As part of its [Open Information Initiative](https://www.cippic.ca/articles/the-launch-of-cippic-s-open-information-initiative), CIPPIC has learned that some investigations recently completed by the Office of the Information Commissioner of Canada, the ombudsperson responsible for investigating complaints filed by persons using the Access to Information Act, have taken up to 11 years to complete. The Act is Canada’s main transparency legislation for obtaining records under the federal government’s control. 

CIPPIC obtained data for all investigations completed by the Commissioner during a three-year period from 2022-2024 using an access to information request filed with the Commissioner.[1] According to the records, the Commissioner completed 17,430 investigations during this time period. The average length of an investigation is unclear due to issues in the data CIPPIC received from the Commissioner, but appears to be between four and five months.[2] 

There were some notable exceptions to this average. During the time period, a total of 1,652 investigations took more than a year to reach an outcome. While the Commissioner completed approximately half of those investigations in under two years, one hundred investigations took five or more years. Eight took more than a decade to resolve. 

The longest wait time was for two investigations that took more than 11 years — specifically, 4,067 days between when the watchdog assigned the matters to an investigator on Jan. 19, 2011, and when the investigations resulted in an outcome on March 9, 2022. 

The Commissioner withheld from CIPPIC information showing when complaints were filed, only disclosing when complaints were assigned to investigators. While the processing time between filing a complaint to a final outcome is necessarily longer, the total duration cannot be determined from the available data. (CIPPIC has filed an appeal to obtain this information). 

The records do not account for the processing time of access requests made to federal institutions prior to filing of a complaint. According to the Globe and Mail’s 2023 [Secret Canada project](https://www.secretcanada.com/), only 50 per cent of federal access requests are completed within legislative timelines. 

Shortly after responding to CIPPIC’s request for the information, the Commissioner [began posting](https://www.oic-ci.gc.ca/en/information-commissioners-guidance/quarterly-statistics) some new general statistics pertaining to the timelines of her investigations. These materials do not mention the time periods revealed in the documents obtained by CIPPIC. 

### How the complaint process works

Under the Access to Information Act, complainants have 60 days after receiving a response to their access request to file a complaint about the processing of that request with the Commissioner. This may be due to the institution improperly refusing the access request or failing to meet a legislated deadline for responding to the request. After the Commissioner receives a complaint, an investigator reviews the complaint for admissibility. If the complaint is admissible, the Commissioner’s staff will issue a notice of intention to investigate to the complainant and the government. 

The complaint then moves into the information-gathering stage, where investigators collect the necessary documents. After gathering the information, the complaint moves into the analysis stage. The Commissioner’s investigator may follow up with either the complainant or the government institution for more information. There are no mandatory caps on the length of the Commissioner’s investigations.

During the course of an investigation, the file might be reassigned to a new investigator. The records obtained by CIPPIC show that the Commissioner frequently reassigned files during the three-year period in question. The time between the date the file is first assigned and when it is reassigned ranged widely, from a matter of days to multiple years. 

Based on an investigator’s analysis, the investigator will recommend an outcome. If the complaint is well-founded and the allegations have merit, the Commissioner can order the government institution to take action to resolve the matter or make a recommendation—for example, requiring the federal institution to disclose a record. The Commissioner does not have the power to release records directly.

If the complaint is not well-founded, the Commissioner can either refuse to investigate or cease an in-progress investigation. This can happen in two cases: when the complaint is trivial, vexatious, or made in bad faith, or when an investigation becomes unnecessary. An investigation may become unnecessary when an institution responds to an access request after the complaint is filed or when there is no practical benefit in continuing the investigation. 

The Commissioner must report to the complainant, the government institution, and any affected third parties when an investigation is finished and the Commissioner has made a recommendation. When the complaint is well-founded, the Commissioner will send an initial report to the institution, including any findings. The Commissioner will also send out the final report, which includes the findings of the investigation and any orders. 

Under the Access to Information Act, complainants cannot challenge in Federal Court the federal government’s response to their request until the Commissioner has finished her investigations. 

### Why are investigations so long? 

The length of an investigation depends on the type of complaint and the original request, the Commissioner said in a statement in response to CIPPIC’s questions. 

There are a variety of factors that affect the length of an investigation, including the volume of documents to process, the classification of the documents, and the question of whether the government applied any legislative exceptions to releasing documents. The Commissioner stated that they can generally complete an investigation in between three and 12 months. The records obtained by CIPPIC corroborate this range.

“Reducing the amount of time the [Commissioner] takes to assign a complaint, as well as reducing the time it takes to complete an investigation once assigned, are key priorities, but it is also important to note that the [Commissioner] has no control over the number of complaints it receives,” the emailed statement reads. 

Funding is also an issue. The Commissioner’s funding for her contingent of 135 employees is provided through the Treasury Board Secretariat. According to the Commissioner’s 2023-2024 annual report, the Commissioner started the fiscal year in a deficit. The Commissioner has a budget of approximately $18.5 million for the 2024-2025 fiscal year. 

“In the past, the Commissioner has sought funding through the Government for additional resources when circumstances dictated. Unfortunately, the [Commissioner] currently lacks an independent funding model. Such a funding model would both reflect the Commissioner’s independence as an Agent of Parliament, and align the [Commissioner’s] annual budget with its workload, providing greater efficiency in assigning and investigating complaints,” the Commissioner said in the email.

The Commissioner also saw a massive increase in the number of complaints filed during the COVID-19 pandemic. According to the data obtained by CIPPIC, the number of complaints filed ticked up between 2021 and 2024. The Commissioner’s annual report shows approximately 4,000 open complaints in the Office’s inventory each year between 2020 and 2022, compared to 3,340 in 2019. 

Despite this, the Commissioner says she has reduced the number of open complaints. According to the data made public by the Commissioner after CIPPIC obtained a response to its request, as of Jan. 6, 2025, there were 2,481 open complaints. The Commissioner states that this is 31 per cent less than when the Commissioner started her first term on March 1, 2018. (The Commissioner was recently reappointed to a second seven-year term, starting on March 1, 2025).

“By the end of the current fiscal year, this inventory will overwhelmingly consist of complaints under investigation or recently submitted complaints awaiting investigation,” the Commissioner stated. 

### Entrenched delays

Delays and long waits are not new in Canada’s notoriously slow and dysfunctional access to information system. According to the Globe and Mail’s 2023 [Secret Canada project](https://www.secretcanada.com/) led by Tom Cardoso and Robyn Doolittle, in 2021, federal government institutions only completed approximately 50 percent of access requests within the 30-day statutory timeline. 

Canada’s highest court has already called out delays in other parts of the justice system. In [R v Jordan](https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16057/index.do), which dealt with delays in the criminal justice system, the Supreme Court of Canada zeroed in on the impact of delays in the justice system. 

“Timely justice is one of the hallmarks of a free and democratic society,” said the majority decision in that judgment.

While the Jordan decision only applies to the criminal system, the emphasis on problematic delays applies more broadly to other aspects of the legal system, including the access to information system. When Commissioner’s investigations take years, it can leave complainants in a state of uncertainty and erode public confidence in a system whose purpose is “to enhance the accountability and transparency of federal institutions in order to promote an open and democratic society and to enable public debate on the conduct of those institutions.”

The current Commissioner has repeatedly called out government institutions for failing to respect the legislated 30-day response time to requests. For example, in a joint release in late 2024 between Canada’s Information Commissioners and Ombuds, she called for public institutions to commit to responding to access requests within legislated timelines.

The current Commissioner also addressed these issues in her 2023-2024 annual report, writing that a properly functioning access to information system is a collective responsibility for government institutions. 

“This is a collective responsibility shared by all public servants,” she wrote. 

A legislative review of the Access to Information Act is currently scheduled to begin by June 2025. 

***

[1] CIPPIC’s access to information request was for: “Three lists of all investigations finally concluded in 2022, 2023, and 2024, identifying: the file number that the OIC assigned to each of the listed complaint investigation; complaint receipt date;
investigation start date; investigation conclusion date; and, if available, the date the investigative
reports went to parties. Preferably in XLSX or an Excel-readable file.”
Despite this request, CIPPIC received the data in PDF format. CIPPIC converted the data into .XLSX format to analyze it.

[2] The data CIPPIC received contained three dates: the date the Commissioner assigned the complaint to an investigator, the date the Commissioner reassigned the complaint file, and the date the investigation reached an outcome. In the Excel file, the column with the date the Commissioner assigned the file is blank after line 15,255, while the column with the date the investigation reached an outcome still contains a date. This means that CIPPIC does not have a complete picture of the length of the 2,177 complaint investigations that do not list the date the Commissioner assigned the investigation. When taking into consideration all entries in the spreadsheet where CIPPIC knows how long the investigation took, the average length was approximately 152 days. When taking an average of every single entry in the data the average length of an investigation is 133 days


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Some investigations recently completed by the Information Commissioner of Canada have stretched over a decade long

With this resurgence of creative clothing comes a less than glamorous side of the fashion industry: trademark infringement. As upcycled fashion blurs the line of brand identification, fashion designers are starting to see themselves on the receiving end of cease-and-desist letters. Is this sustainable fashion trend fair game, or is the law about to put the brakes on the upcycled fashion revolution? Let’s explore the complexities of trademark law and how it’s shaping the future of fashion upcycling. 

### Fashion meets Tech
Fashion enthusiasts isolating at home during the pandemic popularized upcycled fashion, with [many picking up sewing and reconstructing clothing as a hobby](https://fashionmagazine.com/style/sewing-my-own-clothes/). Lockdowns restricted access to traditional shopping options, forcing people to shop in their own closets. Social media and e-commerce platforms like [Depop](https://Depop.com) provided a perfect stage for DIY upcyclers to showcase their work and build communities with like-minded consumers. 

Today, a simple search for ‘upcycled fashion’ yields millions of posts on [TikTok](https://tiktok.com) and [Instagram](https://instagram.com), fueling the trend and providing users a platform to raise awareness about sustainability in fashion.  

For one New York-based designer, upcycling fashion began as an experimental hobby using discarded materials. [Nicole McLaughlin](https://nicolemclaughlin.com/), @upcycle on TikTok, posted her creations online – often showcasing repurposed items from big brand names – and quickly gained a cult following. McLaughlin has since collaborated on sustainable fashion projects with [Hoka](https://www.hoka.com/en/us/blog-post/?id=humans-of-hoka-nicole-mclaughlin), [Hèrmes](https://www.instagram.com/nicolemclaughlin/p/CMNU5EEFUD9/?img_index=1), and [Gucci](https://www.instagram.com/nicolemclaughlin/p/CcTCixbu-rs/). Recently, [Puma](https://www.instagram.com/nicolemclaughlin/p/DCZmI2py6qE/?img_index=1) enlisted her to redesign its Puma Suede sneakers in a one-of-a-kind patchwork style using recycled factory scraps. 

Beyond social media, brands are joining the upcycling trend by collaborating with technology companies for large upcycling projects. This is the case for British brand Ahluwalia, which has partnered with Microsoft to create [“Circulate”](https://ahluwalia.world/pages/circulate)  – a textile and clothing recycling program where users can send in used garments in exchange for store credit.  

These platforms not only provide a marketplace for sustainable fashion but also amplify the message that secondhand materials can be transformed into luxury fashion. Technology’s role in the upcycling trend is empowering a new generation of consumers who prioritize sustainability and creativity in their fashion choices. However, as the value of upcycled fashion continues to grow, it raises complex questions for trademark law – especially when high-profile brand names are repurposed in the designs. 

### Trademark Challenges to Upcycling
With fashion upcycling becoming more widespread, trademarks — the legal protection of a brand’s signifiers — are becoming a major point of contention. When upcycled designs incorporate brand names, logos, or other symbols that identify the source of the original product, designers may be stepping into a legal minefield. In response to the resurgence of the upcycling trend, trademark owners are starting to assert rights over the reuse of their trademarks in secondary markets.  

Courts should consider the principle of exhaustion of intellectual property rights in the case of fashion upcycling. The exhaustion doctrine dictates that [trademark owners lose control over the use of material objects once they’ve been sold](https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2333869). By the time customers get their hands on a product, the original brand has already relinquished title to it; in other words, the trademark owner's exclusivity rights are ‘exhausted’ by the time a third party wants to resell or modify the product. The exhaustion doctrine helps unlock the potential of sustainable fashion because it allows for the reuse of secondhand goods without requiring permission from the original owner. The policy rationale behind allowing resale and modification of trademarked fashion hinges on the broader societal benefit of reducing waste and overconsumption, in favour of a circular economy.  

Further, the exhaustion doctrine can benefit small-scale, independent designers who may not have the resources to seek permission for branded items, or mass produce new garments. By allowing upcycling without the need for brand permission, the law encourages entrepreneurial spirit and environmentally conscious innovation. Independent designers can use discarded materials at a low production cost to create affordable and sustainable fashion for a broader audience. 

The exhaustion doctrine, however, doesn’t always protect fashion upcycling designers. While exhaustion might allow for resale and modification, it doesn’t automatically authorize third parties to sell modified trademarks in new designs without limits.  

While some upcycling advocates argue they pay homage to brands when repurposing their designs, [brand owners raise concerns about brand dilution and consumer confusion](https://www.abc4.com/wp-content/uploads/sites/4/2021/03/NIKE-vs-MSCHF.pdf). These differing perspectives on upcycling come into sharp focus when high-profile brands take legal action against upcylers.  

In Canada, the [Trademarks Act](https://laws-lois.justice.gc.ca/eng/acts/t-13/section-22.html#:~:text=22%20(1)%20No%20person%20shall,of%20the%20goodwill%20attaching%20thereto.) goes beyond just protecting against confusion and specifically addresses the depreciation of goodwill associated with a mark. The Act expands trademark protection to include situations where a brand’s reputation is harmed by the unauthorized use of its mark in a way that undermines the consumer’s perception of the brand’s quality or values. 

Courts are more likely to side with brand owners when modifications cause confusion about the source or authenticity of the product. In H-D U.S.A., LLC v Varzari [2021 FC 620](https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/499058/index.do), a case about the sale of custom-built electric bikes that incorporated Harley-Davidson motorcycle parts and the iconic Harley-Davidson logo, the court found trademark infringement of a repurposed item. The court found a likelihood of consumer confusion based on the strength of Harley-Davidson's trademark, the proximity of the goods (bike-related products), and Mr. Varzari’s intent to mimic the original branding. The court also concluded that Mr. Varzari’s use of the Harley-Davidson logo was likely to dilute the goodwill attached to the trademark.  

The legal landscape around fashion upcycling is still relatively unclear because most cases are settled before a formal ruling can take place. In the United States, [Louis Vuitton commenced a lawsuit against Sandra Ling](https://www.pacermonitor.com/public/case/38138507/LOUIS_VUITTON_MALLETIER_SAS_v_SANDRA_LING_DESIGNS,_INC_et_al), a designer who repurposed authentic pre-owned Louis Vuitton items into modified forms of handbags, apparel, and accessories. The court did not address the applicability of the exhaustion doctrine, as [the parties settled with Louis Vuitton securing a $603,000 payout and a permanent injunction](https://www.thefashionlaw.com/louis-vuitton-sandra-ling-settle-trademark-suit-amid-rise-in-upcycling-cases/). The court reached a similar outcome in [Chanel, Inc. v. Shiver and Duke](https://casetext.com/case/chanel-inc-v-shiver-duke-llc), where the parties entered into a stipulated judgment in favour of Chanel. Chanel alleged trademark infringement against the upcycling company [Shiver + Duke](https://shiverandduke.com/) for repurposing Chanel’s iconic CC monogram into their jewelry designs. The parties ended up [privately settling](https://www.thefashionlaw.com/chanel-settles-upcycling-suit-over-jewelry-made-from-logo-bearing-buttons/), followed by the removal of all Chanel-branded items from Shiver + Duke’s website. 

### What’s next for the future of upcycling?
hese high-profile cases demonstrate that large fashion companies are more than willing to take on upcyclers by asserting their trademark rights, often with a wealth of legal resources at their disposal. For many small, independent upcycling designers, a single lawsuit can be financially devastating. The threat of litigation and uncertainty in the law may have the effect of stifling innovation and discouraging creative designers from exploring the boundaries of eco-friendly fashion that are in line with broader sustainability goals.  

While trademark holders should protect their legal rights, at what point must the law step in to protect designers like Nicole Mclaughlin, who entered the fashion industry to combat overconsumption through environmentally conscious design? 

The legal battle hinges on whether upcycled fashion creates consumer confusion or diminishes the original brand’s goodwill. If the goal of upcycled fashion is primarily artistic or environmental, should this purpose be factored into the legal equation? Trademarks serve as a signifier of brand authenticity, and their removal in modified fashion is not necessarily a barrier to the goals of upcycled fashion. It is entirely possible to create upcycled fashion without infringing on the original trademark; however, this requires a careful balance between creativity and ensuring that the modified product doesn’t mislead consumers or diminish the original brand’s goodwill. Given the environmental benefits of upcycling, there is a compelling policy argument for adopting a more flexible or purposeful approach to trademark law that better aligns with broader societal goals.  

As upcycling continues to challenge traditional notions of a linear economy, trademark law must evolve to balance protecting brand rights with supporting creative designers who push the boundaries of sustainable fashion. 

_The opinion is the author's, and does not necessarily reflect CIPPIC's policy position._

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Fashion Upcycling and Trademark Infringement

In November 2024, [several Canadian media companies sued OpenAI](https://litigate.com/assets/uploads/Canadian-News-Media-Companies-v-OpenAI.pdf), alleging it circumvented technological protections to scrape their sites and copied their works, infringing copyright. This lawsuit and [other ongoing legal battles]( https://nytco-assets.nytimes.com/2023/12/NYT_Complaint_Dec2023.pdf) underscore the growing tension between AI technology and existing copyright law, as well as the evidentiary challenges inherent in large-scale data-scraping claims. 

Despite alleging massive infringement, the suit offers little concrete evidence, raising the question of whether broad accusations can compel an AI company to open its “black box” without a firmer factual basis. While these cases highlight legitimate concerns about using copyrighted material in AI training, they rest largely on speculation and circumstantial inferences. Indeed, the Canadian media companies are effectively asking OpenAI to prove a negative: to show it neither scraped their sites nor relied on their data for training. 

The claims may be plausible, but outside of the confidential walls of OpenAI, they appear to lack evidentiary causal links to damages: details of circumvented protections and clear proof of copying. As filed, their chance of success appears uncertain, and the independent evidence suggested by the pleadings alone likely falls short of what is needed to prevail at trial. 

### The Problem of Circumstantial Evidence

Many of the claims against OpenAI (and other AI developers) rely heavily on inference, assumptions, and circumstantial evidence. The Canadian media companies’ arguments hinge on a few key points: 

**The "Likely Included" Argument:** The plaintiffs state that because their works were accessible on the internet, and AI models are trained using vast amounts of online data, their works were likely included in training datasets. However, the statement of claim also acknowledges that this is assumed and not known: “The full particulars of when, from where, and exactly how, the Works were accessed, scraped, and/or copied is within the knowledge of OpenAI and not the News Media Companies.” 

 The pleadings refer broadly to OpenAI “scraping” millions of articles from the media companies’ sites, or from authorized third parties. But the plaintiffs have not identified specific articles or excerpts, nor provided examples of ChatGPT outputs that replicate or closely paraphrase those articles. Copyright infringement requires proof of copying a work (or a substantial part of it). Alleging that “you copied an enormous number of articles” typically requires at least some reference to a sample set of works or examples of outputs that reproduce distinctive content. This is notably absent from the Canadian media companies’ statement of claim. 
 
**Circumvention and Scraping Allegations:** The plaintiffs also allege that OpenAI “scraped” their websites, and that since “paywalls” or “robots.txt” files were in place to prevent scraping, OpenAI must have bypassed those controls.  

Yet there are no concrete facts explaining how they know OpenAI circumvented these restrictions, nor any technical details of detected intrusions. Stating the conclusion that “OpenAI circumvented our technological measures” is different from pleading the material facts establishing circumvention. 

**Model Outputs as "Proof":** Although not specifically pled by the Canadian media companies, other plaintiffs point to the ability of AI models to reproduce outputs that are similar to their works as evidence of "memorization" and, therefore, of inclusion in the training data. For instance, the New York Times claims that GPT-4 can produce near-verbatim excerpts of some of their articles, although this alone does not prove direct, unauthorized use of their content.  

The Canadian media companies make a similar claim alleging OpenAI broadcast, displayed, transmitted, and published their works. But unlike the NY Times, the Canadian media companies do not include any examples of this occurring, and their statement of claim is vague as to whether they have any evidence in hand. 

### The Lack of Specifics: A Trial of Vague Claims

These arguments share a common thread: they demonstrate that the media companies do not possess evidence that specific content was used, where it was obtained, or how it was used within the training process. Instead, they suggest it is likely that this was the case. They rely on a combination of availability (content was available on the internet), common practices (AI models are trained on vast amounts of data including scraped content), and output similarity (outputs are sometimes similar to plaintiffs’ works). These points, while suggestive, fall short of the burden of proof typically required in copyright infringement cases unless they can be substantiated by direct evidence. 

Beyond the circumstantial nature of the evidence, the claims often suffer from a distinct lack of specificity. Consider these issues: 

**No Specific Datasets:** Plaintiffs rarely identify specific datasets that contain their works. They often refer to large, publicly available datasets without naming the precise datasets or their composition. In the New York Times and Canadian media companies’ lawsuits, they mention datasets like Common Crawl (an open dataset of web data), but the lawsuit does not specify which content came from which sources. Notably, there is no suggestion that the Common Crawl dataset is infringing; only its use by OpenAI is alleged as unauthorized copying. 

**Vague Allegations of Copying:** The Canadian media companies refer to their millions of works and infer that OpenAI copied and ingested them without concrete details about how, when, or from where this occurred. The claim states that OpenAI scraped their content directly from their websites, or from third-party datasets, but does not clarify which content was taken from each source. 

**Unclear or No Real-World User Infringement:** Many claims fail to clearly explain how the use of the content constitutes copyright infringement. They claim the models were trained using their content and/or can reproduce their content, but do not show how this breaks any copyright law or results in harm. 

In the New York Times lawsuit, the claims cite examples where the AI model was prompted with specific article excerpts and output similar text. However, these prompts were created by the plaintiffs, not typical users. There are no allegations that real-world users are doing this, or why such behaviour would cause harm. 

The Canadian media companies allege that by making its models available, OpenAI effectively authorized copyright infringement. However, it remains unclear whether they contend that OpenAI’s conduct meets the Canadian legal standard of authorization — that it expressly or implicitly sanctioned, approved, or countenanced the infringing activity — or whether they are arguing that merely providing the means to infringe should be sufficient to establish authorization. The burden of proof is on the plaintiff to show that the defendant intended to authorize the infringing activity, and [this cannot be assumed just because the defendant has the ability to prevent it](https://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.html#par42). This will be difficult to prove considering the efforts undertaken by [OpenAI to specifically prevent verbatim outputs and memorization](http://arxiv.org/abs/2412.06370). 

### The Problem of Proving a Negative

At the pleading stage, plaintiffs are not required to give every factual detail necessary to substantiate a legal claim, especially when the details are in the defendant’s control. The Statement of Claim appears to plead the material facts necessary to support its causes of action, but the pleadings at times mix factual allegations with inferences and conclusions. Whether these allegations will hold up if challenged at trial is a separate question that depends on whether the plaintiffs can produce actual evidence in discovery to prove those facts: a few ‘smoking-gun’ examples, or server logs, or AI outputs that strongly indicate copying.  

This lack of specifics makes it difficult to establish a clear case of copyright infringement. It also creates a situation where the plaintiffs are, in effect, asking AI companies to prove a negative: to prove that their data was not used. This approach challenges the established legal principle that the burden of proof rests with the plaintiff. 

Demonstrating that specific data was not used is a difficult, if not impossible, task. It is much easier to demonstrate that an action did occur than to prove that an action did not occur. Because training datasets are complex and often opaque, the plaintiffs risk shifting the burden of proof, demanding that OpenAI demonstrate that the plaintiff's content was not present, or was not used in an infringing way. 

This situation creates an unfair imbalance. The plaintiffs, by relying on the claim of "likely" inclusion and circumstantial evidence, are essentially asking the court to compel OpenAI to disclose their training data records, but without first providing specific evidence of copyright infringement. 

### Implications and Questions

This situation raises critical questions about how AI training applies to copyright law. The lawsuits against OpenAI highlight the challenges of litigating copyright issues related to AI, particularly due to the opaqueness of training datasets and the difficulty for copyright holders to obtain direct evidence of infringement. 

The Canadian media companies must make a more compelling case based on demonstrable facts rather than broad assertions and circumstantial arguments. The statement of claim repeatedly states that the particulars are “… solely within the knowledge and control of the OpenAI Entities and not the News Media Companies,” implying the plaintiffs lack the evidence to support their claims. Unlike the New York Times claim that includes examples of specific infringement, the Canadian media companies rely on inferences, assumptions, and circumstantial evidence to support their vague claims.  

To be successful, the Canadian media companies will have to adduce evidence to support their claims: log or forensic evidence of scraping and clear proof of circumventing technological protection measures (TPM); specific examples of copied files (relying on outputs); and evidence verifying that training sets included plaintiff’s articles.

While the media companies’ statement of claim likely pleads the material facts necessary to support the cause of action, there appears to be evidentiary gaps supporting these facts. Relying on OpenAI to fill these gaps in discovery is risky. 

As litigation unfolds, courts may articulate new legal tests or processes for AI-based copyright claims that could guide both future plaintiffs and AI developers on how to plead, defend, or avoid allegations of large-scale data scraping. Legislatures worldwide may also intervene as [several countries consider allowing text and data mining for training AI]( http://data.europa.eu/eli/reg/2024/1689/oj/eng).  Ultimately, these lawsuits will test whether broad, circumstantial allegations can compel AI developers to disclose their entire data pipeline, or whether courts will insist on stronger initial proof. Whichever way it goes, the result could shape AI copyright jurisprudence for years to come. 

_The opinion is the author's, and does not necessarily reflect CIPPIC's policy position._

Commentary

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The AI Copyright Conundrum: Are Claims Against OpenAI Built on Sand? 

Commentary / Blogs

Perspectives

Les programmes de stage de CIPPIC offrent aux étudiants la possibilité de travailler avec des avocats expérimentés sur des problèmes juridiques réels et de pointe résultant de l'utilisation de nouvelles technologies

Travail étudiant

Thèmes

**About CIPPIC:** CIPPIC advocacy involves submission of briefs to government and other policymakers, intervention in precedent‐setting cases before judicial and quasi‐judicial tribunals, creation of public legal education resources, publication of policy reports, participation in multi‐stakeholder policy-making forums, expert testimony before parliamentary committees, and advising under‐represented organizations and individuals on public interest technology law issues.

**About the Internship:** Working closely with CIPPIC lawyers, interns learn how to be effective researchers, policy analysts, and advocates while contributing to public interest policy and law reform in such areas as copyright law, privacy, artificial intelligence, Open Information, consumer protection, communications, and civil liberties. Interns may additionally have opportunities to attend conferences and workshops such as the CIPPIC summer speaker series and to participate in other aspects of the University of Ottawa’s Centre for Law, Technology & Society.
The program is open to all law students, including graduate law students, who have completed at least one year of law school. It runs from Monday, May 12th, 2025 – Friday, August 1st, 2025 (12 weeks).

**How to Apply:** The application consists of a cover letter, a resume, copies of all law school and undergraduate official transcripts (originals not required), and a five page writing sample. CIPPIC staff will conduct Interviews in person, or by virtual meeting, at the applicant’s discretion. Interviews will occur in late March.

**Deadline for applications:** Friday March 21, 2025, 5 PM Eastern Standard Time (EST)

**Submit applications by email:** [cippic@uottawa.ca](mailto:cippic@uottawa.ca)

     CIPPIC Summer Internship Program
     The University of Ottawa, Faculty of Law
     57 Louis Pasteur Street
     Ottawa, ON, K1N 6N5, Canada

     Attention: Director

News

CIPPIC 2025 Summer Internship Program

CIPPIC has filed its [Memorandum of Fact and Law](https://cms.cippic.ca/uploads/A_267_24_1395804_ONTARIO_LTD_v_AG_Canada_Intervener_Memorandum_of_Fact_and_Law_3e8eead498.pdf) in the appeal of [_1395804 Ontario Ltd. v. Canada (Attorney General_), 2024 FC 829]( https://canlii.ca/t/k4zfr), arguing that the _Copyright Act_’s anti-circumvention provisions do not override fair dealing. CIPPIC’s argument focuses on reconciling user rights with Parliament’s enactment of remedies for circumventing digital locks. This intervention follows CIPPIC’s successful participation in the hearing in the Court below, where CIPPIC’s interpretation of the digital lock provisions prevailed. 


**The Decision: Fair Dealing and Anti-Circumvention Provisions**

In the decision under appeal, [_1395804 Ontario Ltd. v. Canada (Attorney General)_, 2024 FC 829]( https://canlii.ca/t/k4zfr), the Federal Court of Canada ruled that Canada’s anti-circumvention provisions do not override fair dealing. The plaintiff, a paywalled news service, sued Parks Canada, arguing that employees had improperly accessed and shared its articles, violating copyright and technological protection measures. The court rejected this claim, holding that using a validly obtained password is not circumvention and, regardless, copyright owners cannot use digital locks to negate fair dealing rights.
The unsuccessful plaintiff appealed.

**CIPPIC’s Argument on Appeal**

CIPPIC has been granted leave to intervene in the appeal. It has intervened to defend the balanced interpretation of the relationship between user and digital locks in copyright law. We argued that:
- Anti-circumvention provisions must align with fair dealing. Copyright owners cannot use technological protection measures to eliminate legally protected user rights.
- A valid password is not circumvention. The Copyright Act targets hacking, not legitimate access.
- The Act must remain technologically neutral. A user’s fair dealing rights do not disappear when content is digital rather than physical.

CIPPIC thanks [James Plotkin](https://gowlingwlg.com/en-ca/people/james-plotkin) and his team at Gowling WLG for their outstanding work on our intervention.

**Next Steps**

The Federal Court of Appeal will schedule a hearing. CIPPIC will continue defending fair dealing and ensuring technological protection measures do not become tools for erasing user rights.
- CIPPIC’s Memorandum of Fact and Law](https://cms.cippic.ca/uploads/A_267_24_1395804_ONTARIO_LTD_v_AG_Canada_Intervener_Memorandum_of_Fact_and_Law_3e8eead498.pdf)
- [Intervention Order](https://cms.cippic.ca/uploads/A_267_24_20241220_O_E_O_OTT_20241220091845_LB_2_c79d6cd3bf.pdf)
- Decision under review [_1395804 Ontario Ltd. v. Canada (Attorney General)_, 2024 FC 829](https://canlii.ca/t/k4zfr)	

Fair Dealing and Digital Locks: CIPPIC’s Intervention at the FCA

On February 14, 2024, CIPPIC submitted an intervention on behalf of [OpenMedia](https://openmedia.org/) in [Telecom Notice of Consultation CRTC 2024-293](https://crtc.gc.ca/eng/archive/2024/2024-293.htm) to advocate for enhanced transparency and fairness in Canada’s telecom market.

The submission was inspired by Ontario Commissioner Bram Abramson’s dissenting opinion, which argued that the current consultation misses key opportunities to enhance consumer information. Commissioner Abramson advocated for a more comprehensive, data-driven approach to consumer protection. CIPPIC was glad to support OpenMedia’s position that the CRTC’s current approach does not go far enough in addressing the transparency issues that prevent Canadians from making informed decisions about their mobile wireless services.

In a [parallel proceeding](https://crtc.gc.ca/eng/archive/2024/2024-318.htm), the CRTC is considering “nutrition labels” to help Canadians better understand and compare Internet service plans. However, the proposed labels do not include mobile wireless services—a significant oversight given that mobile consumers face the same challenges as Internet users. Confusing and inconsistent plan information leaves many Canadians struggling to make informed choices. Worse, mobile wireless complaints accounted for over half of all telecom complaints last year, highlighting the urgent need for better transparency.

CIPPIC’s submission on behalf of OpenMedia calls on the CRTC to expand standardized “nutrition labels” to include mobile wireless services. By adopting clear, machine-readable labels, the Commission can empower consumers, reduce confusion, and foster a more competitive telecom marketplace. Labelling should not stop at service plans. Consumers deserve transparency about the environmental impact and durability of the mobile devices they purchase.


Read the full submission [here](https://cms.cippic.ca/uploads/Open_Media_Intervention_CRTC_2024_293_3ed7018aeb.pdf).

Championing Consumer Rights: OpenMedia’s Submission on Telecom Transparency

#### Prior Work: 

- For a list of CIPPIC's past work, see [here](https://preview.cippic.ca/articles/cippic-s-past-work). 

#### Ongoing Matters:

- _CIPPIC v Sahni_ (more [here](https://www.cippic.ca/articles/cippic-v-sahni-ai-s-role-in-copyright-law)) (seeking to expunge registration of copyright by an AI “author”). 
- _Blacklock’s Reporter v Attorney General of Canada_ (more [here](https://www.cippic.ca/articles/fair-dealing-and-digital-locks-cippic-s-intervention-at-the-federal-court-of-appeal), [here](https://www.cippic.ca/articles/cippic-granted-leave-to-intervene-in-blacklock-s-reporter-appeal), [here](https://www.cippic.ca/articles/federal-court-rules-that-digital-locks-do-not-restrain-fair-dealing-using-a-validly-obtained-password), and [here](https://www.cippic.ca/articles/cippic-discusses-digital-locks-case-on-michael-geist-s-law-bytes-podcast)) (balancing copyright enforcement with user rights).
- _Voltage_ Matters (more [here](https://www.cippic.ca/articles/supreme-court-refuses-to-hear-voltage-v-doe2), [here](https://www.cippic.ca/articles/cippic-granted-leave-to-be-added-as-a-party-by-the-supreme-court), [here](https://www.cippic.ca/articles/cippic-files-respondent-factum-voltage-v-doe-scc-proceeding), [here](https://www.cippic.ca/articles/appeals-court-affirms-denial-of-default-judgement-in-file-sharing-case), [here](https://www.cippic.ca/articles/voltage-reverse-class-lawsuit-denied-certification-again), [here](https://www.cippic.ca/articles/voltage-reverse-class-proceeding-denied), [here](https://www.cippic.ca/articles/federal-court-of-canada-sets-rogers-reasonable-costs-in-norwich-orders), and [here](https://www.cippic.ca/articles/supreme-court-of-canada-decision-in-rogers-v-voltage-clarifies-role-of-is-ps-in-copyright-infringement)) (protecting Internet subscriber privacy rights). 
- Various CRTC Matters (more [here](https://www.cippic.ca/articles/championing-consumer-rights)) (making information for Internet and mobile consumers easier to access and understand).
- _Malone v Library and Archives Canada_ (preventing the destruction of copies of records released under the _Access to Information Act_). 

#### Recent Commentary / Blogs:

- February 27, 2025 - Student Drew May on [Delays in the Office of the Information Commissioner of Canada](https://www.cippic.ca/articles/some-investigations-recently-completed-by-the-information-commissioner-of-canada-stretched-over-a-decade-long).
- February 20, 2025 - Student Tina Derak on [Upcycling in Trademark Infringement](https://preview.cippic.ca/articles/fashion-upcycling-and-trademark-infringement). 
- February 14, 2025 – Articling Student Gareth Spanglett on [AI and Copyright](https://www.cippic.ca/articles/the-ai-copyright-conundrum).  
- January 15, 2025 – Director Matt Malone on [TikTok in the United States](https://www.theglobeandmail.com/business/commentary/article-while-the-us-supreme-court-deliberates-a-tiktok-ban-canadas-own-tiktok/). 

#### Mentorship:

- CIPPIC is working with a talented group of law students this 2025 winter term. 
- CIPPIC is helping coach law students for three moots during this 2025 winter term (building on some [record-setting success](https://www.uottawa.ca/research-innovation/news-all/law-students-repeat-winner-oxford-international-intellectual-property-moot)).

#### Ongoing Initiatives:

- CIPPIC’s [Open Information Initiative](https://www.cippic.ca/articles/the-launch-of-cippic-s-open-information-initiative).  

#### New Research:

- Secret. More soon 😊 

#### Questions:

- Any questions? Contact admin@cippic.ca.  


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