The IPKat has received and is pleased to host this guest contribution from Katfriends Andrea F. Rush (Blaney McMurtry LLP) (Toronto) and Robert Mitchell, C.M. (Montreal):
AI Authorship: A Case of Old Wine and New Vessels?
by Andrea F. Rush and Robert Mitchell
A Double-Edged Sword and a Two-Pronged Solution
The IP Canada Report 2026, released earlier this month by the Canadian Intellectual Property Office (CIPO), shows solid growth in industrial design filings in Canada, and a marked endorsement of the Hague System by foreign and domestic applicants. The top 6 non-resident filers of industrial design applications in Canada are based in the U.S., China, Switzerland, the U.K. and Germany. While the Hague System provides an international framework for filing design applications, the metes and bounds of protection and enforceability are left to domestic laws.
When it comes to enforceability, designers of 2D functional renderings of 3D functional articles may be able to benefit from overlapping IP rights - both industrial design and copyright protection. As IPKat readers know well, within the Berne Union copyright protects “authors” of drawings. In contrast, industrial design law protects “applicants”. The potential for overlap, and for conflict, is apparent when industrial designers use computer-aided design (CAD) software to prepare drawings. This is commonplace, particularly for compliance with project specifications. Such CAD software is evolving to integrate AI functionality. Who is the author of the design drawings? Can AI qualify as an “author” or “applicant” for registration of an industrial design (for the EU perspective see here)? Will the use of AI features integrated in CAD software negate protection that would otherwise be available to authors and designers?
The requirement for human authorship is open to question. The judicial response may differ under each law (copyright and designs, respectively) and in each market.
Consider the parallels to be drawn between use of traditional CAD software and use of emerging AI tools. The effect on design practice and ability to assert legal protection of drawings and three-dimensional articles based on drawings created through using tools which integrate AI is increasingly uncertain, particularly in jurisdictions which impose a registration requirement for industrial design protection, and not for copyright.
We assume that a designer who selects dimensions, arranges views, and annotates a machine drawing exercises skill and judgment that warrants copyright protection. The use of CAD software has not, in any reported decision we have located under Canadian law, displaced or negated a presumption of authorship.
In our view, a design may not be created by a robot under either copyright or industrial design laws. However, the statutory ambiguities surrounding “author” (of copyright), “applicant”, and “proprietor” (used in Canadian design legislation) make applying for industrial design registration worth a try. Definitions will likely require and receive judicial clarification as AI tools become more prevalent in industrial design workflows. Until that clarification arrives, it is prudent to identify a natural person as the author or applicant of any design for which registration is sought, to document that person’s creative contribution to the design process, and to benefit from overlapping intellectual property laws. This may be one of the reasons for the reported increase in use of the Hague System.
The IP Canada Report 2026, released earlier this month by the Canadian Intellectual Property Office (CIPO), shows solid growth in industrial design filings in Canada, and a marked endorsement of the Hague System by foreign and domestic applicants. The top 6 non-resident filers of industrial design applications in Canada are based in the U.S., China, Switzerland, the U.K. and Germany. While the Hague System provides an international framework for filing design applications, the metes and bounds of protection and enforceability are left to domestic laws.
When it comes to enforceability, designers of 2D functional renderings of 3D functional articles may be able to benefit from overlapping IP rights - both industrial design and copyright protection. As IPKat readers know well, within the Berne Union copyright protects “authors” of drawings. In contrast, industrial design law protects “applicants”. The potential for overlap, and for conflict, is apparent when industrial designers use computer-aided design (CAD) software to prepare drawings. This is commonplace, particularly for compliance with project specifications. Such CAD software is evolving to integrate AI functionality. Who is the author of the design drawings? Can AI qualify as an “author” or “applicant” for registration of an industrial design (for the EU perspective see here)? Will the use of AI features integrated in CAD software negate protection that would otherwise be available to authors and designers?
The requirement for human authorship is open to question. The judicial response may differ under each law (copyright and designs, respectively) and in each market.
Consider the parallels to be drawn between use of traditional CAD software and use of emerging AI tools. The effect on design practice and ability to assert legal protection of drawings and three-dimensional articles based on drawings created through using tools which integrate AI is increasingly uncertain, particularly in jurisdictions which impose a registration requirement for industrial design protection, and not for copyright.
We assume that a designer who selects dimensions, arranges views, and annotates a machine drawing exercises skill and judgment that warrants copyright protection. The use of CAD software has not, in any reported decision we have located under Canadian law, displaced or negated a presumption of authorship.
In our view, a design may not be created by a robot under either copyright or industrial design laws. However, the statutory ambiguities surrounding “author” (of copyright), “applicant”, and “proprietor” (used in Canadian design legislation) make applying for industrial design registration worth a try. Definitions will likely require and receive judicial clarification as AI tools become more prevalent in industrial design workflows. Until that clarification arrives, it is prudent to identify a natural person as the author or applicant of any design for which registration is sought, to document that person’s creative contribution to the design process, and to benefit from overlapping intellectual property laws. This may be one of the reasons for the reported increase in use of the Hague System.
Conclusion
We foresee increased enhancement of AI features being integrated in software tools. We predict the potential for increased challenges to validity and enforceability of intellectual property rights on the basis of tools used in the process of designing the underlying 2D drawings. We recommend solidifying the intellectual property rights by drawing on both Canadian copyright and industrial design legislation as a risk reduction strategy when structuring a global marketing strategy. In our view, the practice of using computer-aided design tools will continue and should not negate protection despite enhanced integration of AI technology. Protection under copyright law is not rolled back due to advances in AI technology which challenge the notion of “authorship.” An “applicant” for industrial design protection may have a better chance of securing registration when CAD software is used than under copyright law because of the latter’s focus on authorship.
As the tools evolve to increase the integration of AI technology, and the definitions of “author” of copyright and “applicant” for an industrial design registration are construed by domestic laws, we may revise our views. In the meantime, we predict continued increase of industrial design applications in Canada using the Hague System.
We foresee increased enhancement of AI features being integrated in software tools. We predict the potential for increased challenges to validity and enforceability of intellectual property rights on the basis of tools used in the process of designing the underlying 2D drawings. We recommend solidifying the intellectual property rights by drawing on both Canadian copyright and industrial design legislation as a risk reduction strategy when structuring a global marketing strategy. In our view, the practice of using computer-aided design tools will continue and should not negate protection despite enhanced integration of AI technology. Protection under copyright law is not rolled back due to advances in AI technology which challenge the notion of “authorship.” An “applicant” for industrial design protection may have a better chance of securing registration when CAD software is used than under copyright law because of the latter’s focus on authorship.
As the tools evolve to increase the integration of AI technology, and the definitions of “author” of copyright and “applicant” for an industrial design registration are construed by domestic laws, we may revise our views. In the meantime, we predict continued increase of industrial design applications in Canada using the Hague System.
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