Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1541334
10 www.lexpert.ca Feature ment are among the most high-profile – and this trend isn't likely to taper off anytime soon. One of the most closely watched cases in this area is Doan v. Clearview Inc., a federal lawsuit a Quebec photographer filed in 2020 against a US company providing facial recognition and identification services. The previous year, the RCMP purchased licences to use Clearview, whose technology uses web crawlers to find and compile a large database of images from various sources. Clearview no longer oper- ates in Canada. In her proposed class action, Doan alleged that Clearview had infringed on her and other Canadians' copyrights by collecting their images for its database without their consent. A federal judge rejected Doan's bid to certify the class, which she framed as resi- dents or citizens of Canada who are the authors of the photographs collected by Clearview, or their "assignees or licensees in the copyright." According to the judge, Doan had failed to prove that there was an identifiable class – the proposed class members could not self-identify based on the class definition, and Clearview could not identify class members based on meta- data in its database. The judge rejected the other methods Doan proposed to identify class members. In July, the Federal Court of Appeal ruled that the certification judge's anal- ysis contained errors and remitted Doan's request to the lower court. Nicole Henderson, a partner at Blake, Cassels & Graydon LLP who specializes in class action and other complex disputes, told Lexpert that the allegations of the Clearview case are "consistent with the framing of a number of AI class actions that we've seen in the US so far," adding, "A big substantive issue that the courts will have to grapple with in dealing with these actions, if they move towards a merits determination, is whether the use of copy- righted work by AI companies, particularly for training large language models, consti- tutes fair use of that material or not." At least one other class action with similar copyright claims is pending in a Canadian court: In May, a Vancouver author named James Bernard MacKinnon filed a proposed class action against Anthropic, alleging the US-based AI company infringed on the copyright of Canadian authors by using their materials to train its large language models. This type of copyright claim also shows up outside the class action space. Last year, CanLII and a group of Canadian media companies – including Toronto Star Newspapers Limited, the Canadian Broadcasting Corporation, the Globe and Mail Inc., and Canadian Press Enterprises Inc. – made headlines when they respectively filed lawsuits against a small AI-driven legal tech company and OpenAI. In each case, the plaintiffs claimed copyright infringement by the defendants, who are accused of scraping the plaintiffs' copyrighted content to redistribute for profit or train AI tools. While both Henderson and McCoomb say they expect to see more copyright NOTABLE CLASS ACTIONS ALLEGING AI COPYRIGHT INFRINGEMENT Doan v. Clearview Inc. (filed 2020): A Quebec photographer sued Clearview, a US company that provides facial recognition and identification services by using web crawlers to compile a database of images. Doan alleged that Clearview had infringed on her and other Canadians' copyright by collecting their images without their consent. James Bernard MacKinnon v. Anthropic PBC (filed 2025): A Vancouver author filed a proposed class action against Anthropic, alleging the US-based AI company infringed on the copyright of Canadian authors by using their materials to train its large language models.