in the Age of Generative Artificial Intelligence (2023-2024)(ised-isde.canada.ca)
- CIPPIC v Sahni, Federal Court of Canada, T-1717-24 (challenge to the SURYAST registration)(cippic.ca)