Copyright Minutiae: The Rule of the Shorter Term

A brass copyright symbol overlaid with a wooden ruler that has 'SHORTER TERM' engraved on it, placed on a table with old books and documents.

Image: Shutterstock (AI assisted)

Of course there are many mainstream copyright issues to write about, notably the whole issue of how copyright and AI intersect–and the ongoing dialectic between them–but to mark Canadian Thanksgiving weekend and Columbus Day (or Indigenous Peoples Day, if you prefer) in the US, I have allowed myself the indulgence of probing an obscure corner of copyright lore. I’m going down the copyright rabbit hole to explore the Rule of the Shorter Term, and its implications. Be warned, if you don’t want to know why Steamboat Willie is protected under copyright for longer in Germany than in the US, move on now. But if this sort of minutiae intrigues you, as it does me, read on.

As I commented in my book, “In Defence of Copyright”, copyright as a concept is simple and straightforward—but its application can be fiendishly complicated. This is because of differing national legal frameworks regarding what is copyright protected—and for how long—and what is not. As most of us know, copyright is governed by an international convention, the Berne Convention of 1886, updated on numerous occasions, with its main provisions now incorporated into the rules governing the World Trade Organization (WTO). The Convention provides common minimum standards and rules, but each country is sovereign when it comes to determining how those provisions are to be applied. Add to this different copyright rules in place over the years, especially in the United States, and you get some very deep rabbit holes to explore. One of these involves the “Rule of the Shorter Term”, which I will shorten to RST.

This rule, which dates to the earliest days of Berne, is an exception to Berne’s national treatment provisions. One of the basic principles of Berne, apart from the requirement that member states acknowledge copyright without any formal registration requirements, is national treatment. This means that an author from Berne member Country A should receive the same treatment in Berne member Country B as do nationals of Country B in their home jurisdiction. For example, works of Canadian authors should receive the same protection in the US that US works enjoy. By the same token, under the principle of national treatment, US authors in Canada receive the same protection as Canadian authors do, which may be different from the standard applied in the US.

National treatment is a common standard and is one of the basic principles embedded into most international trade agreements. To ensure there aren’t major discrepancies in protection, all Berne members are expected to meet the minimum standards of the Convention, as amended over the years, including (for most works) a term of copyright protection lasting for the life of the author plus an additional fifty years. While all Berne members apply this basic standard, some go beyond it, offering a term of protection that is longer. This is the case of the EU, the US, UK, Australia, and since the end of 2022, Canada.

However, not all Berne members offer this additional period of protection. This is where the Rule of the Shorter Term (RST) comes into play. It allows Berne members to apply, as a derogation from national treatment, reciprocal treatment with respect to the additional period of protection beyond the required minimum. When the RST is applied, authors of foreign works are denied the benefit of the extra period of copyright protection if their home jurisdiction does not offer protection of a similar duration. So, for example, during the years when the period of protection in Canada for all works, foreign and Canadian, was the life of the author plus 50 years, Canadian rightsholders in the EU only enjoyed a comparable period of protection (i.e. “life + 50”) in EU member states, notwithstanding the fact that EU authors enjoyed a period of protection that was 20 years longer in their home jurisdiction. Because the US, since 1998, also bases its period of protection for current works on life + 70, US rightsholders enjoy the same protection in EU member states as domestic EU rightsholders. In fact, a primary motivation for the extension of the US copyright term twenty-five or more years ago (as I wrote about here) was to ensure that US rightsholders received equivalent protection in the EU to that enjoyed by their EU counterparts.

One of the arguments cited for Canada adopting a longer term was that Canadian rightsholders would also enjoy the longer copyright term of “life + 70” in countries that apply the RST (like EU member states), bringing potential additional economic returns to Canadian creators and industries. The US, by contrast, does not apply the RST. It accords the longer term of protection for all works, regardless of what the home country of the author does. As for Canada, stay tuned. I am saving that for a subsequent blog post.

You can look at the RST from two perspectives. One is to view it as lengthening copyright protection in certain circumstances (Canadian works now enjoy longer protection in EU countries); the other is to shorten it (Canadian works received a shorter period of protection in EU countries when Canada itself had a shorter term). It all depends on your point of view. One result of applying the RST is that when a work has fallen into the public domain in its country of origin because its (shorter) term of protection has expired, it will no longer be protected in the second country that has a longer term. So, for example, if a work entered the public domain in Canada as a result of a shorter copyright term, it would also be in the public domain in the EU notwithstanding the longer term applicable in the EU. Clear? I hope so.

As noted above, the EU explicitly applies the RST. However its application by EU member states is subject to some limitations. Even though the RST rule generally applies, it can be overridden by other considerations, such as bilateral treaty obligations. I wasn’t aware of this until I stumbled across a blog post written by a German copyright professor on the inexhaustible topic of Steamboat Willie entering the public domain. According to Dr. Lukas Mezger, while Willie entered the public domain in the US on January 1 of 2024, he will be protected in Germany for many more years. This is contrary to what I wrote in a an earlier blog post. Mea culpa.

That post discussed copyright differences between Canada and the US, one of them being when works enter the public domain. Disney’s Steamboat Willie was one example. Willie, as was widely trumpeted in the media, entered the US public domain on January 1, 2024, but in fact had become a public domain property in Canada two years earlier. This was well documented in a blog by Donald Taylor, copyright officer at Simon Fraser University.

After explaining how and why Steamboat Willie had fallen into the public domain in Canada on January 1, 2022, (the reason being because Canada’s term at that time was based on the life of the author plus 50 years, and co-author Ub Iwerks–who outlived his co-author Walt Disney by five years–had died in July, 1971), Taylor added that in Germany, which has a term of life + 70, the copyright would not normally expire until 2042. However, he added the caveat that because of the Rule of the Shorter Term, Germany would follow the practice of the home country and let Willie fall into the public domain on the same date as applied in the US, January 1, 2024. But Mezger’s blog (How Mickey Mouse entered the Public Domain in 2024 – but not in Germany) sees it differently.

His argument is that the RST is subordinate to bilateral treaties, such as the 1892 Copyright Treaty between the then German Empire and the United States. That treaty gives US works national treatment in Germany, and vice versa. After the passage of the 1891 Chace Act which offered copyright protection in the United States to works of non-US citizens subject to certain conditions like registering and printing in the US, the United States signed a number of bilateral treaties that guaranteed reciprocal national treatment. So, Steamboat Willie is protected under German law until at least 2042, or possibly later depending on who qualifies as a joint author, based on the German rule of life plus 70 years, according to Mezger. There is relatively recent legal precedent (2006) for the continued application of the 1892 treaty, limiting the applicaton of the Rule of the Shorter Term when applied to US works in Germany.

This copyright trivia as to how long a work is protected in one country versus another, and whether the Rule of the Shorter Term applies, has actual practical consequences. In one well researched case, a publisher of public domain books in the US, Devault-Graves, sought to republish three of J.D. Salinger’s lesser-known essays that had fallen into the public domain in the US. This had occurred because Salinger had neglected to renew the initial 28-year term of US copyright that prevailed at the time (the 1940s). Instead of enjoying a further 28 years of protection from date of publication, the works had inadvertently fallen into the public domain.

The Salinger Estate (Salinger died in 2010) went to court in 2015 to try to stop the republishers, but finally conceded that the essays in question were indeed in the US public domain. Having secured victory in the US, Devault-Graves decided that if the works were in the public domain in the United States, under the Rule of the Shorter Term they must be in the public domain in a number of other countries (i.e. those applying RST rules). They selected Germany as their test case–an unfortunate choice for them–and sought a publisher there. The Salinger Estate opposed. A German court dismissed the Devault-Graves claim that the RST applied in Germany to the works in question, based on the 1892 bilateral treaty. The three Salinger essays remain protected in that country.

Apart from the inconvenient existence of the 1892 German-US Copyright Treaty that limits whether the Rule of the Shorter Term is applied to US works in Germany, there is another widely accepted “convention” referred to as “potential term” that can also affect the period of protection for US works abroad. Although it does not formally exist in the Berne Convention, it is a further limitation on the application of the RST to US works. Potential term refers to the full term of protection that a work would receive under Berne’s “life + 50” principle, absent any formalities. One of the basic tenets of the Berne Convention is that copyright should be granted without any formality, such as registration. Until the revision of the US Copyright Act in 1976, the United States required formal registration to establish copyright, plus also required a formal renewal within a strict time limit in order to access the permitted 28-year extension.

Before the registration requirement was eliminated, many copyrights in the US lapsed due to the low renewal rate. Others lost copyright because of some technicality involving registration. For example, if the © mark, plus year, was printed on the jacket of a book rather than inside the book, a copyright registration would fail. Given that Salinger’s loss of copyright in his three essays was the result of a technical oversight involving failure to renew, under the “potential term” concept, copyright protection should not be lost as a result of faulty registration; it should last (in Berne Convention countries other than the US) until the year 2060, 50 years after Salinger’s demise and for a futher twenty years after that for countries that apply the “life plus 70” rule, (assuming the longer period of protection was in effect in those countries in 2010, the year that Salinger died).

The irrelevance of US copyright cancellations regarding limits on the protection of US works abroad was confirmed in an exchange of letters between the US Commissioner of Patents, Robert Stoll, and the Deputy Director General of WIPO, Shozo Uemera in 1989 when the US joined Berne. The Rule of the Shorter Term (RST) would not apply in other Berne signatory countries when US copyrights were denied or truncated on the basis of fault or negligence in registration. That principle was upheld by a French court in 2009.

So there it is, a tramp through the copyright weeds. If you are a real glutton for punishment, and want to drill down further, I recommend “International Copyright: The Introduction”, by Paul Edward Geller. It is “only” 230 pages long.

Now, what about Canada and the RST? That will be the subject of a future blog.

© Hugh Stephens, 2026. All Rights Reserved.

Peppa Pig’s Global Reach, Assisted by the English Courts

Sign for Peppa Pig World featuring cartoon characters Peppa Pig, George, and their family against a blue sky.

Image: Shutterstock

Anyone with young children, or grandchildren, must be familiar with Peppa Pig, the anthropomorphic pig with the plummy British accent, surrounded by a porcine family and a range of other animals. Originally produced in 2004 by the British animation studio Astley Baker Davies, it was subsequently acquired by the Canadian media company Entertainment One, with control later passing to Hasbro in 2019 when the US company acquired Entertainment One. The animation style is simplistic, and the characters look as if they could have been drawn by young children. It is wildly popular globally, which of course makes it a prime candidate for knock-offs.

While there is no copyright restriction on producing a cartoon series based on a family of pigs, or other animals for that matter, there are certainly protectable elements in an original production that could result in litigation if infringed. This is precisely what happened regarding a remarkably similar, and also popular (48 billion views worldwide) production about a wolf family. The show, known as Wolfoo, is produced in Vietnam by the animation company SConnect, which bills itself as a “beacon of innovation”. Hasbro disagreed, and in 2022 brought suit in England for copyright infringement. Although Wolfoo is about a wolf family, and is voiced (in English) by actors with an American accent, its storyline and animation style is remarkably similar to Peppa. It looks plagiarized, to say the least, but plagiarism is not copyright infringement. What is copyright infringement is SConnect’s use of Peppa Pig sound recordings, including character dialogue and sound effects, in creating a competing product.

This interesting case was recently highlighted in its newsletter by Copyrightlaws.com, a top-rated copyright education site offering information and courses for those interested in learning more about copyright. Various legal firms have also written on the case but one of the most comprehensive accounts is from Simkins LLP in London, based on the summary judgment ruling issued in June of this year.

Initial complaints against SConnect were for passing off and copyright infringement, including breach of trademark, but were then narrowed down to charges of infringement of copyright in sound recordings. This was arguably the most straightforward to prove. At issue was not the copyright in the underlying sounds (which, for example, could have involved the voice actors), but the recordings themselves made by the Peppa Pig production company. The case had several interesting aspects. It depended on expert spectrographic analysis to identify the infringements (which proved irrefutable), the court allowed evidence based on “sampling” of a number of Wolfoo YouTube recordings rather than requiring proof that all Wolfoo productions before a certain date were infringing, and finally, the court’s injunction was applied internationally. With respect to this point, the Copyrightlaws newsletter noted that,

“The…injunction, which orders the removal of all existing Wolfoo videos (over 30,000) and prohibits the uploading of future videos, applies not only to the UK as a jurisdiction but also to the whole of the EU and to any countries covered by relevant international treaties and conventions. Additionally, the court stated that the injunction is also flexible enough to apply to any nations that might join such treaties and conventions in the future. This provides incredibly broad coverage for this kind of injunction…”

(The newsletter adds it should be noted that this conclusion is case-specific and does not necessarily set a precedent for future lawsuits.)

It is this international reach I want to focus on, specifically the “why” and “how”.

The “why” is based on the “principle of similarity”, which, under certain circumstances, allows for the application of UK law to acts committed in foreign jurisdictions if the foreign laws governing those acts are similar to the law governing such acts in the United Kingdom. In the Peppa Pig case, there were two elements of alleged copyright infringement, reproduction (which the court accepted had taken place in Vietnam) and communication to the public, which in addition to the UK took place widely, (the EU, US, Canada, Bangladesh, Ghana, Hong Kong, India, Indonesia, Malawi, Malaysia, Malta, New Zealand, Pakistan, Singapore, Taiwan and Thailand were specifically mentioned). The defendant’s position was that since copyright laws are of national origin, and differ from country to country, British law and an English court ruling could not apply outside the UK, and moreover, the claimants (Hasbro) had not proven infringement under any foreign laws.  

This argument failed. The court did not directly apply British law to jurisdictions outside the UK. Instead, it applied British law to infringements that–although they had taken place outside the UK–damaged a claimant that was registered and did business in Britain.  A remedy for these damages could be widely applied because, based on the principle of similarity, all the jurisdictions in question had similar laws (with respect to infringement of the communication right), according to the English court. This included the EU, since the UK had aligned its copyright legislation with EU standards prior to Brexit. As for other countries, they adhered to relevant international conventions, such as the 1961 Rome Treaty and the World Performances and Phonograms Treaty (WPPT) which required them to protect such rights.

The location of where an infringement occurs is important with respect to judicial jurisdiction as Getty Images learned when it brought a copyright infringement case against Stability AI in the UK. While Getty proceeded with the case to mixed results, it dropped its primary copyright claim against the AI company because it was evident that the training (i.e. reproduction) had taken place outside the UK. The location of the AI servers where the reproduction takes place is not a definitive jurisdictional factor, however. In the case of Toronto Star v OpenAI, the Ontario Superior Court determined it had jurisdiction to hear the case despite the fact that the actual unauthorized reproduction (copying) took place outside Canada. It so ruled because there was a real and substantial connection between the nature of dispute, the parties concerned, and the jurisdiction of the court. For example, OpenAI does business in Ontario and its terms of service for Ontario users constitute an Ontario contract.

In the Peppa Pig case, the English court exercised jurisdiction because some of the alleged infringement (communication to the public) had taken place in the UK and a UK entity was pleading damages. The court determined that UK consumers were “targeted” because (among other factors) no attempt was made to geoblock UK viewers, and Wolfoo programs contained UK advertising. The defendants argued that Wolfoo was aimed only at US and Vietnamese audiences. Having established that it had jurisdiction, the court then extended its remedy in the form of an effective global injunction.

So much for the “why”. What about the “how’? How can an English court impose its decision on a Vietnamese company operating in multiple international jurisdictions? First, SConnect has assets in the UK which could be in jeopardy if it does not comply with the injunction, as the company would be in contempt of court. More significantly, there are practical distribution considerations. Wolfoo is largely distributed via YouTube, owned as I am sure everyone knows, by Google. And although Google/YouTube is not named in the injunction, it is not going to stick its neck out for a company like SConnect and thumb its nose at the English court, for the obvious reasons that it also has major commercial interests in the UK. That is not to say that Google would not resort to litigation to prevent what it saw as extraterritorial reach by a foreign court  (see, for example, the Equustek case in Canada here, here, and here).  That case went to the Supreme Court of Canada. But in the end Google lost—and complied.

SConnect claims the UK court decision will not affect its future development of the Wolfoo brand, despite its compliance with the injunction. If so, the company will need to move forward on the basis of true innovation, not free-riding and infringement. Peppa, the porcine snorter has demonstrated her global reach, not just in popularity among young children in many different cultures, but even when it comes to slapping down an errant wolf.

© Hugh Stephens, 2026. All Rights Reserved.

A Misty Halifax Morning @ Trident Booksellers and Café

Interior of a bookstore featuring wooden bookshelves filled with various books, an antique clock stand, and a small reading area with chairs and tables.

Photo: Author

It’s a misty, coolish Monday morning, and I am sipping a cappuccino at a table in the Trident Café, technically Trident Booksellers and Café, on Hollis Street, Halifax, NS. We are just a block or so away from the harbour and its spectacular four-kilometre boardwalk. A soft cantata breaks the silence along with muted keyboard tapping from several people, including me, studiously staring at their laptops. I am surrounded by shelves of books, most of them well-read. There could not be a more conducive atmosphere for creativity. The barista working the espresso machine, herself a published author she tells me as she pulls one of her works from a shelf, explains how it all works. Someone arrives early to do the baking (there is a full kitchen at the back of the store) so the offerings, both gluten-free and “regular”, are always fresh. As I glance around the two rooms, one with a few tables hidden in the stacks, the other more café-like, I take in the posters for upcoming activities; a book club, an improv night, a musical duo and, naturally, a book launch. What a great place to do it.

Trident has been in business for over 30 years and seems to fit in perfectly with the neighbourhood, which is a mix of old wooden homes, aging brick buildings and some new chichi residential blocks that nevertheless fit into the streetscape. The Westin Nova Scotian, built in the style of the grand old Canadian railway hotels by Canadian National Railways (CN) in 1928, is within sight as is the Halifax Railway Station. This is the end of the line for VIA Rail’s transcontinental service, remarkably still running to this day from Vancouver to Halifax, via Toronto and Montreal. The hotel, which served as a casino and then university dorm in the 1980s after CN offloaded it, was almost demolished but saved when Westin took it over. Nearby is the beginning of the harbour boardwalk, and the Canadian Museum of Immigration at Pier 21, Canada’s equivalent to Ellis Island. While Halifax is still a terminal for passenger ships (I can catch a glimpse of a Norwegian Cruise Line colossus towering over the waterside buildings), immigrants today arrive by plane.

Back at Trident, I browse the eclectic collection of used books; cooking, Buddhism, travel, fiction and non-fiction. Trident offers a few new books in partnership with the University of King’s College bookstore. Kings, which dates back to 1789, is the oldest chartered university in Canada and the oldest English language university in the Commonwealth outside the UK. (Laval University in Quebec City predates it by about 130 years but did not get a charter until fifty years after Kings). King’s is now affiliated with Dalhousie University, est 1818, the largest and most intensive research-oriented university in Atlantic Canada.

The presence of Dalhousie, along with three other universities in addition to King’s, cement Halifax’s reputation as a centre of learning. Along with its New England-style architecture, this is another similarity it shares with its southern cousin, Boston, MA. It was from Boston that a fleet of 170 ships evacuated British troops and Loyalist civilians to Halifax in March 1776 after a prolonged siege by George Washington’s Continental Army. The Halifax Citadel, originally built in 1749 to protect against a French attack was subsequently rebuilt and strengthened in light of ongoing tensions with the new republic to the south. Halifax is also linked indirectly to the expulsion of the Acadians from the nearby Annapolis Valley, an event I wrote about last year. Governor Cornwallis, based in Halifax, ordered their deportation because of suspicions regarding their loyalty and their unwillingness to swear allegiance to the British Crown. At least that is one interpretation of “the facts”. The wounds are still raw.

That’s the general background to the establishment of Halifax, where Trident Book Café is located. It seems to perfectly reflect this historic city and its neighbourhood, offering food for the body and food for thought. The next time you are visiting Halifax, as I was, why not drop in? I have written about how iconic bookstores have become tourist destinations in their own right. The Trident is one more good reason to visit this fascinating city.

© Hugh Stephens, 2026. All Rights Reserved.

The US-Canada Tariff War and the Creative Industries: More Woolly Thinking

A wicker basket filled with colorful skeins of yarn, featuring shades of blue, green, red, and brown, set against a grassy background.

Image: Pixabay

As the tit for tat imposition of tariffs between Canada and the US escalates, people in the creative industries on both sides of the border must be wondering where this will end. The latest to get tangled up in this web are knitters. Yes, knitters—of woollen sweaters, baby booties, nose warmers etc. A couple of weeks ago I wrote about the impact on Canadian artists, since various categories of original art– paintings, drawings, collages, sculptures and statuary, original prints and lithographs—are included in the “Section 338” fifty percent US tariffs imposed in retaliation for Canada’s retaliation, particularly the provincial bans on the selling of US liquor and wine. But also included in the long list of Canadian products hit by US import tariffs is the following; “Wool, excluding unimproved, finer than 46s, greasy, shorn, not carded or combed”.[i]

Well, you say, how does that affect Canadian knitters? Sheep farmers, yes, but knitters? Well, according to this Canadian Press story, it has a big impact because Canada has hardly any facilities left to transform greasy wool into yarn. As we know once upon a time, in the horse and buggy era, all sorts of things got done locally; slaughtering cattle, cleaning wool, churning butter, milling wood. Then, with industrialization, international trade and the era of specialization and transportation, local production tapered off and supply chains sprang up linked to locations where economies of scale made production competitive. Rather than processing wool close by, Canadian producers sent their raw wool to factories in the US to be processed. It was more cost effective to do so because these factories were large and processed a lot of wool from a wide area. With an integrated North American market, the cost of transportation was minimal compared to the efficiency savings. There were no tariff impediments to crossing the border. Once processed, some of the processed Canadian wool came back to be feedstock for knitters in Canada (some of whom then produced products for the US market). It is a classic example of how international trade is supposed to work. But with the imposition of US tariffs on raw wool, Canada’s wool industry is now realizing the need to be more self sufficient. In the interim, Canadian raw wool is being sent to Europe or China for processing. Who wins? China. Who loses? US mills that formerly were processing Canadian wool and then exporting it back to Canada. And this is the tariff that is supposed to be punishing Canada! Talk about woolly thinking.

When governments start untangling supply chains, combing through protectionist options and ramming through changes, things begin to unravel. Having had the wool pulled over their eyes by the seductive siren of protectionism, they should have every reason to feel sheepish when they see the result of their actions. OK, enough puns. This is serious business. Not only is knitting a creative industry, sometimes on an industrial scale but also at an artisanal level, it is also related to copyright because of the intellectual property behind the patterns. In fact, I wrote an entire blog post on knitting patterns and copyright theft a few years ago.

The Trump administration has based its trade policy on forcing repatriation of production back to the US through the imposition of tariffs on imports. I don’t need to repeat the judgment of just about every economist in the world, except for Peter Navarro, who argue this is self defeating. The cost of import tariffs will be borne by US consumers, as is becoming increasingly evident. The disruption of efficient supply chains will hurt US manufacturing and US workers. This is an argument put forward by the auto industry where North American supply chains have become increasingly integrated as a result of NAFTA and its successor, the USMCA/CUSMA. But even in an industry like wool processing, the impact of impeding mutually beneficial supply chains is revealing.

The only result of the US policy will be to force Canada to become more self reliant and to redevelop its own wool processing industry. This will cause job losses in the US and probably increase the price of processed wool in Canada. It may result in the effective transfer of some jobs from the US to the new (less efficient) processing plants in Canada, but Canada will have gained some jobs and at least Canadian knitters will have a reliable supply of raw product, not subject to the whims of whoever happens to be in the White House. This is the sovereignty or security argument for protecting home-grown industries in contrast to the comparative advantage/greater efficiency rationale for open markets. The former seems more important these days as a result of the US underming the global trading system through its unilateral actions.

In a sense, the example of the negative impact on the US wool processing industry from ill-conceived tariffs on Canadian raw wool is very similar to the position that Canada created when it announced retaliatory tariffs on Canadian imports of US seafood. The immediate effect would have been to put out of work a lot of people in the New Brunswick riding of US-Canada Trade Minister Dominic Leblanc. New Brunswick and Maine have long had a close trading relationship. Maine lobsters are harvested earlier because they mature faster, having grown in slightly warmer waters. When lobsters are ready to be processed, there is a glut of them. Processing capacity is stretched. The solution devised over many years is to ship many Maine lobsters to New Brunswick for processing because there is excess processing capacity at that time of year. The processed US lobster then comes back to US markets. Everybody wins. The Canadian government, in its zeal to send a message to US exporters that tariffs are a two-way street–and that consequently they should start putting pressure on the Trump administration to repeal tariffs on Canada–almost shot itself in the foot. The Canadian tariff, devised by bureaucrats behind a desk in Ottawa who had apparently not bothered to consult people on the front lines of the Atlantic seafood industry, was rescinded a day after it was announced. Both sides need to lower the temperature as people, including artists, knitters, crocheters, lobster processors and many others, are getting hurt.

There is another example of backtracking on retaliatory tariffs that I cannot help but mention. After threatening Canada with Section 338 tariff punishment, the Trump administration quietly rescinded the additional tariff it imposed on imports of Canadian toilet paper. Who says Canada has nothing that the US needs! If Canada is looking at ways to strike back, putting an embargo on the export of this crucial commodity would rub a lot of US consumers the wrong way. But would it wipe away the damage?

The first shot in this trade war was fired from Washington. So far, the Trump administration has managed to hit just about every US consumer, US workers in car assembly and parts plants in the US that rely on an integrated North American industry, and now apparently workers in US mills processing raw wool. Of course, it has also hurt Canadian workers and producers, which was the intention. The inevitable Canadian reaction has also inflicted its share of economic pain on Canadian consumers, and US workers. Under current leadership in the US, it is hard to be optimistic that this is going to change anytime soon. In the meantime, “frogging” (look it up) an industry that has been knitted together for decades is yet another example of the self-defeating economic policies coming out of the current US administration.

© Hugh Stephens, 2026. All Rights Reserved.

[i] For clarification, the term “excluding unimproved” means that the tariff line includes wool from “improved”, i.e. bred sheep (like Merino or crossbreeds) whose wool is used for textiles. “Unimproved” in terms of tariff definition means wool that comes from wild or native sheep breeds that have very coarse, rough, and uneven coats. The increased tariff targets wool from live sheep that has not been processed, i.e. washed, carded or combed.

AI Training and Copyright: It’s a Global Issue—and There is a Global Solution

Infographic titled 'AI Training & Copyright: How Jurisdictions Approach AI Training and Copyrighted Works' detailing various jurisdictions including the USA, European Union, Japan, South Korea, China, United Kingdom, Canada, and Australia. It summarizes their legal frameworks, approaches to AI training with copyrighted works, and key points regarding copyright considerations.

Image: Used with permission (Maryna Hryhorieva)

This striking graphic, created by IP lawyer Maryna Hryhorieva, is a great summation of the current state of play regarding the still very fluid issue of AI training and copyright. It compares how eight different regimes, the US, EU, Japan, South Korea, China, the UK, Canada and Australia, are addressing this thorny issue, and highlights the different frameworks used to determine what is legal and what’s not. Each is different with its own peculiarities. Navigating through them is not easy. What may apply in one jurisdiction will not apply in another. A use that is acceptable in Country A may result in an unfavourable court ruling in Country B. An AI company can decide to base its content use practices on the most AI-friendly regime in which it operates, staying onside in that jurisdiction, but then can still be found to be infringing elsewhere. Cross-border jeopardy is almost certain where an AI company wants to scoop up local cultural content, pitting it against determined rightsholders who will, among other things, invoke cultural sovereignty.

The essence of the issue goes back to the way in which international copyright law is structured. Each country sets its own rules, regulations and interpretations within a broad commonly agreed framework. That framework, based on the Berne Convention, results in common basic standards centred on some fundamental principles, incarnated in the famous “three step test”.[i] The result is a generally consistent pattern of protection for rightsholders but with some significant differences by jurisdiction, like duration of copyright protection for example. The same inconsistencies apply to data mining (or what I would call unauthorized content reproduction) for AI training. So, what is a poor little ol’ trillion-dollar AI developer to do? Guess what? There is a universally applicable solution. Can you guess what it is? I reveal all in the final paragraph.

First, let’s briefly summarize the chart.

The US approach is based squarely on litigation, letting the courts decide the parameters of fair use regarding the unauthorized taking of protected content for AI training. This case-by-case approach will provide case-by-case answers, depending on the circumstances, the judge in question and even the circuit within the US federal justice system in which the case is heard. A legal approach inevitably leads to risk and uncertainty. That is not to say that in the end, the US will not resort to legislation. Thee US Justice Department recently submitted a “Statement of Interest” in the OpenAI v New York Times case, stating that a ruling in favour of the Times and other news industry plaintiffs would “threaten US national security, give a competitive advantage to foreign adversaries”, and thwart “creative and scientific progress while hindering American prosperity”. The Statement of Interest tries to put its thumb on the scale of justice, weighing in in support of the OpenAI argument that its use of NYT content was “transformational”, and thus constituted fair use. The Court is under no obligation to accept this interpretation; its duty is to interpret the law as it stands. But if the DOJ statement represents the Trump Administration’s interpretation of the law, and that interpretation is not upheld by the courts, that potentially opens to door to legislative change, assuming that Congress can be convinced to act in the name of big tech. Either way, there is continued uncertainty.

The EU approach is based on a narrow text and data mining exception embedded in the Copyright Directive. Resort to the exception is limited in two ways; if rightsholders cannot opt-out, the exception is limited to scientific organizations and cultural heritage institutions for research purposes only. There is also a general exception that allows for commercial use but in this case, rightsholders can reserve their rights by opting out.

Japan is considered by many to have a very AI-friendly regime in terms of allowing copying for training purposes, but it is not as wide as many have claimed, as I pointed out in this blog posting a couple of years ago. South Korea is struggling with the issue, being whipsawed between AI developers promising the moon and its vibrant cultural industry. China likewise is still trying to determine which way to go. It does not have a text and data mining (TDM) in its law, nor does it apply a fair use doctrine. However, it has announced plans to deal with AI training rules through its copyright development plan covering the period 2026-30.

The UK has had several false starts. A TDM exception limited to non-commercial purposes only has been on the books for several years, but the Labour government tried to expand this by advocating for a regime that would allow AI developers to freely use copyrighted content for algorithm training unless rightsholders opted out. After a massive outcry and pressure from British cultural industries and prominent performers, the government retreated. Now Britain has gone back to the drawing board.

In the case of Canada, everything is up in the air. Canada has a fair dealing regime with no TDM exception. It has held several public consultations and is developing an AI strategy but has been very unclear about where the government comes down on the issue of freely using copyrighted material for AI training. Meanwhile several Canadian media outlets are suing OpenAI for copyright infringement. OpenAI lost its argument that Canadian courts had no jurisdiction in this case. Now the Canadian music collective SOCAN is suing AI music company Suno. While AI companies are arguing for a wide TDM exception in Canadian law, rightsholders are seeking to retain the current law and use it to protect their rights.

Australia on the other hand has spoken out strongly in defence of its cultural sector and has declared that it will not legislate a TDM exception. Australian Prime Minister Albanese has taken that a step further declaring that, “An artist’s creative endeavour is their work and their property. No company should use Australian books, music, art or news to build or train AI without the artist’s control. That includes the artist’s control of the price and value of their work.” What will happen next in Australia is unclear although some tech platforms continue to try to push various compulsory licensing regimes.

As you can see, the rules are diffuse and in flux. Frankly, it is all over the map. One thing seems to be clear. The push by the tech industry for widespread TDM exceptions seems to be stalling. The litigation route so favoured in the US is yielding uncertain results. Legal actions in fair dealing countries like Canada, the UK and Australia may bring varying results with complex rules governing applicability of judgements. All this leads to greater uncertainty, and costs. However, as mentioned above, there is one universal remedy, one that transcends all the jurisdictional issues and conflicting interpretations. It is called voluntary licensing.

Voluntary licensing between rightsholders and AI developers eliminates the jurisdictional problems, assuming the agreements are structured to provide wide coverage and indemnity. With a voluntary licence, it doesn’t matter if there is or isn’t a text and data mining exception, or if the use is for commercial purposes, or if the use is sufficiently transformational. It doesn’t matter whether the AI developer is truly “enjoying” (accessing the essence of the content), as in the case of Japan. Some jurisdictions have toyed with the idea of a compulsory licence, as in India, but not only has this been opposed by both rightsholders and the AI industry, it is jurisdictionally bound. Voluntary licences deal with this issue and, if properly structured, remove the hazard of conflicting jurisdictional rulings.

While it is not always easy to reach such deals, as the OpenAI v New York Times case illustrates, it is surely better and less costly than the alternative of endless litigation. This is why it is becoming the preferred solution. More and more licensing agreements are being negotiated across the full range of copyrighted content, including audio-visual, music and publishing industries for AI training and use. Voluntary licensing is a global solution–but it requires AI companies to recognize the value of the content they want for training, and to accept the right of creators to control the use of their content. If it requires a willing buyer, it also requires a willing seller and while not all rightsholders will be willing to sign a licensing agreement, the holdouts will be the exceptions if fair deals are offered. It is a far better solution for both sides, AI developers and rightsholders, than endless litigation or constant lobbying for (or pushing back against) legislative change. It’s a global solution to a global problem.

© Hugh Stephens, 2026. All Rights Reserved.

[i] Any exception must satisfy three requirements: (1) Limited to certain special cases:. i.e. the exception must be narrowly defined and clearly circumscribed, rather than acting as a broad or general exemption; (2) No conflict with normal exploitation: i.e.the use must not interfere with the ways the copyright owner routinely makes money or manages the market for their work; (3) No unreasonable prejudice to legitimate interests of rightsholders, i.e. the use must not cause unfair or excessive economic or legal harm to the author or right-holder

Slapping a Fifty Percent US Tariff on Original Canadian Art—and Renaming Bodies of Water: That’ll Teach Those “Nasty Canadians” a Lesson

A humorous and surreal image depicting a group of geese with cartoonish hairstyles resembling Donald Trump's, standing on a grassy area near a body of water, some holding guns.

Image: Truth Social

Nova Scotia mixed media artist Chris Warburton Hulme, (whose motto is “Empowering Women Through Art”), produces prints, bookmarks, cards, stickers, notebooks etc. based on her original art. According to this CBC report, Warburton Hulme will no longer be selling to her US customers out of principle because she believes that works of creative expression should not be at the centre of a tariff war. Even if she didn’t have such scruples, her US market probably dried up in any case, as all her work just got 50 percent more expensive in the US as a result of the Trump administration’s imposition of retaliatory tariffs on a range of Canadian products. In the case of art, unless they are more than one hundred years old, the new tariff applies to paintings, drawings, collages, sculptures and statuary, original prints and lithographs and, for good measure, anything (art or otherwise) made from tortoise shell, whalebone, horns, antlers, hooves, nails, claws and beaks. That will stem the flood of deer hoof rattles flooding in from Canada! The tariff being applied is based on a legal measure that has never before been used, Section 338 of the US Tariff Act of 1930. That Act established what are commonly known as the infamous Smoot-Hawley tariffs that resulted in deepening the Depression and causing a severe rupture in international trade before the Second World War.

This US retaliation is in response to Canada’s retaliatory actions taken against the original imposition of US tariffs on a range of Canadian products entitled to tariff-free access under the trilateral trade pact, the USMCA (referred to as the CUSMA in Canada). The US overrode its market access commitments in the USMCA by invoking the pretext of “national security”, a self-judging loophole that is part of the agreement. As a result, the US imposed tariffs of up to 50% on Canadian steel, aluminum, and copper, 25% on cars and wood products including such key national security items as upholstered furniture, vanities and kitchen cabinets, and 10 percent on lumber on top of existing duties, bringing the total tariff on Canadian lumber to the range of 30 percent. Lumber exports to the US from Russia pay less duty. Canada had the temerity to retaliate against this treatment, leading to the present situation. The US position is that not only is it entitled to erect import barriers into its market, at the same time it is equally entitled to demand duty free access to other markets. If you don’t agree to this, the US will inflict pain on you targeting, among others, Canadian print makers and antler and bone carvers. Watch out! Worse is to come.

If that doesn’t bring those “nasty Canadians” to heel, Donald Trump has another ace up his sleeve. Renaming. For starters, he signed an executive order renaming Lake Ontario, the name by which it has been known for approximately 400 years, to Lake America. Where is Lake America? You’ll have to ask the President, but in case you are in any doubt he posted this bizarre video showing him replacing a Lake Ontario sign with one saying Lake America and then doing some sort of victory dance. It is truly distressing—and frankly sad—to see the President of the United States, enabled by the sycophantic clique surrounding him, behaving like a spoiled adolescent. Sorry, that’s unfair to spoiled adolescents who could be forgiven for not knowing any better. This puerile behaviour could be ignored if it wasn’t so dangerous and harmful for the longstanding economic and political relationship between the two countries that share the largest part of the North American landmass.

After the US began enforcing the Section 338 tariffs following the last-minute implosion of the trade talks that were taking place because of the 338 tariff threat, Canada announced yet another retaliation list. One wonders about its efficacy, although it is good domestic politics to be seen to be standing up to threats. While Canada can impose some selective pain on US exporters, it cannot really hurt the US economy. Trump’s widespread tariffs on imports, not only from Canada but from just about everywhere, are taking care of that. While designed to put some pressure on US exporters, the Canadian tariffs are also apparently intended to help Canadian producers–who now have their access to the US market impeded–by providing them with protection against directly competing US imports. Original art has in fact not been targeted by the Canadian tariffs; putting a reciprocal tariff on US deer hooves, lithographs or sculptures probably wouldn’t make much difference to Canadian artists anyway. One result of the Canadian countermeasures will be to increase the price of products imported from the US, so Canadian consumers will be the ones taking a hit. Mind you, the mood of consumers is already very much behind purchasing locally made products, but generally the retail end-user is unable to identify intermediate inputs. It is overly simplistic to slap a “Made in Canada” label on a product when in fact, there are relatively few products made exclusively in Canada. Perhaps Chris Warburton Hulme’s products qualify.

One result of the Canadian counter-action will inevitably be further US retaliation. Most Canadian provinces have in effect banned the import of US liquor and wine, not by imposing an import ban but by simply not placing orders for the product, and by not retailing it. Apparently, the US is mulling banning some Canadian products as a countermeasure. Maybe Canadian maple syrup will have to find new export markets.

Donald Trump could also up the ante on his renaming offensive, passing more executive orders to eliminate all those annoying references to Canada. Let’s get rid of “Canadian bacon”. (As a footnote to my US readers, no-one calls it Canadian bacon in Canada. It is simply just “back bacon”). Let’s rename the Canada goose. Trump seems to have a hate on for this noisy and annoying bird that tends to foul golf courses and playgrounds, judging by another inane post from the White House. Goose poo flown in from Canada. Almost as bad as wildfire smoke. Some have suggested renaming the Canada goose as the Donald Duck. Maybe the Daffy Duck would be more appropriate. Or, how about “Lame Duck”.

When will this madness end, and artists like Chris Warburton Hulme can get back to creating art without getting caught in a political crossfire? Probably about the time that Lake America fades into history. Lake America is impossible to find on Google maps in Canada, although its name recognition surged briefly when some official Canadian websites found, to their embarrassment, that the underlying settings for Google maps in Canada were set to a US API (Application Programming Interface), making Lake America the default setting. That was hastily changed. To stir the embers, Canada’s own resident clown, Ontario Premier Doug Ford (who has an unfortunate and canny ability to get under Trump’s skin), unveiled a large sign proclaiming, bilingually, “Lake Ontario: Now and Always”, as if anyone really needed to do this. Don’t take the bait. About the time the moniker Lake America disappears, the true name of the Gulf of Mexico will also make a comeback, although this US website suggests that Trump is having a tough time making Gulf of America stick. Perhaps the lyrics of Johnny Horton’s song (“We fired once more and they began to runnin’, On down the Mississippi to the Gulf of Mexico”) will not need to be rewritten after all.

The most recent infantile outburst is this post on Truth Social showing Trump (who probably can’t even skate—those darn bone spurs again) knocking down Carney (who played on the Harvard hockey squad, admittedly as back up goalie) in a supposed ice-rink confrontation. Doesn’t he have better things to do? The sad spectacle of the most senior elected official, and many non-elected cabinet-level officials of the United States, making complete fools of themselves through childish, meaningless social media posts and comments makes one wonder who is really in charge. Have the inmates now finally taken over the asylum?

© Hugh Stephens 2026. All Rights Reserved.

AI Training and Copyright Licensing: The Changing Tide

Sunset over the ocean with golden reflections on the wet sand and gentle waves lapping at the shore.

Image: Author (Tofino, BC)

Australian Prime Minister Anthony Albanese caught global attention in mid-July with his speech at the University of Sydney, “AI in Australia’s Interests”. That address, which outlined the Australian government’s approach to AI, included important statements regarding the work of Australia’s creative community, which Albanese declared is “not up for grabs”. Having previously ruled out the creation of a copyright loophole for AI training, known in the trade as a “Text and Data Mining” (TDM) exception, Albanese went on to say that;

“Australian writers, musicians, artists and journalists must retain ownership and control of their work…No company should use Australian books, music, art or news to build or train AI without the artist’s control…of the price and value of their work. Anything less is theft.”

Bravo! Hopefully this means what it says, that rightsholders will retain control and receive compensation on their terms if their works are used for AI training, even though there is still strong pressure from segments of the AI world for Australia to loosen its terms of copyright protection. Anthropic is dangling a $20 billion carrot in the form of potential investment in AI data centres in Australia but only if there is a copyright carve-out for AI training. One Anthropic proposal was for the creation of a $350 million fund to compensate rightsholders, paid for by the AI industry, but it was unclear how this would operate or if rightsholders would be required to opt-out if they didn’t want their content used. For creators to be able to control their work within the accepted framework of copyright law, they must have the ability to accept or reject voluntary licensing and not be required to opt-out of a compulsory scheme where what they receive is decided by bureaucrats on the basis of limited contributions to a common fund. The commitments that Albanese made in his speech indicate that voluntary licensing is the preferred solution, but the issue remains under study (hopefully this will be done with full transparency, following suggestions earlier this year of secret dealings on this critical matter of public interest). Nonetheless, the bright line that Albanese has drawn with regard to creatives retaining control of their work is welcome and will hopefully encourage other governments who are developing AI policy to do the same.

As noted, the AI industry never gives up. Having been clearly told that creators should retain control over how their work is used, and be paid for that use, some companies are floating new objections based on the supposed “long tail” argument. “Long tail” is the term being used to describe the many small rightsholders who create and therefore (in theory but maybe not in practice) control use of their content, as opposed to larger rightsholders such as major publishers of books, journals and newspapers, music labels, film studios and so on with whom it is easier to engage in licensing discussions. The argument is that, even if the AI industry wanted to license the content that it uses in training (by no means a given with every company), it can’t possibly deal with the myriad of small rightsholders. Elsewhere, some AI developers have dealt with this problem by ignoring it, simply helping themselves to whatever content they wanted, without licence. In some cases, they even used pirate libraries as sources, almost daring rightsholders to bring legal challenges. Anthropic is a high-profile culprit that got caught doing this.

One idea currently being promoted by Anthropic is to create a statutory licence that would be restricted just to Australian rightsholders, with funds directed only to them. It is hard to see how this is a viable solution. Not only would it violate international norms that Australia has committed to by discriminating against foreign rightsholders in the Australian market, if it is applied universally, it would lead to a stream of royalties flowing out of Australia while doing little to help local creators. Elsewhere, various non-statutory collective licensing schemes have been proposed to deal with the issue of small rightsholders, although to date none have emerged that provide true one-stop shopping for AI developers. But a compulsory licence cannot be the solution. These large companies with stratospheric valuations (especially those getting ready to launch an IPO!) surely have the wherewithal to find ways to license the content they use and will continue to use as they develop and refine their AI models.

For the past several years the tech community has followed the “better to ask for forgiveness after rather than permission before” approach when appropriating copyright protected content to develop AI platforms. The inevitable result has been a spate of lawsuits, most of which are still ongoing, with results varying from case to case and jurisdiction to jurisdiction. A second front opened by some AI platforms has been to attempt to weaken copyright protection through legislation, focussing particularly on the introduction of a broad TDM exception. As a result of this push, many countries began studying whether to bring in a TDM carve-out, or if they had a narrow TDM exception (e.g. for non-commercial research purposes) whether to widen it. From the perspective of rightsholders, it began to look like a race to the bottom. Now, the tide seems to be changing. Albanese’s speech is a good example of the shift, but Australia is not alone in taking a more considered and balanced approach.

Hong Kong is a case in point. Hong Kong has always had one of the stronger intellectual property regimes in the region, a source of competitive advantage. But under the pressure of blandishments from the tech community, it issued a consultation paper in 2024 that, among other things, proposed a TDM exception–including for commercial purposes. When the paper went out for public comment, the predictable suspects urged adoption of a TDM provision while rightsholder groups argued that existing law and voluntary licensing was suitably flexible to handle issues arising from new technologies. Now the Hong Kong Government has concluded there is no pressing need to pursue a TDM exception through legislation. The priority will be to issue best-practice guidelines grounded in the existing legal framework, providing reference for stakeholders on copyright protection and infringement liability relating to AI-generated works. Voluntary licensing arrangements between copyright owners and AI developers are seen as the answer.

I noted in a blog post last year that the TDM issue was under review in a number of Asian jurisdictions, including India, Malaysia and Korea. In India, a government-commissioned working group recommended a compulsory licence scheme that displeased just about everyone, from the tech gurus to India’s cultural creators, although to the working group’s credit, it also rejected a TDM exception for India. The lack of momentum for this idea means that current copyright legislation continues to apply, albeit with Indian courts starting to weigh in, (but unfortunately in ways that could potentially undermine India’s fair dealing balance). Malaysia continues to attract significant investment from the hi-tech sector despite not yet adopting a TDM exception, in stark contrast to neighbouring Singapore. In Thailand, which has one of the richest cultural traditions in Asia through its audiovisual and music sectors, the tech sector has been agitating for introduction of a TDM, as elsewhere. This would put at risk a content sector that is a significant contributor to national GDP as well as driver of the all-important tourist industry.

Korea is another country where the AI industry is bringing pressure to bear. Korea’s unique and thriving culture is one of its national assets, along with a domestic innovation and hi-tech industry that is second to none. To allow offshore tech companies to plunder Korea’s rich cultural tradition would be a shortsighted and shameful sellout. But neither Korea, nor Thailand, nor Malaysia, India or Australia are opposed to the development of AI, and all want their share of the benefits of this emerging if not already emergent industry. All recognize that AI development requires vast amounts of content, including the kind of high-quality content produced by their respective creative sectors.

There is a proven path for the AI industry to access this rich content. It is called voluntary licensing, and it already exists within the established four corners of copyright law. Moreover, it is increasingly becoming the solution as AI developers finally come to realize (a) that it is not worth risking the viability of the company on an unpredictable lawsuit that could result in crippling damages (or as in the case of India, years of court trials) and (b) equally important, their global push to get a legislated copyright loophole through TDM provisions in national law is going nowhere. In fact, the TDM tide is receding, as the examples of Australia and Hong Kong clearly show.

As the TDM tide goes out, the voluntary licensing tide flows in, floating the boats of both the creative and hi-tech sectors. Australia hoisted the first signal, but other jurisdictions in Asia seem ready to follow.

© Hugh Stephens, 2026. All Rights Reserved.

How Did Content Discoverability Become a Third-Rail Issue for Canada-US Trade Talks?

A person holding two circular objects resembling binoculars, with red and white Canadian flags displayed on each lens.
Image: Shutterstock.com

US Trade Representative Jamieson Greer declared in his interview with the CBC on August 26 that the issue of discoverability of Canadian content, especially French language content, was not a dealbreaker. It had only been “highlighted” by the US as an issue. “There is no way we would let a good deal go by for something like this”, he is reported to have said. Canada-US Trade Minister Dominic Leblanc immediately jumped on Greer’s comments saying in a social media post that he welcomed the fact the US is withdrawing its positions on the French language and Canadian culture. On this basis, said Leblanc, there might still be the possibility of reaching a trade agreement after all. Talk about putting words into someone else’s mouth! Greer said nothing of the sort, although if both sides want to get back to the table at the earliest opportunity (and it is not clear that they do), then this would help provide a pretext.

While Greer said the US only “highlighted” the discoverability issue, this was a clear admission it had been put forward as an irritant the US wants resolved. You don’t raise an issue at the negotiating table only to say it wasn’t really important after all. Perhaps it was put there to be traded off for something else, or to keep Canadian negotiators on the defensive? Perhaps Greer is indicating that USTR only kept discoverability on the list to mollify the US streaming industry? But whatever the motivation, apparently this issue kept showing up in the list of US demands right up to the time the Canadian negotiators walked away.  It seems that the streamers, having swallowed the Carney government’s announced intention to reverse the CRTC’s decision requiring them to “contribute” 15 percent of annual revenues to Canadian production, smacked their lips, burped and said “More”. This may have been a strategic mistake as it allowed the Carney government to wrap itself in the flag and “stand up” for Canadian culture.

If discoverability wasn’t an issue, why put it forward? By the same logic, if French language labelling (Quebec’s Bill 96) wasn’t an issue, why was it up for negotiation? While French-language labelling requirements weren’t included in this year’s list of trade barriers published annually by USTR, Bill 96 was included in 2025. This year, Quebec Bill 109 which addresses the French language discoverability requirements was explicitly listed under “Service Barriers” in the Canada section of the National Trade Estimates. (As an aside, Bill 109 may intrude on the federal broadcasting power, well established in law for decades, but that is another issue for another day). Either these issues were on the list of “trade irritants” the US wanted resolved, or they were not. It is pretty clear that they were. And it is also clear that USTR has not “withdrawn its position”.

Putting discoverability of French language and other Canadian content on the list of US negotiating objectives makes this a third rail issue because of how it touches on sovereignty and the right to cultural expression. The Online Streaming Act, under which both discoverability and contributions to Canadian content fall, is consistently listed by the US as a trade issue. Until now, the mandatory payments (aka “contributions”) were the key sticking point but, as Michael Geist has commented, recent developments seem to have shifted the focus of US discontent away from payment for production of Canadian content to the promotion of such content. I am not convinced the payment issue has entirely gone away, however. The government has yet to issue a directive to the CRTC instructing the Commission how to modify its implementation of the Online Streaming Act, other than stating in press reports and a court filing that it will not be pursuing statutory contributions of 15%, or the earlier announced level of 5%, based on annual revenues. Culture and Identity Minister Miller has said publicly that the streamers will still be expected to “reinvest” in the production of Canadian content. Meanwhile the Canadian cultural community is urging the government to rollback its previously announced reversal of the CRTC mandated contributions. Canada may still hold some cards.

With regard to discoverability, what is its purpose, how will it work, and why is it so important both to Canada and to the US industry? Discoverability relates to promoting an awareness of certain types of content, in this case Canadian content or French language content, so that consumers can decide if they want to give certain content a try. The CRTC definition is as follows;

“…content and services are discoverable if they are made available and visible to audiences, including when an audience member is not actively seeking such content and services.”

Discoverability applies to both audio and video streaming service, for example, Spotify and Netflix. The contribution framework announced by the CRTC, now suspended, applied the initial 5% “down payment” contributions to both music and video streamers although the second tranche that raised the contribution to 15% applied only to the video streamers. Perhaps the CRTC would have dropped the second shoe on the audio streamers too, but they didn’t get around to it before the government intervened to roll back the mandated contributions on the AV streaming industry.

It is true that video streamers like Netflix already have a button to access Canadian content, so if a consumer really wants to watch a Canadian show, they can go there first. But most consumers, including me, don’t want to watch shows just because they are in some way Canadian. We want to watch shows that interest us. If a show that interests me happens to be Canadian, that might pique my interest, but I am unlikely to search it out. Therefore the requirement is that Canadian content be presented as part of the proposed options within genres that viewers prefer, i.e. no “Canadian silos”. There is no prescription as to how this will be done. It could be along the lines of the “Produced in Canada” labels that Loblaws has just been pressured into putting back on Canadian produced food, it could be an animated beaver waving at the viewer from the corner of the frame, (me, me, watch me) or it could be something more subtle, like prominence of display. We will have to wait and see. Discoverability has come into play because the old world of content quotas is passé. Most consumers today aren’t passive receivers of content that is served up to them; they are actively engaged in deciding what they consume by choosing from the menu. There is choice. What discoverability seeks to do is inform, or some might say, influence that choice.

If discoverability is only about surfacing Canadian content rather than requiring production or airing of Canadian content, then why are the streamers so opposed?  One reason might be that they don’t have that much Canadian content on their platforms and if they are required to constantly highlight new Canadian productions, this might require more investment in acquiring or producing Canadian content, especially if there are restrictive definitions of what qualifies as Canadian under CRTC rules. More on this point below. The second objection is that imposing discoverability will screw up their algorithms (and cost them money). I am not a technical guy but frankly I don’t buy that. If an algorithm can be tweaked to serve up differing content based on one’s user profile, I don’t understand why it can’t be programmed to make Canadian content discoverable. I do understand why the streamers–who operate in many countries–don’t want to do this. But if they have to subtitle in Italian in Italy, perhaps in Canada they may have to tweak the algorithm and the operating system for francophone consumers, both in terms of discoverability and user interface.

Other than having regulations that require a Canadian production to be discoverable, how else could Canadian content stand out? Simple. By being good. The sad result of decades of subsidization of Canada’s TV and film industry is that it has produced a lot of second-rate content that meets Cancon criteria, but which almost no-one wants to watch. You can fill the airwaves with Canadian content, but you still can’t compel audiences to watch it. Of course there are exceptions, but as Peter Grant pointed out in a guest column on this blog a couple of weeks ago, it is an open question as to whether Canada can produce a global hit. Those engaged in the industry—writers, directors, filmmakers—may argue that the structure of the industry (lack of financing) and English Canada’s cultural domination by its southern neighbour means the cards are stacked against producing a good quality, commercially viable Canadian product. Therefore, it is argued, government needs to step in to level the playing field (or tilt it). This has happened for many years, yet the reality is that more is invested in production in Canada (as opposed to Canadian production) by US producers than by all sources of Canadian funding combined, as this study documents. Will discoverability change any of this? Maybe yes, maybe no. Might be worth a try, and in an age where content quotas don’t work, there is not much alternative.

On the issue of streamer contributions, I noted in his CBC press interview that Greer said the Online Streaming Act (OSA) requires (at least until further notice) that US streamers “fund their competitors”. The US regards this as unfair. It is also a misinterpretation and mischaracterization. The main competitors of the big US streamers in Canada are other US streamers. There are Canadian streaming services against which they compete to some extent, like Crave or CBC Gem, but Crave is a “frenemy” because it relies on purchased US content for much of its core programming, and Gem is not going to put any US streamer out of business. The perception that the streamers are required to fund their competition comes from the way their contribution moneys are used.

Under the OSA, as interpreted by the CRTC, the funds contributed by the streamers (and Canadian broadcasters) are allocated in a variety of ways, but none of them are fully controlled by the contributors. There are all sorts of conditions and handcuffs. Among these is a requirement that large online streaming services will, “be required to invest in production partnerships with Canadians that hold the majority of the copyright in the Canadian programming”. In other words, the streamers are limited in their ability to invest in and produce their own Canadian productions to meet their spending obligations. The copyright on the Canadian productions the streamers finance must be held by a Canadian and if the streamers want to exploit that production, they will need to acquire the rights through licensing. They might not be able to do so. For example, they might be outbid by a rival streaming service. This is what I think leads to the argument that they are being forced to fund the competition. If they could control their own productions while meeting Canadian spending guidelines, no-one could argue they were being forced to fund their competitors. I have no idea if lifting the copyright restriction would satisfy the streamers (after all, any business wants “more” and if they can enlist the services of their government to strongarm the other side, why not try?), but it is clear the current system is not working well and furthermore is an obstacle to increased production of Canadian content by the US streamers.

The Cancon system, which is very complex, is not designed to accommodate such a “radical” idea, but maybe as we try to find a way forward to ensure that Canada can promote its content, perhaps we can also find ways to ensure the streamers are incentivized to produce some of that content, as I have written about most recently here and here. This might also result in the content produced being something that Canadians and others will want to watch. Once they have discovered it, that is.

© Hugh Stephens, 2026.  All Rights Reserved.

This post has been updated to provide more detail on the nature of discoverability requirements as outlined by the CRTC.

The Collapse of Canada-US Trade Talks: Respite for Now

A graphic representation combining the flags of the United States and Canada, featuring the American flag with stars and stripes on the left and a red maple leaf on a white background on the right.

Image: Wikimedia Commons (Flanker)

As the Canada-US trade talks went down to the wire last week, working against the artificial deadline set by Donald Trump (with a three-day extension in order to finalize the “deal” he announced on social media, a deal that was about as final as the numerous deals he has announced with Iran over the Strait of Hormuz), I like many Canadians had a foreboding sense of trepidation. Was I worried that the two sides would not come to agreement? No, I was concerned that they would, and that the price of reaching that deal would involve unacceptable concessions by Canada.

Not only that, but the deal would also be about as solid as ice cream in a hot sun. The US would require Canada to change or repeal legislation while it would simply sign an executive agreement that could be rescinded at any time. And that is precisely what would happen next. Mark Carney referred to US commitments being written “in pencil”. One of the supposed US concessions as a result of this deal was agreeing to begin formal negotiations on USMCA/CUSMA renewal. Therefore, Canada’s last and best offer in the interim trade negotiation–that were a necessary attempt to avoid additional 50 percent retaliatory tariffs on a range of Canadian goods as well as to obtain a roll back of sectoral tariffs imposed by the US in violation of CUSMA on steel, aluminum, autos, and wood and wood products–would have become the starting point for US demands for “more” when the formal negotiations got underway. Having seen how little the US was prepared to concede in terms of existing measures, but more precisely how much they wanted for the minimal concessions offered, was surely a wake-up call for the Carney government.

Carney’s last-minute decision to walk away was clearly the right political move from a Canadian perspective, especially with several by-elections coming up in a matter of weeks. Opposition Leader Pierre Polievre’s prepared notes accusing Carney of selling out were quickly chucked aside while Poilievre scrambled to climb aboard the Team Canada bandwagon. Carney’s “elbows up” mantra that got him unexpectedly elected last year was starting to wear a bit thin after unilateral concessions to the US like the eleventh-hour abandonment of the long-planned Digital Sales Tax on large online platforms, a concession that achieved nothing. That said, it is easy to talk tough, but not so easy to accept the responsibility for the economic punishment that may result. Any responsible leader owes it to their constituents and businesses to try to resolve trade issues without resorting to confrontation and retaliation. Canada gave it a good shot this time around, but in the end the price to be paid was just too high. In part, we have Commerce Secretary Howard Lutnick to thank for that.

Lutnick, one of Trump’s billionaire appointments, along with presidential advisor Peter Navarro, is a firm believer in tariffs and in using tariffs to change established trading patterns. Inconvenient trade agreements that constrain this behaviour (such as the USMCA/CUSMA) are to be bypassed or ignored. Lutnick has a particular bee in his bonnet about the Canadian automotive industry, which he essentially wants to drive out of business. There is no question that auto assembly in Canada is dependent on imports of parts from the US and the export of assembled vehicles to US consumers. But the Canadian industry was not established to export to the US; it evolved that way on the basis of a bargain. It has been around for well over a century and was originally established to serve the Canadian market, protected by high tariffs from US imports. Over the years, US companies purchased the Canadian manufacturers, and the industry became more integrated, culminating in the 1965 Auto Pact. That agreement was rolled into the first Canada-US Free Trade Agreement, which morphed into NAFTA and eventually CUSMA. The essence of the deal was that for every vehicle imported duty free into Canada, the automakers had to build one vehicle in Canada. That vehicle might be sold into the Canadian market but could also be sent south to the US, duty free. It was an arrangement that worked well for both sides and has strengthened the North American industry, which needs all the help it can get in the face of Asian and European imports. But Lutnick and Trump don’t understand and don’t like this arrangement. “We don’t want cars made in Canada”, Trump is reported to have said. As the interim Section 338 (referring to Section 338 of the Tariff Act of 1930, obscure legislation resorted to by USTR to impose retaliatory tariffs on Canada) negotiations came down to the wire last week with discussions centering on a reduction in the 25 percent auto tariffs imposed by the Trump administration on Canadian assembled vehicles (these are already a violation of CUSMA terms), Lutnick and Navarro reportedly intervened to minimize the value to Canada of the tariff reduction by excluding medium and heavy trucks from the “concessions”. This was a move aimed specifically at hampering truck production in Canada, one of the few sectors where North American vehicles dominate in both the US and Canadian markets. Lutnick’s carve-out was enough to help tip the scales, forcing the Canadian side to walk away. Thank you, Howard. You inadvertently did Canada a service.

Had Lutnick not introduced this deal-breaker, Canada might have swallowed the poison. Ontario Premier Doug Ford was a key factor too. If the deal was not sufficiently good for the Canadian auto industry, he would have refused to put US booze back on the shelves of the LCBO, (the Liquor Control Board of Ontario), reportedly the single largest global importer of liquor and wine (although this is contested—Costco might be bigger!). Mind you, there were a couple of other deal-breakers on the table as well, which shows either how greedy the US negotiators were, or how little they understand Canadian realities. Surely anyone who haa studied a modicum of Canadian history would know that attacking bilingual labelling in Quebec and support for French language music through discoverability and other requirements is a total non-starter for any federal government. Quebec also has the SAQ (Société des alcools du Québec) card to play. The final deal-breaker cited by Carney in his news conference the day after the deal collapsed was an attempt by the US to constrain Canada’s ability to freely negotiate trade deals with third parties. It is worth noting that Canada already agreed to this with respect to China when it signed the CUSMA deal in 2018. (Article 32.10), but Carney stressed that Canadian sovereignty is not on the table.

In his explanation of the decision to walk away, Carney also cited the need to protect Canadian culture, although he was non-specific. There is no question that cultural groups and content industries in Canada, such as the press and Canadian content producers, were becoming increasing anxious they might be thrown under the bus. There were reports the US was targeting both the Online Streaming Act (OSA) and the Online News Act (ONA). The enactment of the ONA (aka Bill C-18) in 2023 resulted in Meta blocking the posting of (most) Canadian news content to Facebook and Instagram but led to Google agreeing to contribute $100 million annually to support Canadian journalism. Paul Deegan, CEO of News Media Canada warned earlier last week that if the ONA was given up as a bargaining chip in the trade negotiations, the impact on journalism in Canada would be “catastrophic”.

The threats to the future of the ONA in Canada are ironic given that Australia, which was the inspiration for Canada’s legislation, has just passed new legislation (the News Bargaining Incentive) designed to address the dodge employed by Meta in Canada. When Australia introduced its initial News Media Bargaining Code, Meta reluctantly went along with it and struck a number of content deals with Australian media. It subsequently announced it would not renew them as they expire. In Canada, Meta dug in and delisted postings from Canadian media (although there have been some controversial exceptions) in order to avoid being subject to the legislation that required them to reach deals with Canadian media to license content. To address this, the new Australian legislation imposes a 2.5 percent tax on the advertising revenues of the targeted platforms (Meta, Google, TikTok and LinkedIn) unless they strike agreements with news media providers. The tax would be paid into a fund accessible to local news outlets. The tax amount is higher than payments under the voluntary agreements the platforms are expected to reach, providing an additional incentive for them to reach or renew content licensing agreements. It would be hard to see Australia successfully pursue the goal of requiring the big platforms to contribute to production of the news content they use while Canada, which consciously followed the Australian example, retreats from this objective.

As for the Online Streaming Act, recall that in recent weeks the Carney government notified the CRTC that the foreign streamer contributions to the production of Canadian media and content mandated by the Commission will need to be revisited. Was the OSA part of the recently suspended Section 338 negotiations? No doubt about it. US Trade Representative Jamieson Greer in a midweek tweet congratulating Trump on the “deal” that was seemingly about to be finalized, said it would include “comprehensive market access for all American goods, economic security commitments, digital trade alignment, and many important provisions that will continue to protect our market and American workers…”

What “digital trade alignment” might include was not specified but there was speculation it could encompass a commitment to never introduce a DST, reversal of the Online News Act, data governance limits and limitation or elimination of streaming payments. Now, with the collapse of the talks, none of that will happen—for now. However, the 50% Sec 338 tariffs are now in effect and Americans will be paying much more for Canadian honey, salt and toilet paper, among other things, assuming those items will still be on US shelves.

Canada’s decision to terminate the trade talks last Friday really settled nothing, other than to confirm that the US goal is to bring the country fully into its orbit as a satellite state. Carney and Canadians are determined this will not happen and have cards to play. Those cards relate to the impact of Trump’s decisions on the US economy and US consumers, and the potential impact of these decisions on the midterm elections. Canada would do best to take its time and continue to try to find allies within the US. Whether the announced intention of retaliating against Trump’s Section 338 tariffs on a “dollar for dollar” basis is the right approach is another question, but the intent will be to inflict targeted pain on selected US export sectors in order to build pressure on the Administration. The provincial liquor bans were designed with this in mind and have been remarkably effective.

Eventually Canada and the US will need to get to the USMCA/CUSMA negotiating table. CUSMA is still in force notwithstanding the sectoral US tariffs that violate its provisions on specious “national security” grounds. It is a Congressionally approved treaty and unless renounced, which the Trump administration clearly does not want to do, it remains in force unless renegotiated. When renegotiated, and ratified by Congress, it will provide stronger guarantees of predictability than the back-of-the-envelope trade deals that Trump and USTR have been forcing on trading partners. However, if and when those negotiations take place, the issues that led to the collapse of the Section 338 talks will still be on the table.

Canada’s cultural and content industries don’t have the political clout of the dairy industry, which for decades has managed to put its self-interest before that of the rest of the economy and Canadian consumers, or the auto industry, but maintaining economically viable Canadian voices in media, broadcasting, film and literature is part of preserving sovereignty. How that is best done is the topic of ongoing discussion and debate. For now, the OSA, the ONA and Canada’s other digital legislation remains intact. The sector may have dodged a bullet for now but needs to remain alert. It’s never over until its over.

© Hugh Stephens, 2026. All Rights Reserved.

Count Binface or Lord Buckethead? A Comedic Copyright Controversy

A person sitting outdoors with a blue plastic container placed over their head, partially obscuring their face.

Lord Pailface

Copyright is a deadly serious business, as the AI company Anthropic found out when it was sued for copyright infringement and agreed to pay $1.5 billion to implicated authors, or as the online platform Afterlife discovered when it was ordered by a Canadian court to pay $20 million to plaintiffs for publishing unauthorized obituaries[i], but just like anything else there are times when copyright veers from the sublime to the ridiculous. One of the most prominent examples of this phenomenon was the so-called “Monkey Selfie” case, that I wrote about here. The recent byelection in Britain in which Reform UK leader Nigel Farage stood for re-election in his riding of Clacton, having resigned to protest a Parliamentary investigation into his acceptance of undeclared financial gifts, has highlighted another. Because all major political parties in Britain boycotted the election, calling Farage’s resignation and subsequent re-election bid a political stunt, the runner up was Count Binface, actually British comedian Jon Harvey.  Remarkably Binface, representing the registered Count Binface Party, took almost 27% of the votes, over 9,000, although Farage won handily.

Harvey became Binface, a costume where he wears a garbage can (aka rubbish bin) on his head, following his original persona as Lord Buckethead, the costume he wore when he challenged then British Prime Minister Theresa May in the 2017 general election. May won with 31,000 votes. Buckethead got 249. But he did get his photo taken with May and the other candidates, a photo that went viral. Because of the notoriety, the God of Copyright Infringement came knocking. Lord Buckethead was a character created by Director and writer Todd Durham for his 1984 parody of Star Wars, a film known as Gremloids (in the UK) or Hyperspace (in the US). The film was obscure to say the least, earning most of its revenue through VHS sales.  Buckethead enjoyed a brief period of fame in the 1980s when some individuals dressed up in the character to oppose Margaret Thatcher and John Major, but it was Harvey’s encounter with May that shot the character to fame some 30 years later. That’s when Harvey’s problems began. According to the Guardian, Durham began to show a proprietorial interest in the almost-forgotten character he had created decades earlier. He appears to have wanted to license the character if people wanted to use Buckethead for political purposes. Harvey had no appetite for a legal fight, and so Buckethead has morphed into Binface.

From a copyright perspective, the case raises a couple of interesting issues. In British law, there is a fair dealing exception for cases of parody, caricature and pastiche. In the US, while parody is not codified in US law, it is an accepted fair use defence provided other factors in the four step fair use evaluation do not rule it out. In particular, the use must not negatively impact the commercial prospects of the original work in the marketplace. Clearly Gremloids/Hyperspace had no impact on the commercial viability of Star Wars. George Lucas, the creator of the Star Wars franchise and its characters, did not bother to sue Graham although he is notoriously litigious with respect to his IP rights. One of the most famous examples is the copyright infringement case he brought in Britain against prop designer Andrew Ainsworth, who designed the original Darth Vader helmet and sold fifty of them to Lucas in 1976. Years later, after Star Wars had become globally famous, Ainsworth dug out his old moulds and started selling helmet replicas from his studio in Shepperton. Lucas sued for copyright infringement in the US, and won, but Ainsworth had no assets in America, so Lucas sued again in the UK. The case lasted seven years but in 2011, Ainsworth prevailed. The UK Supreme Court upheld an appeal court ruling that the helmets were not sculptures protected by copyright, but utilitarian industrial designs, like a toaster. The protection period for industrial designs in Britain is only 15 years, and by the time Ainsworth had started reproducing the helmets in the early 2000s, protection had expired. Had they been categorized as sculptures, they would have been protected for Lucas’s lifetime plus a period of 70 years. The UK court agreed, however, that Ainsworth’s helmets constituted copyright infringement in the US and enjoined him from not selling them into the US market.

This case was also made famous by the tactics of the barristers for the opposing sides. Lucas’ lawyer displayed the helmet as a work of art, bringing the helmet into court in a crystal case set on a pedestal, as befitting a sculpture.  Ainsworth’s lawyers brought in several helmets in a cardboard box and invited the justices to try them on for size, thus stressing their utilitarian rather than artistic nature. Courtroom theatrics count.

Coming back to Lord Buckethead, could Jon Harvey have claimed a parody defence? Not really. In adopting the character of Lord Buckethead, he was not parodying the original film, as Gremloids had done with regard to Star Wars. He was simply using what was arguably a copyright-protected character in another way. If you use Mickey to promote your candidacy for the Rathaus, don’t think that the Walt Disney Company won’t assert its trademark and copyright to prevent misuse of the mouse with the squeaky voice. This is why I have been very careful not to use the character of Count Binface to attract your attention to this blog post. While it is unlikely that Harvey would pursue legal action if I used an image of Binface without authorization, as a proponent of the value of copyright, I should walk the talk and not infringe. I could seek permission, but creating my own character is a faster solution. Lord Pailface is a good substitute. Does the modicum of skill and judgment I used to create it mean it is copyright protected? I hope we will never have to find out.

© Hugh Stephens, 2026.

[i] Afterlife went out of business and never paid. It was however “reincarnated” as Echovita, which scrapes obits from the website of funeral homes and other public sites and rewrites them using only the basic elements of the deceased’s life, facts which are not protected by copyright, thus avoiding being charged with copyright infringement.