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.

Can Canadian Film or Television Have a Global Hit?

Pursuing the Unlikely Dream

By Peter S. Grant

A smiling elderly man with glasses and a beard, wearing a gray shirt.

Peter Grant

Occasionally I am pleased to host a guest post on this blog, which is the case with today’s essay by Peter S. Grant. It is timely given the current policy debate over the role of foreign platforms in contributing to the production of Canadian content. Peter Grant will be well known to many readers of this blog. After a more than 50 year career as a communications lawyer with the Toronto firm of McCarthy Tétrault, Peter continues to be active in the field of Canadian communications. He was one of six experts appointed to the Broadcasting and Telecommunications Review Panel in 2018, which reported in 2020, and is also the founder of the annual Digital Media at the Crossroads (DM@X) conference in Toronto. Peter is the author of several books including his autobiography “Changing Channels: Confessions of a Canadian Communications Lawyer.“

In this essay, I explore the often sought but almost never achieved dream of all Canadian film and television producers. It is also a dream of many observers of the film and television scene in Canada.

Can Canada produce a global hit?

We are all used to seeing Hollywood films or TV series that turn out to be successful around the world. But while Hollywood may be the principal source of such hits, we also see occasional global hits from other countries. For example, Australia can point to Crocodile Dundee which was decidedly Australian and was a huge global hit in 1983. France can point to Amélie, released in 2001, which was one of the few French films to break out in the international market. And England can point to a streamof more recent hits that look very British – from Downton Abbey to Harry Potter to Notting Hill.

So what are the chances for such a global hit to come from Canada?

In discussing this question, we have to make one thing clear. We are not talking about global hits that may have been made in Canada but would not be seen as Canadian. For example, the Oscar winning film Chicago was entirely made in Toronto, but no one would think it was Canadian. Around the world, that movie would be seen quite properly as a Hollywood production. So what would qualify as a Canadian global hit? For the purpose of this analysis, the production would need to meet three conditions:

1. It would be shot in Canada by a Canadian production company and would feature Canadian creative talent, allowing it to qualify as “Canadian content” under the CRTC rules.

2. For the audience outside Canada, it would “look” Canadian and be recognizably Canadian whether through theme, subject matter or other elements.

3. It would be a huge ratings success outside Canada as well as in Canada itself.

I should note that whether or not a Canadian production achieves international success is not an appropriate basis for Canadian regulatory or financial support. After all, the prime object of our domestic policies should be to make programs that appeal to Canadians, not the world. But if the world also likes those programs, and if those programs can garner revenue outside Canada, so much the better.

So, have we ever had a Canadian production that both looked Canadian and was a global hit? And if not, why not?

Let’s start by looking at each of the three conditions more closely.

Canadian Talent

In the global hit category, Canadian creators have often played a major role. Countless Canadian actors have found success in Hollywood, as have Canadian directors. However, the fact that global hits like Titanic and Avatar were directed by James Cameron, born in Kapuskasing, Ontario, does not make them Canadian.

Hollywood has a huge Canadian talent diaspora but they dance to Hollywood’s direction. Nor do their productions look Canadian. As with the movie Chicago, some of these productions may even be shot in Canada. But the fact that Canadian director Norman Jewison shot most of Moonstruck in Toronto does not make it Canadian. In fact, we have a long list of foreign location or “service productions” that are shot in Canada to take advantage of provincial tax credits and the lower Canadian dollar. Some of these productions may use Canadian actors or a Canadian director. Examples include many of the Hallmark romantic productions. But none of the Hallmark productions qualify as Canadian under CRTC rules. In fact, they brilliantly masquerade as being shot in the US or in mythical communities that could be anywhere.

So we have a plethora of Canadian talent. But Canadian talent and an indistinguishable Canadian location is not enough. What about a Canadian theme?

Does the Production Look Canadian?

This is a difficult element of the three-part test to pin down. Broadcasters in Canada have scheduling and expenditure requirements to support “Canadian content” as defined by the CRTC. But the Canadian content rules set by the Commission do not require that the subject-matter be Canadian or that the film or program “look” Canadian.

There is in fact a lively debate about this question. Richard Stursberg, in his recent book The Tangled Garden, has argued that Canada should adopt the British rules, which only hand out tax credits if the program is seen as British. Points are given if the characters are identifiably British, if the program is clearly set in Britain, and whether it is based on British subject matter.

One could imagine having similar rules in Canada. But others argue that adopting such a system would unfairly limit the freedom of expression of Canadian writers.

Occasionally even Hollywood will make a movie with a recognizable Canadian theme. In 1983, Disney made Never Cry Wolf, an adventure film set in the Canadian sub-arctic based on Farley Mowat’s 1963 book of the same name. Had that film been made by a Canadian production company and had a Canadian director and Canadian actors, we would celebrate it as a bona fide Canadian hit. But none of those elements were Canadian. Accordingly, the production film sits as just another nature film in the Disney library.

Another recognizable Canadian story is Anne of Green Gables. Following the global success of the 1903 book by Lucy Maud Montgomery, the US studio RKO made a global hit out of it in 1934. Since then, numerous TV productions made in Canada by Canadian companies have capitalized on its early success. We have gone back to the Anne well again and again. The British equivalent would be the lively industry in the UK churning out multiple versions of Pride and Prejudice.

But Anne apart, it has been hard for Canadian producers to come up with a Canadian theme that might travel abroad. Robert Lantos tried with Black Robe in 1991, based in Bryan Moore’s novel about a Jesuit missionary among the Hurons in the 17th century. It was decidedly a Canadian-based story and did well for a Canadian film but it grossed less than $10M worldwide. Lantos tried again in 2002 with Men with Brooms, a comedy about curling starring Paul Gross and Leslie Neilsen. But it failed even to get a US film distributor.

A number of Canadian television series that “look” Canadian have had significant foreign sales. Examples include the Degrassi series, which was a success on the US teen channel TeenNick (previously The N), and Murdoch Mysteries, which has been sold around the world. Both series are recognizably Canadian. But neither series can be described as a global hit. Nor can the Canadian television series Corner Gas, which was a hit in Canada but failed miserably outside Canada, despite being picked up by  WGN Chicago, the US superstation.

One unmistakably Canadian movie that had international acclaim was Atanarjuat: The Fast Runner, a 2001 film directed by Inuit filmmaker Zacharias Kunuk. It was the first feature film ever to be written, directed and acted entirely in the Inuktitut language. In 2015, a poll of filmmakers and critics in the Toronto International Film Festival named it the greatest Canadian film of all time. But outside Canada it only played in arthouse cinemas and its worldwide revenue was only $5.1 million. So regrettably it doesn’t qualify as a global hit.

More often Canadian producers have tried to underplay any Canadian connection in their programs, in order to enhance the chance of a sale to a US network. They are assisted by the fact that Canadian cities look a lot like cities south of the border.

And of course, Canadian writers have frequently decided to tell stories that are not based in Canada at all. Examples include Michael Ondaatje’s The English Patient, and Margaret Atwood’s The Handmaid’s Tale. Both novels had global success in their audiovisual form. But neither production would have been seen as Canadian, even if produced by a Canadian company. For a global hit to be seen as Canadian by world audiences, the story needs to have a Canadian focus.

Is the Producer Canadian?

To qualify as Canadian under CRTC rules, the production must be produced by a Canadian owned company. Foreign companies argue that we are being too strict in this regard. If the production looks Canadian and is written and performed by Canadians, why should we care if it was financed and owned by a foreign company?

In the United Kingdom, ownership does not appear to matter. The Harry Potter movies were all financed and owned by Warner Brothers. But the productions all qualified for UK tax credits and no one would think of them as other than British films. Nor did the UK government express concern when a number of successful UK independent production companies were sold to US companies. So Working Title, which produced hits like Notting Hill, Bridget Jones’s Diary and Bean, is now owned by NBCUniversal.

France takes a different view. To be a French film, a film must be produced and financed by a French producer. For example, the French hit Amélie, which had a French director, writer and star, and was produced by a French company, received significant support from the French box office levy. But when three years later, exactly the same creative team came up with A Very Long Engagement, they were denied any such support. Why? Because this time, the film was financed by Warner Brothers.

Here in Canada, we follow the French approach. The producer must be a Canadian company for its productions to qualify as Canadian content under the CRTC rules. And although tax credits are available for foreign productions shot in Canada, the tax credits are higher if the producer is owned by Canadians. Canadian content policy has favoured independent Canadian-controlled producers in the interest of diversity and in the hope that the locus of creative decisions will stay in Canada. So when Entertainment One, Canada’s largest independent producer/distributor, was sold to Hasbro last year, it was careful to say that eOne’s Canadian film and TV operations would “remain as a separate Canadian controlled unit within the combined business.”

Is There Hope?

So we come back to my question: Can Canada produce a global hit, meeting the three criteria I have outlined?

While the skill set to produce a world-class production is here, the real problem is to find a Canadian story that will resonate with global audiences. Yes, Anne of Green Gables met that test. But Canada’s track record since Lucy Maud Montgomery came up with that story is not very encouraging.

The closest we have come is the recent international success of Schitt’s Creek, the Canadian TV series. That TV series, originally launched on the CBC, received significant ratings in the United States when carried by POP TV and Netflix. It also recently garnered seven Emmys and has been lauded as a Canadian hit by TV critics in a number of countries. But some have argued that viewers outside Canada would not see the series as “looking” Canadian even though the street signs are in kilometers and the post office boxes say Canada Post.

So what kind of story would be attractive to people outside of Canada but be unmistakably Canadian? Would it be a spy story with Ryan Gosling playing the part of a Canadian Mountie? Would it be a Canadian romcom starring Rachel McAdams and set in Niagara Falls? Would it be a comedy starring Jim Carrey seeking to save the world as Captain Canada? Who is to say?

At least, Canadian producers can take heart from the live theatre. Before the Covid-19 crisis closed the theatres, the smash hit on Broadway and in the West End in London was an unlikely musical called Come From Away. Here was a quintessential Canadian story that found international success. So there still may be hope for a Canadian film or television to be a hit in the global market.

But who knows?

(c) Peter S. Grant, 2026

US Streamers and Canadian Content: What is the Role of Copyright? (A Clarification)

A stylized film clapperboard with a Canadian flag design and a letter 'C' in the center.

Image: Shutterstock (adapted)

Last week I commented on the news that the Carney government intends to eliminate even the 5 percent base contribution of revenues required of US streaming services to fund Canadian production, rolling back a requirement imposed in 2024 by the CRTC as part of the first phase of implementing the Online Streaming Act. The story was broken by the Wire Report, which learned of this decision through a letter filed with the Federal Court by the Attorney-General for Canada (AGC) on behalf of the government. The Federal Court is currently hearing an appeal launched by the streamers against the CRTC’s base contribution edict.

The operative paragraph of the AGC letters reads as follows;

“We are instructed to inform the Court that the Government’s intention is to eliminate the base contribution requirement on streaming services and to provide government funding to replace these contributions. We are further informed that the Government expects the direction…to be published for consultation…in the coming weeks.”

In other words, a new policy direction is coming, so stay tuned. The Wire Report stated that the office of the Minister responsible, Hon. Marc Miller, confirmed the streamers will still be required to “reinvest” an unspecified portion of revenues under new policy directives under the Online Streaming Act, which remains in force. How that will be done is far from clear.

I then offered my opinion that if the Carney government wants to replace the current system with a policy alternative which is more likely to attract the support of the streamers (and perhaps lesson the pressure coming from the US Government generated by the streamer’s lobby), it should consider waiving or modifying the regulation that prevents the streamers from obtaining the full rights to the Canadian content in which they are required to invest. Specifically, I said;

Canadian policy makers and the Canadian industry have failed to grasp that you cannot, or should not, require foreign players to fund domestic producers to create Canadian content (CanCon) while simultaneously denying those same foreign entities the right to own or control the marketing and distribution of these productions.

I thought I was clear in what I was saying, but in retrospect maybe I was not as clear as I could have been.

After I’d posted the blog, a knowledgeable observer of the Canadian media scene wrote to me saying I was mistaken because I had suggested that the current Canadian policy–to the extent that it requires Canadian producers to own the copyright in their production– is inconsistent with requiring foreign players to fund domestic producers to create Canadian content. My correspondent noted that any Canadian content requirement imposed on foreign platforms simply requires them to contribute a percentage of their annual Canadian broadcasting revenues to “Canadian programming expenditures” or CPE. CPE could be “direct”, i.e. direct investment in Canadian programs (commissioning and production of content), acquisitions of Canadian programming, or expenses relating to dubbing in Canada using Canadian human resources, or “indirect’, namely contributions to production funds. They pointed out that a foreign platform can meet its CPE requirements by simply buying specific rights to a Canadian program, e.g, to show the program on its service in Canada or in other countries.  CPE doesn’t require the foreign platform to acquire the copyright in the program.

If my correspondent misinterpreted what I was saying, then that is on me, so let me clarify.

Firstly, I am in full agreement with what my critic said. The regulations do not require the foreign platform to acquire the copyright in the program. (I wasn’t suggesting that they did, but it seems I wasn’t sufficiently clear on this point). Indeed, the current regulations prevent it. There are two ways the foreign platform can meet its CPE requirements. The first is by simply paying into a fund (termed an “indirect CPE contribution”) over which it has no control and no access. That is basically how the initial 5% base contribution (now repudiated) was treated by the CRTC. No less than 11 different Canadian funds were eligible to draw funding from the base contribution pot of money. Some of the production was in fields, such as local news, that the streamers do not even produce. This was one of the grounds for the appeal to the Federal Court.

The other way in which the foreign platform can meet its CPE obligations under the current regulations is by investing in, commissioning, or acquiring the rights for Canadian programming, as noted by my correspondent. Canadian programming is defined by an arcane set of criteria that I have discussed elsewhere. It requires a certain number of Canadian inputs, from key creative positions and performers all the way down to make-up artists and hairdressers. But there is one key kicker. The IP rights, the ©, must be held by a Canadian for a set number of years, or else the program does not qualify as Canadian with respect to CPE obligations. In other words, the foreign platforms that are commissioning, investing in and funding the production in order to meet their direct CPE targets cannot own the rights. If they do retain the rights, the funds spent on creating content do not count against CPE requirements. Yes, foreign platforms can license a production to obtain distribution rights, but they must negotiate with a Canadian rightsholder to so–even if they have funded the program. Under normal industry practices, the platform would be free to hold the bundle of rights conferred by copyright if they wished to do so. This is often the case as it leads to a better return on investment.  

To be clear, I was not saying that the copyright restriction prevents foreign streamers from investing in Canadian production. Indeed, they are obliged to do so regardless of whether or not they can control the rights (which they cannot). Rather, the copyright restriction discourages the streamers from making any effort to go beyond the minimum legal requirement to fund Canadian production because they have no incentive to do so. Why invest in a production in which you can’t own the rights—unless you have no choice. The streaming industry works on the basis of different acquisition models, but for commissioned production or production where the bulk of the production cost is underwritten, the normal practice is to acquire all the rights through control of the copyright in the work. This allows for international distribution as well as control of subsequent release in different formats. If Canada is now going to replace the mandated CPE contributions with something else, it would make sense to find ways to encourage the streamers to “re-invest” in Canada. A positive step forward, in my judgement, would be to loosen the copyright chokehold.

I have no way of knowing for certain whether this would result in increased expenditure on Canadian production by the streamers. Many factors go into production decisions, including regulatory requirements. But a regulatory requirement is a stick. The current CPE requirement assumes that the only reason a foreign platform would invest in a certified Canadian production is because it is required to. But carrots can also be used. A well used carrot is a production subsidy. Canadian producers would no doubt scream bloody murder if Canadian taxpayer funds were used to subsidize US productions of Canadian stories. Yet, taxpayer funded subsidies are routinely used to encourage US studios to produce US content in Canada for US audiences. Foreign Location Shooting (all those Netflix, Disney or Hallmark and other productions made in Canada where Vancouver substitutes for Seattle or Toronto for some large US city) is big business and is heavily subsidized by Canadian taxpayers through both provincial and federal incentives.

If the objective is to keep workers in the Canadian film industry employed while facilitating the telling and indeed the export of Canadian stories, then why not let the streamers, who are skilled at production and international marketing, get full credit for the funds they put into Canadian production by allowing them to hold the rights and determine how the product will be used? If it is Canadian policy to increase the production and international distribution of Cancon (using the current criteria but without the copyright restriction), why not apply the euphemistically titled film “tax credits” to Cancon regardless of whether the IP rights are held by an international company or a Canadian entity?  Such an approach is likely to give Cancon much wider exposure than currently.

Some will say this is naïve; that the US studios have no interest in promoting Canadian stories. They only want to dumb down any expression of Canadian identity. I would respond with two points. First, a lot of what already qualifies as CanCon has no recognizable Canadian identity but provides sustenance for Canadian creatives, directors, showrunners, even hairdressers. Second, the studios will produce what sells. They are neither for nor against Canadian identity. If a good story is enhanced by a being set in a Canadian background–in other words if there is a business case to be made–then it will be produced. If a financial incentive is available for a foreign studio that jumps through all the hoops necessary to obtain CanCon certification, this might be the factor that tips the balance toward greenlighting a production. Canadian stories are not just produced for the limited Canadian market. They can have broad international appeal, including to US audiences, if they are crafted and marketed properly, just as Korean, Nordic, Spanish, British, Australian and other content has enjoyed success internationally.

It is also worth noting that streaming is a competitive business. Costs are going up, as consumers will have noted. While the industry is big, if it is regarded as an unlimited cash cow whose function is to fund every variety of Canadian content, from local news to Indigenous production to minority Official Language groups, then it is not surprising there will be pushback. If the forthcoming policy change results in a more flexible Canadian content policy by waiving or eliminating the Canadian ownership requirement for foreign platforms, while creating incentives for them to produce CanCon rather than punishing them if they do not, this could open the way to a better outcome for the foreign platforms, for consumers and for Canadian creators.

© Hugh Stephens, 2026. All Rights Reserved

How to Get the US Streamers to Invest in Canadian Content

A film clapperboard featuring the Canadian flag design.

Image: Shutterstock

It was an unusual, almost clumsy way to disclose an important policy change (or, at the very least, a key policy refinement/clarification). The Carney government has revealed, via a previously undisclosed letter to the Federal Court, that it no longer intends to require foreign streaming services, i.e. Netflix, Disney+, Amazon Prime Video, and others, to make even the base level contribution of 5% of its annual Canadian revenues to support production of Canadian programming. This percentage, which amounts to approximately $200 million annually, was imposed by the CRTC back in 2024 as the first step in its mandated implementation of Bill C-11, the Online Streaming Act (OSA). It was described as a “down payment” on streamer contributions, with the final amount to be announced when the CRTC had completed its hearings and deliberations. As I commented at the time, just about anyone who could get their nose into the broadcasting support trough was to get a piece of the action with no less than 11 entities eligible for a piece of this streamer-funded pie. In response, the levy was challenged in Federal Court by a number of the streamers and studios and as a result, pending a decision which the Court has yet to reach, payment was suspended.

Two years later, in late May of this year, the CRTC finally announced its decision on total streamer contributions. The large US streaming services would be required to contribute 15% of revenues (including the initial 5% base contribution that was under challenge in Court). The outcry was immediate and predictable, with the streamers calling on the government to overrule the CRTC decision (which technically it could not do). Critics claimed the required contribution was a violation of CUSMA and could only be justified by invocation of the Cultural Exception clause, which would legitimize US retaliation. I challenged this assertion but noted that the OSA would be on the table along with many other Canadian policies if CUSMA was to be renewed and renegotiated. Then, just a couple of days later, the government declared it would be issuing instructions to the CRTC to review its decision on streaming contributions, simultaneously announcing the intended creation of an annual $600 million dollar fund to replace the contributions initially expected from the streamers. While the rollback of the CRTC mandated contributions was the key point of the announcement, there was—to say the least—a lot of uncertainty as what obligations would be imposed on the streamers in lieu. Heritage and Identity Minister Marc Miller, the point person on the file, noted that the OSA remains in effect and while streamer contributions would not amount to 15% of annual Canadian revenues, they would not be zero. There is a lot of wiggle room between zero and $600 million. Miller also noted that the initial $200 million payment by the streamers was still held in abeyance because of the Federal Court challenge, and was therefore unavailable to the industry. Keeping the OSA in play while providing an immediate subsidy to the Canadian industry as well as announcing a review policy of options for streamer contributions provides some negotiating room for the upcoming CUSMA talks.

In the world of trade law, replacing the “missing revenue” from the streamers with a taxpayer-funded subsidy is cleaner because a domestic subsidy to a non-exporting industry is far less problematic than a levy on a imported product. At this particularly fraught period in Canada-US trade negotiations, clearing away immediate obstacles to reaching a broader agreement seems to be part of the Carney playbook. Perhaps the government realizes that sacred cows like the NAFTA/CUSMA cultural exception and even dairy supply management will need to be modified in the pursuit of the greater good. Carney’s public explanation—that the government has decided to overturn the CRTC contribution framework because it would result in additional costs to Canadian consumers when the streamers pass on the additional cost to their customers—is about as disingenuous as it gets. If anyone thinks that their Netflix, Disney +, Paramount +, or even Crave subscription is not going to increase over time, then they must be living on some other planet. Moreover, there is about to be an industry shakeup. Once the Paramount takeover of Warner Bros is finalized, watch what happens to HBO in Canada, currently licensed on Bell Media’s Crave service.

Canadian policy makers and the Canadian industry have failed to grasp that you cannot, or should not, require foreign players to fund domestic producers to create Canadian content (CanCon) while simultaneously denying those same foreign entities the right to own or control the marketing and distribution of these productions. That is the current Canadian policy which, for the most part, defines Canadian content not only by who, how and where it was produced, but also by who controls the IP in the production. Even though the CRTC tweaked the definition of CanCon last year to encourage more co-productions (allowing foreign funders up to 80% control), it backtracked on that in its announcement in May of this year.  

The IP control issue is fundamental. From the perspective of those in the Canadian content industry (and those who want to build up the industry), it is necessary to retain control of the IP in a “Canadian” film or series, even though someone else (a foreign studio) is paying for it, in order to build a domestic base through control of back catalogue. From the perspective of the foreign streamers, this is taking a free ride. Eating your cake and having it too.

And then there are the terms of CUSMA. However, whether the funding model laid down by the CRTC is CUSMA-compliant or not is really no longer the point. US interests have argued it is not but given the careful wording of CUSMA, a successful legal challenge would be difficult to mount, as I have argued elsewhere. Nevertheless, the Trump Administration has made it clear that anything in CUSMA, or any other agreement for that matter (such as the revenue sharing arrangements for the Canadian-financed Gordie Howe Bridge between Detroit and Windsor) are targets and can be ignored or re-opened. How much pain can Canada take? This is not a respectful negotiation between trading partners, each with interests to protect, resulting in a compromise both can live with over the longer term, but is instead a one-sided shakedown. As perceived by the current US administration, the US can do pretty much what it wants, and will find any pretext do so (fentanyl, national security, forced labour standards, smoke?) because its pain threshold is higher than Canada’s. Getting the US studios on board by creating an outcome that meets both their commercial needs and Canada’s cultural objectives (by strengthening Canadian production) would be a timely initiative.

Coming back to the recent revelation that even the base contributions mandated by the CRTC in 2024 are no longer supported by the Canadian government, the means of disclosure was obtuse even though the result probably shouldn’t have been a surprise. The letter itself was a clarification requested by the Court to determine whether continuing to hear the appeal launched by the streamers was moot. Maybe the government was concerned the challenge from the studios would be upheld, and the $200 million annual payment never paid. Or maybe it has decided there could be a better way to get the streamers to contribute to Canadian production (as opposed to production in Canada, i.e. US content filmed in Canada). The Canadian Association of Broadcasters claims it has been assured during discussions with officials that contributions (in some form) will still be required from the US streamers. At this point, all the government will say is that policy is under review. The necessity to clarify its position to the Federal Court seems to have been the action-forcing event that made the government come clean on its intent to dispense with the base contribution as well as the CRTC’s additional 10 percent. What will replace these contributions is the big question.

Because of the regulatory process and requirements of law, new guidelines will have to be provided to the CRTC. This will take a while and then the slowrolling, grinding work of the Commission will begin, with hearings and policy papers. Don’t look for quick results. Much of the work the Commission has done on the OSA over the past two to three years has just gone down the drain. Meanwhile, the creative community is nervous. The palliative of $600 million in taxpayer funds in lieu of locked-in streamer contributions is not unwelcome, but “he who giveth” can also take away. A government fund is subject to all sorts of pressures—budgetary deficits resulting in cutbacks or freezes, change of government, etc.—whereas a funding mechanism tied to industry revenues is much more likely to survive over the longer term.

The Carney government has a difficult needle to thread. It needs to keep the Trump Administration engaged as it tries to determine if a reasonable outcome to CUSMA is possible instead of the ongoing, perpetual review (i.e. regular blackmail) apparently favoured by the US, while being seen to stand up for Canadian culture and identity. In terms of building and sustaining a vibrant creative sector, is it in Canada’s interests to require foreign streamers to fund Canadian production while denying them the means to fully exploit the potential of the content they have been required to invest in? Or, is there a better way? Canada has outstanding talent, a strong production base, and interesting stories to tell. The streamers need content for their global platforms. With a policy rethink, hopefully the Carney government will devise a means to encourage and incentivize major international players to invest in and distribute Canadian content. This would be to Canada’s advantage, and to theirs as well.

© Hugh Stephens, 2026. All Rights Reserved.

Is This Flag Protected by Copyright?

Flag featuring a British Union Jack in the canton and a circular emblem with a green tortoise, a yellow pine cone, and white symbols on a blue background.

Image: Public domain

When I scroll down the emoji list on my phone, after all the smileys and pulsating hearts, the camels and horses, tennis racquets and golf clubs, I come to a section displaying flags. Flags of all colours and descriptions, most of which look as if they are from a child’s colouring book. There is the black and white chequered Indie car racing flag, the Jolly Roger pirate flag, the Buddhist (or is it Gay Pride?) flag, and then rows and rows of national flags. My phone has more than 30 rows of flags, with 7 flags in each row. Considering that there are just fewer than 200 recognized countries in the world, there must be a few extras, subnational flags of some sort. Between the 50 US states, 13 Canadian provinces and territories, the 7 Australian states and territories, the subunits of the United Kingdom, Spain, Germany etc, there have to be lots of other flags out there. Some of them are quite similar in design (considering that there are only so many ways to design a flag). On my phone, no less than 21 flags have the Union Jack in the left top corner, in flag-speak referred to as the “canton”. While I clearly recognize the flags of Australia and New Zealand, most are not familiar. They must represent some microdot remnant of the British Empire, like St. Helena (recently made familiar to many because the hantavirus ship stopped there).

Many of these flags have the Union Jack on a crimson red or dark blue background (“defaced” in vexillology or flag-speak, with a design of some sort), although Niue has a yellow ensign while the British Indian Ocean Territory–you know, those remote islands that Britain depopulated in the 1960s so it could turn them into a giant airbase for the USAF, known as Diego Garcia, and which because of pressure from the displaced natives it tried to return to Mauritius and then lease back over the objections of the US government–has wavy blue lines on a white background. It is “defaced” with a Crown and palm tree, not a B-52. Many other similar flags, such as Ontario’s–which is based on the red ensign-are “defaced” with a coat of arms in the fly. Almost all such flags represent territories with a past or present connection to Britain, with the notable exception of Hawaii. The then king of Hawaii incorporated the Union Jack into the design of his Hawaiian kingdom flag in the vain hope that the Royal Navy might protect him from a US takeover. Obviously, it didn’t work.

Wikipedia has a full list of Union Jack related flags, past and present, including the flag of Vancouver Island. It is a dark blue ensign, “defaced” with the seal of the Colony of Vancouver Island, with the Union Jack in the canton. None of the territorial flags are copyrighted although there may be legal limitations on how a flag can be used or displayed. In Canada, just about anything goes, including flying it upside-down if you are displeased with the government about something. I have written about copyright and flags in the past, noting how the Australian government had to license from its designer the right to reproduce the flag it declared to represent the Aboriginal people of Australia. A flag can be considered a creative design and if it can be attributed to an individual artist or designer (who is not long dead), then it could be protected by copyright, especially if it is not an official flag of some kind. Generally national flags, even if designed by an individual, are in the public domain because the individual would have been commissioned to produce the work, or sufficient time has elapsed to ensure that any copyright has expired. For example, the national flag of New Zealand was designed by Royal Navy officer and noted explorer Sir Albert Hastings Markham (1841-1918) in 1869.

The flag of Vancouver Island, which is the subject of this blog post, has its own history. It was created, or perhaps re-created, by historian Michael Halloran, who has just passed away at the age of 82. If he held the copyright on this flag, it would be protected under Canadian copyright law for another 70 years, but Halloran did not assert copyright over the design, claiming he had no right to do so since it belonged to the former colonial government, and to the Crown. He is probably correct. According to a story in the local paper, the Times-Colonist, Halloran spent 15 years researching the VI flag before it finally saw the light of day in 1988 (or re-emerged into the light of day, depending on what you choose to believe).

In 1865, Royal Assent was granted to British colonies to fly flags carrying colonial identification to identify ships that they operated. At that time, Vancouver Island was a separate Crown Colony, with its own Governor and Assembly. It had impressive government buildings, even though its settler population was small. (Indigenous peoples had no representation). It remained a separate entity until being merged with the mainland colony of British Columbia by the Colonial Office in late 1866. In theory then, Vancouver Island could have produced its own flag. It is not known if any such colonial VI flags were ever created or flown although it is unlikely, and there is no known historical reference to such a flag. While the government of the day did operate some vessels, such as the SS Beaver, a steam-driven ship used for trading and surveying, the vessel was owned by the Hudson’s Bay Company (HBC) and probably flew the HBC’s red ensign. But none of these inconvenient facts stopped Halloran.

He studied correspondence between the Colonial Office in London and the colonial government in Victoria and obtained drawings of the design approved for placement on the blue ensign. It was derived from the Great Seal of the colony, designed by Benjamin Wyon, engraver at the Royal Mint (Chief Engraver of the Seals) in London. The seal that Wyon designed in 1849, when Vancouver Island was first declared a Crown colony, incorporated several symbols that Wyon, sitting in his Dickensian office on the banks of the Thames, must have imagined represented the settlement. They included the trident of Neptune and the Caduceus of Hermes, representing the sea and commerce respectively. The seal also includes a pine cone, representing forestry, and a beaver sitting on a small island. A sea otter would have been a more historically accurate representation as it was the sea otter trade that first put Vancouver Island on the world map, literally, in the late 1700s. By the mid 19th century however, the sea otter trade was over, with the animals driven almost to extinction by over-harvesting. (Sea otter colonies on the west coast of the Island have recently been restored through reintroduction of animals from Alaska). Beavers exist on Vancouver Island although trade in beaver pelts was never a major part of the economy of the Island, unlike the mainland or other parts of Canada. But a beaver would certainly symbolize the colony’s association with the Hudson’s Bay Company, which originally administered the colony on behalf of the Crown. Imagine Wyeth in his office designing seals for the far-flung empire, incorporating imaginative symbols representing these distant lands, pelicans, mining tools, Chinese junks, coconuts—and beavers.

Halloran took the essentials of Wyeth’s design and had a sample flag made by the Victoria Flag Shop. It was officially flown at the BC Legislature in Victoria in 1999 to mark the 150th anniversary of the founding of the Colony of Vancouver Island. It is widely flown on Vancouver Island to this day, to mark Islanders insistence that life on the Island is different from life on the Mainland (of BC). For one thing, it rains less. And the legacy of Michael Halloran lives on in the form of his non-copyrighted lost flag of the former Colony of Vancouver Island.

© Hugh Stephens, 2026. All Rights Reserved