Can You Claim Copyright in AI-Generated Works in Canada?

Earlier this past week, I was working on a project with my daughter. We were drafting a learn to read book about her teddy bear, Blue. With the appropriate prompts the AI could easily and quickly produce the text and images for the 32-page book. That got me interested in a fairly fundamental question: did I own that creation that AI assisted with?

If you use an AI to produce a work, can you claim copyright over that AI-generated content? It’s a challenging question given that the law is evolving as we speak however, here’s the general state of play on copyrights and authorship.

Canadian Copyright Basics

Under Canadian law, copyright protection arises automatically if a work meets three key conditions:

1. Original Expression 

The work must be original meaning it originates from the creator and isn’t copied from elsewhere. In practice, this requires some level of skill and judgment by the author in the expression of an idea. For example, an original drawing or an original story about the teddy bear, those are works of the creator’s personal skill or creativity. Ideas, facts, or titles are not protected.

2.       Fixation in a Tangible Form 

The work must be fixed in some tangible form. It can be written on paper, saved as a digital file, recorded in audio or video, etc. A song that’s only improvised and never recorded or a story you tell aloud but never write down, wouldn’t be “fixed” and thus wouldn’t qualify. Most AI-generated outputs (like an image file or text document) are automatically saved in a fixed form, satisfying this requirement.

3. Canadian Connection 

The creation must have a connection to Canada or a country with which Canada has a copyright treaty. In practice, this usually means the author is a citizen or resident of Canada (or another treaty country) at the time of creation, or the work was first published in Canada or a treaty country. This ensures the work falls under Canada’s copyright jurisdiction. Essentially, you can’t use Canadian law to claim copyright if the work has no tie to Canada or any treaty partner.

If a work meets these three criteria, original expression, fixation, and Canadian connection, it is protected by copyright in Canada as soon as it’s created. No registration or copyright notice is required to have rights (registration is optional, mainly used to document and enforce rights).

What about Authorship of AI Creations?

If we have AI-generated content how do we answer what “original” means and who the “author” is. The Copyright Act does not explicitly state that an author must be human but it has always assumed some human creator behind the work. Copyright is fundamentally about protecting an author’s expression of an idea and, traditionally, “author” has meant a person/company. If an AI produces the content, can that content be considered an “original expression” of an author, and if so, who is the author?

What we do know is that a work must originate from the author and involve more than a purely mechanical exercise, showing a minimal level of skill and judgment. However, when AI is doing the heavy lifting, the human user’s contribution might be very minimal. For example, if you simply enter a text prompt and the AI generates a full painting or article, have you applied skill and judgment to the expression of the work? There’s an argument that a person who merely conceives an idea and instructs an AI to execute it isn’t actually the author of the resulting expression. The AI’s output might look creative but, if no human selected the shapes, colours, sentences, or notes, can we call it a human’s original expression? As such, purely AI-generated works fail the originality test because there was no human creative spark or judgment in producing the final form. Without human creativity, the work may not be “original” in the copyright sense.

Closely tied to originality is the question of authorship. Again, until recently it was assumed the author is a person by definition. The Canadian Copyright Act uses terms like “author” and “owner,” which historically refer to natural persons or legal entities (i.e. companies). An AI is neither, it’s not a human or a corporation, and it has no legal personality.

This authorship issue became a live problem when a piece of AI-assisted artwork titled Suryast was registered as a copyright in 2021:

The Suryast AI-generated artwork.

The Suryast had a base photograph of a sunset and a style image of Van Gogh’s Starry Night uploaded to the AI and the software did the rest:

The work listed both a human artist named Ankit Sahni and an AI. the “RAGHAV Artificial Intelligence Painting App”, as co-authors. This was the first time a Canadian copyright registration recognized a non-human as an author. The inclusion of the AI was simply unprecedented.

In early 2023, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) filed a Federal Court application to expunge or amend the Suryast registration, effectively asking the court to rule that the AI cannot be an author and thus either the human is sole author or the work has no copyright. CIPPIC’s position was that under the current Copyright Act, only humans can be authors and that Suryast lacked the necessary human originality anyway.

Interestingly, the U.S. Copyright Review Board, who also considered a registration application for the Suryast, found that it lacked the necessary human authorship for protection. According to the Board, the expressive visual elements such as the colors, composition, arrangement were determined and applied entirely by the AI meaning there was not sufficient creative control over the actual expression of the work. So, no copyright protection was granted over the Suryast. We are waiting to see whether Canada will follow a similar line.

Another interesting example was an AI-generated comic book called Zarya of the Dawn written by Kris Kashtanova. Kashtanova used the AI tool Midjourney to create artwork for the graphic novel. Kashtanova wrote the story and inputted detailed text prompts to generate the illustrations. The U.S. Copyright Office initially granted Kashtanova a registration but, later partially canceled it on realizing AI was involved. They decided that the images were not the product of human authorship” and so those couldn’t be copyrighted. However, Kashtanova was allowed to claim copyright on the parts she created like the text of the story and the way she curated and arranged the AI-generated images in the comic. The Copyright Office noted that using Midjourney was more than just using a paintbrush, the AI was generating expressive content beyond the artist’s direct control. Therefore, only the human-authored elements of the work got protection, not the AI-generated visuals.

Disclosure of AI-Content

The U.S. Copyright Office has updated its guidelines to require that applicants disclose any AI-generated material in a work:

If AI content is present, the Office will only register the work if the human contributions are sufficiently creative and if the AI-generated portions are supplementary or used as a tool under human direction. Essentially, they ask: “Is the work basically one of human authorship, with the computer merely assisting?” If yes, it can be protected (with a disclaimer that some content isn’t human-made). If no, if the AI’s role overshadows the human’s, then the work, or at least the AI-created portion, is not eligible for copyright.

What Happens Next?

In late 2023, Canada held a public Consultation on Copyright in the Age of Generative AI, and in February 2025 it released a “What We Heard” report summarizing the feedback. Many stakeholders argued that only AI-generated content with sufficient human contribution should qualify for copyright protection. In other words, if an AI work is entirely machine-made with no human creativity, it shouldn’t get copyright; but if a human guided the AI in a meaningful way, the result could be protected.

As it stands, Canada is exploring possible law reforms to address AI authorship. The consultation floated several options:

• Amend the law to explicitly limit authorship to humans only. This would make it clear that AI-generated works have no human author and thus no copyright.
  

• Allow AI-assisted works to be protected but, attribute authorship to the human who orchestrated the creation. This approach would say that if you use an AI to create something, you are the author of the AI-generated work (assuming you initiated and guided its creation). Essentially, the AI is treated like a tool, and the person directing it gets the authorship.
  

• Create a new category of rights for AI-generated works. This could mean a unique set of rules separate from standard copyright. For example, AI-produced works might get some protection but perhaps for a shorter term or with different standards.

These are all just options and, for now, it’s safe to assume that, if an artwork or article popped out of an AI with minimal or no human guidance, there’s a real risk that it has no enforceable copyright under current Canadian law.

So, can you claim copyright in an AI-generated work in Canada? As of 2025, the safest answer is: only if a human author contributed substantial creative effort to the final work. There needs to be some human “skill and judgment” or creative spark for a work to be protected.

If the AI was just a tool in your hands, for instance, you used AI to enhance or assemble content that you guided then your contributions are protected and you are the author of the overall work. But if an AI truly created the material with you providing little more than a prompt or idea, the law may treat that output as having no human author, and thus no copyright.

For now, anyone using AI in creative projects should keep documentation of their own input and creative choices. Emphasize the parts of the work where you exercised judgment or selected elements because those are likely what copyright will cover. And remember that copyright in AI-generated content is a fast-moving area.