Hugh Stephens Blog

An AI Bot Rewrote my Blog Post—And then Gave Me a Failing Grade for Credibility!

A humanoid robot sitting at a desk, using a typewriter while looking at a sheet of paper in a cozy, modern interior with soft lighting. — Image: Shutterstock.com

I don’t know whether to feel offended or flattered, but I’ve been scraped–by AI. And I can prove it. The first intimation I had of this signal occurrence was a notice from WordPress asking me to approve a comment on my recent blog post, “Copyright, AI and the Legal Profession: Who Blinked?”. I logged in to find it wasn’t a comment but rather a link to this website.

A quick click took me to the article “CanLII settling with Caseway signals shift in legal-tech power dynamics”, dated April 20, the same day I had posted my blog. It was under a byline “London News”, which initially I naively assumed referred to London, Ont, (shows how parochial I can be) but quickly realized that this was some kind of online journal for commuters heading toward Picadilly Circus. London News appears to be written by a bot called Noah News Service, managed by the company HBM Advisory, based in London (England). There was no direct reference or link to my blog post in the article, but when I read it, it seemed eerily similar. The words were all different but the thread (with one exception that I will come to later) was the same. When I searched further, I found a footnote indicating the London News story was “inspired by” my blog post. What does this mean in reality?

My original post is protected by copyright, but anyone (even a bot I suppose) can take “inspiration” from a copyrighted work and produce something new. However, the “inspiration” I provided the bot is substantially different, in my view, from the sort of inspiration I would get from reading, say, an Agatha Christie mystery and then deciding to write my own mystery novel. In the case of my blog post, the bot did not really take “inspiration” from the content to create a new original work but rather engaged in rewriting the story using AI analysis of its key points to recreate what I had said using different words. That’s not true inspiration; it’s paraphrasing. Moreover, I’ll wager that an unauthorized copy of my work was made in order to feed the content to the bot to undertake its rewrite. While facts cannot be copyrighted (only someone’s expression of the facts), this rewrite was not based on the facts of the case. It was based on my blog post. Although the bot has not hijacked my precise words (i.e. my expression) it has nevertheless replicated the structure of my work, its flow and its arguments. It’s sailing very close to the wind, but probably still legal. This is not dissimilar to the challenge faced by news organizations who find their expensively created content being scraped and repackaged by online platforms such as Google, META, and others. According to the National Post, in a recent survey commissioned by News Media Canada, more than seven in 10 Canadians (of those surveyed) think the federal government should prevent artificial intelligence companies from taking and repackaging news content without permission or compensation.

But back to the London News article. Scrolling down to the end, I found an analysis of my blog post, produced by Noah. The post was rated according to various categories. It earned a “Freshness Check” score of 8/10 (i.e. the story was relevant), a “Quotes” check of 7/10; a “Source Reliability” score of just 6/10, a “Plausibility” rating of 8/10 but, sadly, an Overall Assessment for credibility of “Fail”, based on a “Medium” degree of confidence in this assessment. OMG, where did I fail to make the bot happy? How did I not meet its standards?

The Source reliability score would have been higher, according to the bot, if it had been published by an “established news organisation”, rather than on a personal blog;

“While the author, Hugh Stephens, has expertise in international copyright issues, (thanks, bot) the blog’s content is not subject to the same scrutiny as mainstream media.”

Well, I can live with that. The whole point of a personal blog is to offer a different perspective from Fox News, the BBC or the Globe and Mail.

The bot’s analysis continued:

“The article references reputable sources, but the lack of direct links to these sources raises concerns about transparency and verifiability.”

In other words, stuff your blog post with direct links to “mainstream media” and you might improve your report card. I could do that, but it might not be appreciated by my readers. The need for more direct links is repeated in the Quotes section (Score: 7/10) as well.

As for my failing grade, the bot’s summary says;

“The article provides a speculative analysis of the CanLII-Caseway AI settlement, referencing reputable sources but lacking direct links for independent verification. Its opinion-based nature and the author’s personal blog platform contribute to concerns about reliability and independence. Given these factors, the content does not meet the standards for publication under our editorial indemnity.”

But they published it anyway, as they do all kinds of content scraped from the web. I am not sure what the editorial indemnity policy is, but I suppose it is some sort of guaranteed reliability indicator, designed to separate the loony conspiracy theories (alternate facts?) from “real news”.

I wondered who would pass the bot’s scrutiny. Of the ten AI related stories posted on the front page of London News on the day I selected, 5 passed, 4 failed, and one was Conditional. The sources were all specialized but non-mainstream tech publications, or informed blogs, but certainly not conspiracy-theory outlets. Yet about half failed to gain Noah’s approval. I started to feel a bit better. Perhaps I’m not such an outlier.

I wonder if could write a blog post that would get an “A” from the bot. First, I would have to catch its attention, which I guess I could do by making sure there were lots of references to “AI” in the text, and then I would have to suppress my instinct to offer views on the topic. I would also have to stuff in lots of links to mainstream sources, like the Guardian and its ilk. But what is the fun in that? And what is the point? If people want to read “just the facts”, they can turn over the screening of content (and thinking) to their mainstream media subscriptions. However, I will say that the idea of assessing the reliability of a story on any topic, whether it’s on AI or the war in the Middle East, is not a bad thing. In the case of HBM, the assessment is used as a teaser to convince users (individuals, but more likely businesses) to sign up for more comprehensive, paid analysis. Part of the problem is that the assessment is done by an AI bot, and we know that AI is far from perfect.

HBM claims it uses AI and statistical modelling blended with human expertise and oversight to do its assessments. There is a thin but cursory layer of human involvement; fact-checking, source verification, style refinement etc. I think this is borne out by one missing key paragraph from HBM’s rewrite of my blog post. I had taken aim at Deloitte as an example of a large multinational company, that should know better, having been caught red-handed using unattributed AI that produced inaccurate, “hallucinated” results in a consulting report it prepared for the Newfoundland government. (“Deloitte’s AI Nightmare: Top Global Firm Caught Using AI-Fabricated Sources to Support its Policy Recommendations”). While HBM’s rewrite included almost all the key points in my post, there was zero reference to Deloitte. I am sure that “human expertise” decided that there was no point in gratuitously antagonizing an actual or potential client. Can I prove it? No, I guess its just another conspiracy theory.

I wonder if this blog post will be picked up and analyzed by Noah and if so, whether I would get a “Pass” this time. After all, it is “Fresh” and I have used lots of quotes from Noah. Having referred to the London News, I should get a 10/10 for Source Reliability (although I am not mainstream media, but neither is Noah). As for Plausibility what could be more plausible than an AI bot ripping off an author’s work through an unauthorized rewrite? Would all that land me a “Pass” from Noah? I will probably never know.

Update: Noah picked up and summarized (using much more direct language this time) the blog post above and then (drumroll) gave me a “Pass”.

Copyright, AI and the Legal Profession (Who Blinked?)

Image: Shutterstock

I wonder what really happened? Maybe we’ll never know. On March 23 it was announced that Caseway AI and CanLII (The Canadian Legal Information Institute) had reached a settlement in the copyright infringement case brought by CanLII against Caseway in 2024. As the saying goes, “Somebody knows something”, but they aren’t saying. The settlement is confidential and both sides are very tight-lipped, although Caseway is willing to riff a bit on social media. The CanLII announcement that each party will move forward independently, and that both consider the matter fully and finally resolved with no further comment, is particularly buttoned-up leading one (the “one” being me) to suspect it was maybe CanLII that blinked, not Caseway. But I could be wrong. There is no announcement that Caseway will be licensing CanLII content, or any hints that money has changed hands. Maybe Caseway agreed to stop what they were doing even though they denied doing it.

The facts of the case are as follows. According to its website, CanLII is “a non-profit organization founded in 2001 by the Federation of Law Societies of Canada on behalf of its 14-member law societies. Its mandate is to provide efficient and open online access to judicial decisions and legislative documents.”

Not only that but,

“CanLII supports members of the legal profession in the performance of their duties while providing the public with permanent open access to laws and legal decisions from all Canadian jurisdictions.”

Caseway AI says it is a company that is applying AI techniques to the legal profession “to make legal knowledge accessible, affordable, and usable for everyone.”

This being the case, you might think that CanLII would be delighted when an AI company like Caseway came along to use CanLII’s “free” resources to develop an AI-based legal platform, which would arguably improve access to legal information on the part of the public, plus simplify the research function for legal firms. You would be wrong. Part of the problem, no doubt, was that the AI company, Caseway, charges for its services while not being part of the profession.(i.e. take but not give).

Caseway’s sales pitch also might not endear it to the legal profession;

“We believe the justice system should not feel closed off to those without deep pockets or institutional power…By combining trusted legal sources with modern technology, Caseway levels the playing field—empowering solo lawyers, small firms, businesses, and individuals navigating legal challenges on their own…”

Oh oh. The self representation bogey. Maybe the real reason for CanLII’s suit was that Caseway AI and others like it were setting themselves up as a direct threat to the legal profession. Apart from the threat of more self representation, AI is a two-edged sword for many lawyers. Yes, it simplifies a number of routine duties and research functions, but at the end of the day it could also result in a lot fewer lawyers. The threat is no different than the threat posed to accountants, radiologists, stock market analysts and soothsayers, but needs to be taken seriously.

The nub of the CanLII case was that while it provides public, non-copyrightable judicial decisions, these public documents are compiled in a proprietary database. CanLII argued that it spends considerable time, effort and money to “review, analyze, curate, aggregate, catalogue, annotate, index and otherwise enhance the data” prior to publication and that this creative effort converts public information into copyright protected content. CanLII might be right, based on the US case of Thomson Reuters v Ross where a US court found that Ross Intelligence, an AI research firm, had infringed on the copyrighted legal materials, indexing system and case headnotes (summaries of judicial cases) of Westlaw, a legal research platform owned by Thomson Reuters. Notably Ross had tried to license the Westlaw content, but Thomson Reuters had refused, viewing Ross as a competitor to Westlaw. Ross then helped itself to the material. In both the CanLII and Reuters/Ross cases, the foundational content, (judicial decisions) were in the public domain, but the issue revolved around the secondary, interpretive materials and processes. In presenting its defence, Caseway did not argue that it was entitled to use CanLII’s content under fair dealing or because it was in the public domain. Instead, it argued that it didn’t access CanLII’s content at all. It got its content from other public sources. CanLII had to prove the contrary.

When I asked Google’s AI mode “How strong was the CanLII case against Caseway” I got a summary of various Canadian Lawyer Magazine articles which discussed the pros and cons of the case, and an unsubstantiated assertion that “Caseway agreed to respect CanLII’s terms of service and cease any unauthorized automated data extraction.” Whether that is true or not I cannot say, but it is clear that both CanLII and Caseway will continue on their respective paths. Indeed, Caseway has just burnished its image a bit by cutting a deal with UBC (University of British Columbia, in Vancouver) to research ways to improve the accuracy of AI legal research tools. This is an ongoing problem for legal researchers and more than one lawyer has been sanctioned by the courts for presenting supposed legal precedents that were in fact non-existent, having been hallucinated by AI.

Apart from the AI hallucination problem, which does not limit itself to the legal profession (Deloitte Consulting being a prominent example of a major company being caught with its hand in the AI error-ridden cookie jar, without disclosure to the client), there is also the question of whether an AI platform should be allowed to provide legal advice. It is not licensed to do so and as a regulated profession, lawyers are jealous of their prerogatives. The profession is regulated for good reasons; to ensure competence and integrity to protect clients and the public. There are strict regulations against unlicensed practitioners providing legal advice, with severe penalties. In March of this year, ChatGPT’s parent company, OpenAI, was sued for engaging in the unauthorized practice of law, in this case by providing legal advice through a consumer‑facing chatbot. The seriousness of unlicensed persons or entities providing legal advice explains the many warnings posted on websites and blogs when discussing legal issues. “The foregoing does not constitute legal advice”. The case is pending.

Back to Caseway AI. Do I think that if you have a legal problem, you can solve it with a $49.99 a month subscription to Caseway instead of engaging a lawyer? Well, if you are determined to self-represent, it might be better to try it out rather than heading to the library to borrow a copy of the Highways Act, or Criminal Code, or searching for legal precedents that might be relevant to your case. On the other hand, remember the old saying, often attributed to Abraham Lincoln, that “A man who is his own lawyer has a fool for a client”.

The above does not constitute legal advice. 😊

Broadcasting Policy Beyond Broadcasting: Canada’s Online Streaming Act and the U.S. Response

By Christine Rose Cooling

(This is an occasional guest post. I am delighted to publish this analysis by Christine Rose Cooling, whose bio you will find at the end of the post).

An illustration featuring a smartphone displaying digital media platforms, a clipboard with media and broadcast regulations, a gavel on a wooden block, and a computer screen with hands holding microphones, labeled 'Online Streaming Act'.

Image: Shutterstock.com (modified)

When then-Minister of Canadian Heritage Pablo Rodriguez introduced Bill C-11, the Online Streaming Act, in the House of Commons in February 2022, he invoked earlier optimism about the Internet as a space for democratic participation and cultural opportunity. This sentiment recalls John Perry Barlow’s 1996 “Declaration of the Independence of Cyberspace,” which infamously imagined the Internet as a space beyond the sovereignty of nation-states, where the “weary giants of flesh and steel” would have no power. That naïve idealism has since given way to emerging concern about the role of global streaming platforms in shredding Canada’s cultural fabric. Left unregulated, Rodriguez suggested, these services risk weakening Canadian sovereignty.

More than three decades after Canada’s last modernization of the Broadcasting Act in 1991, debates about Canadian broadcasting policy returned with renewed intensity. With Royal Assent granted in April 2023, the Online Streaming Act extends the Canadian Radio-television and Telecommunications Commission’s (CRTC) regulatory authority to streaming services operating in Canada, requiring them to contribute to Canadian content (CanCon) production and support the discoverability of Canadian programming.

The Online Streaming Act represents both policy modernization and inertia in an effort to extend broadcasting policy beyond national broadcasting systems. Although the Act incorporates streaming platforms into the Broadcasting Act as “online undertakings,” these services differ fundamentally from traditional broadcasters—think spectrum allocation, scheduled programming, and territorially bounded signals.

Canada is not alone in attempting to retrofit twentieth-century broadcasting frameworks to the regulatory challenges posed by twenty-first-century streaming platforms. What distinguishes the Canadian case is the degree to which such efforts unfold within a trade environment shaped by structural dependence on access to U.S. markets, making Canadian cultural regulation unusually susceptible to bilateral pressure. Further, the Act operates within a volatile geopolitical arena in which platform regulation is being interpreted through the language of free trade and industrial competition rather than longstanding cultural logics.

Enter Stage Left: The U.S. Response

In June 2024, the CRTC announced that major online streaming services would be required to contribute five per cent of their Canadian revenues toward domestic production funds supporting Canadian and Indigenous content, including genres the streamers do not produce, such as news reporting. The decision has since been the subject of dispute by Apple, Amazon, and Spotify as well as the Motion Picture Association-Canada, though streamers will likely be prepared to pay some amount.

More recently, on March 19, 2026, Congressman Lloyd Smucker introduced the Protecting American Streaming and Innovation Act in the U.S. House of Representatives. This draft legislation, if adopted, would direct the U.S. Trade Representative (USTR) to investigate whether the Online Streaming Act discriminates against American streaming companies. The bill sets the stage for retaliatory action under Section 301(c) of the U.S. Trade Act of 1974 if such discrimination is found and if Canada does not remedy the discriminatory measures within 180 days, although use of Section 301 would violate the Canada–United States–Mexico Agreement (CUSMA).

Article 19.4 of CUSMA requires that countries treat digital products from other member states no less favourably than their own. In principle, this national treatment provision applies to streamers operating in Canada. However, Article 32.6 creates a broad exception for cultural industries, allowing Canada to adopt cultural policy measures affecting broadcasting and audiovisual production even if they conflict with the agreement. While specific U.S. industry interests have argued that Canada may need to rely on Article 32.6 to justify the measures it is taking under the Online Streaming Act, it is important to note that to date the U.S. government has not formally adopted this position. That said, the exemption does not eliminate the possibility of U.S. retaliation; indeed, it explicitly legitimizes it. Under CUSMA, the United States may respond with measures of equivalent commercial effect in any sector if it determines that Canadian cultural policies disadvantage American firms. Canada can, however, challenge whether Article 32.6 is applicable. Also, an argument can be made that the way in which the Online Streaming Act regulates streaming services is not discriminatory, i.e. it does not violate national treatment obligations.

Although Congressman Smucker’s Protecting American Streaming and Innovation Act may never see the light of day as it is but one of many bills introduced into Congress to highlight issues of concern to U.S. industry interests, it nonetheless renders the politics of broadcasting policy quite visible. Smucker’s unlikely counter-legislation—decrying the Online Streaming Act as an attack against U.S. companies, creators, and workers—makes it blatantly clear how debates about cultural regulation increasingly extend beyond national institutions. Such actions function less as the basis for dispute settlement than as policy posturing intended to exert bilateral pressure on Canada.

From Signals to Streaming

Canadian broadcasting policy has long been shaped by historical disputes, cultural tensions, and geopolitical pressures. From the early licensing of commercial radio stations in the 1920s to the establishment of the Canadian Broadcasting Corporation (CBC) that we know (and at least some of us love) today, Canadian broadcasting policy developed not just as an industrial response to spectrum scarcity but also as cultural protectionism against American dominance over Canadian airwaves.

Conundrums aside, legacy regulatory strategies like Canadian content (CanCon) requirements and ownership rules remain measures through which broadcasting policy has sought to pursue cultural objectives beyond economic ones. The Online Streaming Act extends this analog-era regulatory philosophy into the digital age, transforming unresolved debates over the legitimacy of Canadian cultural regulation.

We should also remember that the transformation of broadcasting policy in Canada did not emerge suddenly with the Online Streaming Act. During the CRTC’s Let’s Talk TV hearings between 2013 and 2014, the Commission heard from Netflix representative Corie Wright who argued that online streaming services primarily supplemented rather than replaced traditional broadcasting services. Netflix declined to provide evidence supporting this claim, and the Commission ultimately ruled the argument as anecdotal. This line of uncertainty later informed the work of the Liberal-appointed Broadcasting and Telecommunications Legislative Review panel, whose 2020 report Canada’s Communications Future: Time to Act recommended restructuring communication legislation to reflect a new networked environment. Among its most consequential recommendations was the proposal to extend regulatory authority over online streaming services operating in Canada.

Concerns about the trade implications of regulating online streaming services are, likewise, not new at all. Early in 2020, Professor and Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, Michael Geist, warned that requiring foreign streaming services to contribute to Canadian production funds without equal access to those funds could invite retaliatory trade responses. Similar concerns surfaced in 2022 before the bill passed, when former U.S. Trade Representative Katherine Tai officially took notice of the Online Streaming Act during a CUSMA meeting with Canada’s former Minister of International Trade, Mary Ng.

Despite the unlikelihood of its adoption, Smucker’s Protecting American Streaming and Innovation Act represents less a sudden escalation than a continuation of a contested shift in how cultural regulation is interpreted both within and beyond Canada. This is entirely unsurprising, as platform infrastructures shaped by recommendation systems, black-box algorithms, and cross-border media flows increasingly blur the boundaries between cultural forms and digital markets.

Biography

Christine Rose Cooling is a PhD student in Communication & Culture at York University whose research examines how Canadian cultural policy continues to shape cultural expression in a platform-mediated media environment. Her work focuses on broadcasting regulation, streaming platforms, and the cultural significance of live music within contemporary debates about national identity and cultural sovereignty.

Blacklock’s Reporter (BR) v Attorney General for Canada (AGC): Score One for “David”

A cartoon-style illustration depicting a young boy facing a giant warrior, with a dramatic background. Text overlays include 'BR' and 'AGC'.

Image: Shutterstock (modified)

The ongoing David vs Goliath tussle involving a small web-based Ottawa public affairs journal, Blacklock’s Reporter (BR), that took on the Government of Canada (GOC) over a series of alleged copyright infringements, has just seen a significant new development. On March 19, 2026, the Federal Court of Appeal (FCA) announced its decision in the Parks Canada case, upholding BR’s appeal of a 2024 Federal Court ruling delivered by Justice Yvan Roy. Roy had declared (1) that the use of a password by Parks Canada to access BR content constituted fair dealing under the Copyright Act, and (2) that the licit use of a password does not constitute circumvention of a TPM (technological protection measure, often referred to as a “digital lock”) as defined in the Copyright Act. That decision and its attendant declarations are now vacated. Costs were awarded to BR. This is an important victory for rightsholders and businesses that depend on TPMs to protect paywalled content. It’s also a black eye for the government’s litigator, the Attorney General for Canada (AGC), which sought these declarations as a way of justifying alleged repeated cases of copyright infringing activity by various GOC Departments and agencies.

Let’s review the history. BR is a subscription-based digital journal. Its stock in trade is “Inside Ottawa” investigative reporting. It is, frankly, a thorn in the side of government which is precisely why its role is so important. Its breaks the stories that well-staffed and well-funded departmental communications shops don’t want covered. It doesn’t print government news releases; instead, it provides investigative stories to its customers. An individual can subscribe to BR on an annual basis for a relatively modest sum, currently $314 plus tax, which compares favourably to the digital subscription rates of leading national media organizations. However, larger entities like companies or government agencies that have multiple users require institutional subscriptions. The cost depends on the number of subscribers, i.e. the degree of access. There is nothing unusual about this; it is a common business model. That business model depends on controlling access to the paywalled content. Passwords are commonly used for this purpose.

For a number of years, BR has been fighting the GOC over the government’s unwillingness to pay for bulk subscriptions for its various agencies. Because BR had difficulty in knowing how many employees within a given agency had access to its content, it filed Access to Information (ATI) requests to obtain this information. It then used the ATI revelations–which confirmed there were multiple users (in some cases, thousands) who were not covered by the subscription to BR– to bring suit for copyright infringement against these government agencies. This led the government’s lawyers, through the Attorney General for Canada (AGC,) to accuse BR of entrapment and using copyright trolling as a business model. This ludicrous accusation, which in effect suggests that BR only investigates and reports on what the government is doing in order to sell bulk subscriptions to government agencies, was firmly and rightly rejected by the courts. Given that BR was only suing for the cost of an institutional subscription, it seems evident that their sole objective was to be paid appropriately for the use of their services. However, despite the Court’s repudiation of the trolling accusation, to date BR has not been successful in proving copyright infringement on the part of the GOC and its agencies. The successful appeal opens up the possibility of further court action.

The Parks Canada case was one of BR’s first attempts to assert its copyright, as I discussed in an earlier blog post. In 2013, a Parks Canada employee accessed the BR website and purchased an individual subscription. She then shared the password she obtained with a number of other employees within the agency. BR sued, arguing this was copyright infringement and a violation of its terms of service. The AGC on behalf of Parks Canada contended the use was a fair dealing for research purposes. The nub of the issue was whether the content had been accessed legally, which is a requirement to be able to exercise the fair dealing provisions of the Copyright Act (Section 29). Fair dealing (that is, use without permission for specified purposes) does not apply if the content is protected by a TPM that has been circumvented. Circumvention is described in the Act as using descrambling or decryption or to “otherwise avoid, bypass, remove, deactivate or impair” the TPM. But what was the TPM (the password or the paywall?) and was it “bypassed”? It was a complicated scenario. As was its right, BR announced in 2021 that it had decided to discontinue this particular case and instead focus on infringement that had occurred elsewhere, in another GOC agency.

That should have been the end of it but for the action of the AGC, which did an end-run on BR’s discontinuance motion. This was was due to be officially filed on Monday morning, July 5, 2021. The AGC filed an application for summary judgment and a counterclaim (on a Sunday yet, July 4, the last day possible for such action) seeking the declarations mentioned in paragraph one. The original plaintiff, BR, thus became the respondent. The AGC sought to use the Parks Canada case, which the plaintiff had chosen to discontinue, to obtain broad declarations it could use in other cases brought by BR. For example, it sought a broad declaration that a password was not a TPM (which would imply therefore that password sharing was legal). However, the Federal Court declined to address that issue, limiting its decision to the facts of this one case. Having been forced to defend a case it had sought to discontinue, becoming in effect the respondent, and having lost, BR appealed. It has now been vindicated. As Appeal Justice Wyman Webb of the Federal Court of Appeal (FCA) clearly stated;

“…the Federal Court erred in making the declarations. I would allow the appeal and set aside the Judgment of the Federal Court”.

What has been the reaction in the free-access community that had so openly lauded the initial Federal Court decision? University of Ottawa professor Michael Geist, who crowed that the original decision, now overturned, was a “huge win” for users of copyrighted content–at least those who don’t want to pay for the paywalled content they use—has remained silent. For many years Dr. Geist has been closely associated with CIPPIC (the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa) which was a third-party intervenor in the case, supporting the AGC. While Geist has remained silent, CIPPIC has commented, trying to minimize the impact of the decision by dismissing it as a technical issue. Although Justice Roy’s declarations have been set aside, CIPPIC tries to salvage some usable timber from the wreckage by claiming that his views on fair dealing and passwords remain as obiter (non-binding opinions). However, as this legal blog notes,

“This appellate ruling effectively nullifies the precedential value of the judgment….Moreover, the FCA explicitly noted that the court’s findings…that Blacklock’s paywall was “not the TPM” (as distinct from the password) was obiter dicta and not binding. While the FCA declined to endorse or criticize this comment, it appears that the FCA was skeptical of the findings of Justice Roy.”

Retired IP lawyer Howard Knopf, who maintains a blog titled “Excess Copyright” (which tells you all you need to know about his views on copyright), has written extensively on the BR Parks Canada case over the years. Back in August of 2024, after Justice Roy’s decision against BR, he commented that “I would frankly be surprised, but not shocked, if BR actually does appeal.” He thought BR had more to lose than to gain from doing so. Once BR had launched its appeal, Mr. Knopf informed the world that “the jurisprudence and the factual record suggest that Blacklock’s will lose the appeal.” That was clearly his belief, but he backed it up by asking ChatGPT (I am serious), which agreed that BR’s appeal would be dismissed and Justice Roy’s decision affirmed in all respects. Then came the Appeal Court’s decision. Oops. How to explain that? Easy. It was a “pyrrhic victory”. Blame ChatGPT. After all, it can’t be expected to be right all the time.

Why was the victory so “pyrrhic” (meaning not worth the cost of victory)? Knopf doesn’t say, although he is forced to acknowledge that the AGC’s motion for summary judgment has been dismissed, the declarations are voided, and costs have been awarded to BR. Having got the Parks Canada case–which it wanted to discontinue–set aside, BR is free to pursue other options, and it may do so. While Justice Roy’s views on fair dealing have not been reversed, they have also not been accepted. They have been nullified (set aside). This is not a pyrrhic victory; it is real and substantive.

The Government of Canada has deep pockets when it comes to litigation. Rather than waste these taxpayer-funded resources in pursuing small businesses who are seeking to get paid fairly for their work, as it clearly did with its “too clever by half” legal manoeuvre on the Parks Canada case, it should walk its talk about supporting Canadian media. This means doing the right thing and paying for the access it provides to its employees. Instead, it unleashed the legal dogs at AGC to try to teach BR a lesson. That strategy has just blown up in its face. Score one for David.

Copyright and AI Training: The UK Rethinks its Blatant Content Giveaway Scheme—But What Comes Next?

A robot holding a British flag with the text 'GIVE ME YOUR CONTENT FOR FREE' and 'OPT OUT IF YOU CAN' displayed prominently.

Image: Shutterstock (modified)

On March 18 the UK’s Labour government finally confirmed what everyone has known for months, that its preferred policy option of allowing AI developers to freely use copyrighted content to train their AI algorithms unless rightsholders specifically opt out, was a shambles. The government had been backpedalling for a while but the issuance of the Parliamentary-mandated Report on Copyright and Artificial Intelligence, all 125 pages of it, finally drew a line under all the prevarications. The paper was issued by the two Departments that represent the opposite ends of the spectrum when it comes to the copyright/AI question, the Department for Science, Innovation and Technology and the Department for Culture, Media and Sport. The inconclusive results reflect this duality.

The government’s initial Consultation Paper had proposed four options to deal with the issue of unauthorized use of copyrighted content to train AI platforms;

Do nothing (status quo). Copyright and related laws would remain as they are. It would be left to the courts to settle disputes between rightsholders and unauthorized users;
Strengthen copyright by requiring licensing in all cases of use of copyrighted content;
Legislate a broad text and data mining (TDM) exception to copyright law. (Britain already has a TDM exception but it is limited to non-commercial research purposes);
Create a data mining exception with opt-out and transparency measures. Rightsholders would be required to notify when their works were not to be accessed, and AI developers would be required to disclose what works they had used.

The Paper indicated that the last option, Option 3, was the government’s preferred choice. Unfortunately–for the government–fully 97% of the 11,520 respondents to the consultation survey disagreed. To put it another way, only 3% of respondents endorsed the government’s preferred option. (Note to UK government: Wipe egg off face). Rightsholders did not want the onus to be on them to opt-out (given that copyright law is based on the user, subject to fair dealing and other statutory exceptions, needing to obtain permission in advance from a rightsholder), and because opting out is not necessarily easy to do. AI developers objected to the transparency provisions. They preferred Option 2, a broad TDM exception allowing them to help themselves to whatever content they deemed useful for AI training without let or hindrance. The last thing the tech industry wants is to be required to document what content it has appropriated without authorization. To oppose Option 3, rightsholders mounted a widespread and very effective campaign to remind legislators of the value of Britain’s creative industries, both economically and culturally. Everyone from those two noble knights, Sir Elton John and Sir Paul McCartney, to Ed Sheeran, Dua Lipa, Kazuo Ishiguro, Andrew Lloyd Webber, Cat Stevens, Sting, Tom Stoppard, and on and on—maybe everyone who is anyone in the cultural world in Blighty, except Banksy, spoke out. Now the government has thrown up its hands and admitted it got it all wrong. The blatant content giveaway cum confiscation is not going to happen, at least not in the form initially proposed.

The Starmer government’s particular slice of humble pie was worded as follows;

We must take the time needed to get this right. We will not introduce reforms to copyright law until we are confident that they will meet our objectives for the economy and UK citizens. This means protecting the UK’s position as a creative powerhouse, while unlocking the extraordinary potential of AI to grow the economy and improve lives. Any reform must ensure that right holders can be fairly rewarded for the economic value their work creates, and that they are protected against unlawful and unfair use of their work. It must also ensure that AI developers can access high quality content. It is clear through the consultation and our subsequent engagement that there is no consensus on how these objectives should be achieved.

Truer words were never spoken. And there will never be consensus as long as one of the parties is an entitled tech industry that feels it can freely confiscate valuable content produced and owned by others, and which has no qualms about accessing pirate websites to do so. Legal consequences are required to bring it to the negotiating table.

Although we now know the UK government will not forge ahead to adopt the Option 3 opt-out proposal, we still really don’t know what it will do. Amidst all the relief from the creative community that Option 3 has been dropped as the chosen way forward, there is still a sense of unease about what might happen instead. Composer Ed Newton-Rex, one of the leading activists amongst the creators, has voiced his concerns on X. While the government has withdrawn its preference for Option 3, it is still on the table as is the possibility of some other form of TDM exception. He is worried that while there is talk of compensation for rightsholders, permission does not seem to be part of the equation. With the dropping (for now at least) of Option 3, transparency requirements for the tech industry are also once again in doubt.

What will happens next on this issue in the UK? More study, more research, more monitoring of developments. In other words, back to Square One. The one new development coming out of the government’s Report is an acknowledgement that something needs to be done with respect to digital replicas. As described in the Report, this involves the use of AI to replicate or mimic the appearance or voice of individuals. Current copyright is not well adapted to protect against such misuse. The result could be the introduction of a right of personality in the UK.

When it comes to the intersection of copyright and AI development, the UK government is trying to resolve an issue with which many countries are grappling. The question is how to get a slice of the AI investment pie by incentivizing the tech industry without throwing the creative community under the bus. In the US, finding the balance has largely been driven by the courts. The White House has just issued its National Policy Statement on Artificial Intelligence. Among its many policy positions, the Statement indicates this question should continue to be left to the courts to decide, even though the White House believes that unauthorized and uncompensated use of copyrighted material for AI development is fair use under US law. In Australia the government looked at the same issue and in the face of vocal and organized opposition from the creative sector, explicitly ruled out introducing a TDM exception. India tried to find the balance by proposing the establishment of an unworkable compulsory licence regime, a scheme that I described in a recent blog post as the “worst of all worlds”. It was as widely condemned by both creators and tech developers as the UK’s Option 3. Canada, which like Australia does not have a TDM exception in its copyright law but which is being pushed by the tech industry to loosen restrictions in the face of current and anticipated lawsuits, is facing similar questions.

While this may seem to some (like the UK government for example) as an almost intractable problem that will require much more work, study and consultation to resolve, in fact it is not all that difficult. Cultural industries generally are not opposed to the development of AI. In fact, many creators use it to assist their work. But they want to have some say over whether or how their work is being used and want to receive compensation when it is used. It is true that some individuals may wish to have nothing to do with AI and would like to see it go away. That, however, is not going to happen although their right to have their work not used to develop applications that may unfairly compete with the content they produce must be respected. The best outcome is a win/win scenario where creators voluntarily opt in to the AI development process and share in its benefits. This is already happening on an increasingly large scale with respect to commercial licensing deals, with news media outlets, studios, music publishers and book publishers all signing licensing agreements with AI developers. Left out at this stage are most individual authors and artists and small publishers, but voluntary collective licensing can fill the gap. As a recent example, at the recent London Book Fair in March of this year, the first stage of an opt-in collective licensing initiative was launched by Publishers Licensing Service to supplement direct agreements between publishers and AI companies.

The “magic formula”–the win/win solution–which so many countries are finding so hard to unlock is based on three principles, well articulated by Canada’s Coalition for the Diversity of Cultural Expression (CDCE);

1. Authorization (Permission)

2. Licensing (Remuneration)

3. Transparency (Disclosure)

Acceptance of these three cardinal principles by AI developers would cut through what the UK government seems to see as a Gordian Knot. The solution is not all that difficult, but it requires courage to stand up the tech industry’s threat of taking their ball and going elsewhere to play. Let’s hope that as the UK and other governments go back to the drawing board, they use these principles as guideposts to arrive at a solution that, at the end of the day, best serves everyone.

Another Self-Proclaimed “Robin Hood” Platform Taken to Task: Anna’s Archive Sued by Thirteen Publishers

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Earlier this month, thirteen publishers sued Anna’s Archive (a website that provides access to pirate libraries) for copying and distributing millions of infringing files, both books and research journal articles. Anna’s Archive claims to host over 63 million books and 95 million articles on its site. Like a number of other providers of pirated content, the Archive presents itself as a non-profit seeking altruistically to provide open-source knowledge to all and sundry. It is more than happy to provide unauthorized access to OPC (Other People’s Content). Not only that, it disclaims responsibility for any copyright infringement that occurs because it only links to its sources, although they happen to include the world’s best-known pirate libraries. On its website it states that it mirrors or collaborates with Sci Hub, Library Genesis (LibGen) and Z-Lib, all notorious pirate sites, while it scrapes Hathi, Internet Archive and DuXiu. Some of these sites, to be sure, offer legitimate content, or a mix of copyright infringing and non-infringing material. Others, such as Sci-Hub (which I wrote about here), offer almost exclusively infringing (i.e. pirated) content. This action by the publishers marks the latest move in the endless struggle to preserve authors’ and publishers’ rights against copyright opponents who use the smokescreen of “free, public knowledge” to undermine legal protections for authors.

The struggle has been going on for years and takes different forms. Each time action is taken, new means to justify piracy and evade sanctions emerge. Anna’s Archive itself was founded only in 2022 out of Pirate Library Mirror (PiLiMi), a digitized library of pirated books. Notably, PiLiMi was one of the main sources for the pirate library compiled by Anthropic to train its AI platform, a direct result of which was Anthropic’s record $1.5 billion class action payout to a group of authors in September of last year. (When the End Does Not Justify the Means, Anthropic’s $1.5 Billion Lesson). While pirate libraries are cheap and easy sources of content for AI training, the results of the Anthropic case highlight the legal risks involved (META beware). The suit against Anna’s Archive will heighten those risks for American AI companies who access pirated content, although it is unlikely to deter Chinese and Russian developers.

To bring a copyright infringement case, plaintiffs must prove that specific works have been infringed. In the case of Anna’s Archive, the publishers (who license copyright from the authors with whom they have contracted) have listed 130 titles that have been infringed. Under US law, they can seek statutory damages of up to $150,000 per work for wilful infringement, for a total claim of $19.5 million. But it is not the money they are after, knowing full well from past experience that the operators of Anna’s Archive will not appear in court nor will they pay if the court finds against them. The people behind the Archive and their location are not known. Rather the intent of the plaintiffs is to obtain injunctions requiring third parties operating in the US such as hosting and service providers, data centres, and domain registrars to terminate support to Anna’s Archive. Unfortunately, unlike in many countries, the US has no legal provision for site blocking that would enable rightsholders to obtain court orders requiring ISPs to block offshore pirate websites, like Anna’s (which keeps changing its domain registry). But depriving it of hosting and domain services in the US will still disrupt its business. And make no mistake, Anna’s Archive is a business, not a “philanthropic” enterprise engaged in a purist pursuit of knowledge.

While the Archive solicits donations, it also offers premium (high speed) downloads for $200,000 (in crypto currency). It needs to solicit crypto because access to reputable payment platforms has been blocked. Guess where these downloads are going? To AI (LLM-Large Language Model) training. Not only does Anna’s Archive actively undermine the copyright protection that allows authors to earn a living through its unauthorized distribution of copyright protected works, but it further targets the creative sector by facilitating the unauthorized use of such works for AI training. This can result in AI generated works that directly compete with the works on which they were illicitly trained.

As I noted, Anna’s Archive is an aggregator of pirated content from various sources, one of which is Sci-Hub. Sci-Hub’s specialty is the theft of academic journals. Like the operators of Anna’s Archive, those behind Sci-Hub proclaim altruistic motives (“breaking academic paywalls since 2011”) yet what Sci-Hub is really doing is trying to destroy the academic publishing model. This model exists for a good reason. Academic publishing is not only an integral part of academic advancement and evaluation, it is also essential for the dissemination of credible, peer-reviewed research. What is the purpose of research if the results of documented investigation are not published on platforms that are credible? If reputable journals do not exist, how can reliable knowledge and trusted research be made available? There are already enough dubious “pay to play” journals in the marketplace to cause confusion, which is why established journals play such a key role. But to produce quality requires resources–for peer reviewing, editing, secure distribution, and so on.

By and large these tasks are undertaken by a few large-scale, very competent, academic publishers who, not surprisingly, charge for their services. Subscription fees, largely paid by university and other libraries, are the prime source of revenue. Someone has to pay for the work that goes into producing these products. If the subscription model is gutted by the “free” distribution of academic journals, the whole publishing model is undermined to no-one’s benefit. Attacking the business model of academic publishers not only removes the incentives for authors to produce and compete for space in prestigious journals, but it discourages publishers from undertaking the risks of distribution. This clearly does not advance the cause of disseminating knowledge. Indeed, it produces just the opposite effect, a contradiction that seems to have not occurred to the operators of pirate sites who are ostensibly motivated by a desire to freely share the fruit of all human knowledge. Academic publishers have naturally gone after Sci-Hub and, as I wrote last year, it has finally been blocked in India, one of the main jurisdictions where it was widely used. India is not the prime culprit, however. The number one and two countries for use are, respectively, China and the United States.

Another form of piracy that masqueraded as altruistic knowledge-sharing (note that it’s always someone else’s content that is freely shared) was the Internet Archive’s “Controlled Digital Lending” (CDL) model. This was a contrived means to try to justify doing an end run on licensed digital copies of copyrighted works. Under the unproven theory of CDL, it was fair use to lend a digital version of a hard copy work held in a library, substituting the digital version for the original, so long as the original was kept in inventory while the digital copy was on loan. Only one digital copy could be loaned against each copy of the original work. There were, however, several holes in the Internet Archive’s (IA) CDL arguments.

First, it was “an inconvenient truth” that the IA had to make a full unauthorized digital copy of the original work, itself an infringement but also one that damaged the market for the authorized digital version. Second, its argument that a hard copy existed to back up every digital copy on loan was shown to be a fiction. The IA tried to claim the hard copies “on file” were held by established libraries with which it was affiliated (it obtained access to the holdings of these libraries by offering free digitization) but at trial, where it was sued by the American Association of Publishers, it was clearly shown that no records were kept. The supposed one-to-one “own to loan” ratio was never intended to be respected. A final nail in the Internet Archive’s coffin was the fact they generated revenue off the CDL model they maintained.

As in the case of the current suit against Anna’s Archive, only a limited number of works (127 in total) was at issue in the Internet Archive CDL case. These were works to which the publishers held rights, had published e-book versions, and were proven to have been infringed. Despite this, the court’s decision in favour of the publishers, which was upheld on appeal, knocked the wind out of the CDL model. It hasn’t completely gone away (there are still some in the US who argue it may be valid in certain contexts) and it has never been litigated in Canada. However, after the US decision, I concluded that its legal status in Canada was unclear but risky. Many libraries are not happy with the existing e-book licensing model, but CDL is not the answer.

These schemes to freely disseminate “knowledge” (i.e. OPC, often created with great effort and at considerable expense by a rightsholder) are not as altruistic as they purport to be. All use someone else’s work to generate revenue. Sometimes this revenue is in the form of “donations”, but how much of the donated funds go to maintain the illicit operations and how much to other purposes is by no means clear. In any event, to steal in the name of charity, or to claim to be redistributing property (such as published works) as a self-appointed Robin Hood, is a thin excuse. All of these schemes have the effect of undermining the lofty goals they claim to support.

If the publishers win their sought-after injunctions against Anna’s Archive, it will be another attacking move in the digital chess game of pirate v. publisher (with the AI industry looking on as an interested observer). The Internet Archive case, Sci-Hub and now Anna’s Archive are all examples. Canadian publisher Kenneth Whyte of Sutherland Press traces it back even further to the 2004 Google Books case.

Frustrating as it may be for authors and publishers, taking on these pirate redistributors of other people’s copyrighted content ad seriatim is the only way to preserve the integrity of the ecosystem that produces the knowledge we all use and benefit from–knowledge that is encouraged, incentivized and protected by copyright. The self-righteous Robin Hoods, whether it’s the Internet Archive, Sci-Hub or most recently, Anna’s Archive, not only threaten to destroy the very system they profess to be promoting, they are also not averse to filling the purses they have hidden beneath their outlaw’s cloaks.

Why the High Court of Justice Denied UK Broadcast Royalties to US Performers

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In my most recent post, I wrote about the unsuccessful effort of the American Federation of Musicians (AFM) to overturn a British regulation that ensured US performers would continue to be denied payment of royalties for recordings broadcast over radio in Britain. The British action came after a public consultation and was based on the principle of material reciprocity; British performers are denied those same benefits in the US. This also ensures that royalty revenues that otherwise would have gone to US performers are distributed in Britain as long as British performers in the US are not entitled to receive royalties for their recordings. While Britain has long maintained a policy of material reciprocity (in effect, treating US performers as badly as the US treats its own and foreign performers), the AFM saw an opportunity to bring a legal challenge because Britain had just expanded the mutual recognition of royalty rights for performers as a result of its accession to the CPTPP Trade Agreement (the Comprehensive and Progressive Agreement for Trans-Pacific Partnership). This is the sequel to the earlier blog post.

As part of the part of legislation introduced to implement its accession obligations to the other eleven members of the Agreement (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam), the UK agreed to grant national treatment with respect to royalties to performers from those countries, and to performances first published in those countries. As reported by the International Comparative Legal Guide;

“Parliament amended the Copyright, Designs and Patents Act 1988 to widen the circumstances in which performances would qualify for protection, including where recordings were first or simultaneously published in a qualifying country. Those amendments appeared to extend statutory rights to a broader class of foreign performers, including those from the United States.”

To close this potential loophole, regulations were subsequently passed allowing the UK government to impose restrictions limiting the scope of the amendment to nationals of CPTPP member states only. Ironically, even though the US was the original inspiration for the Trans-Pacific Partnership, which later became the 12 nation CPTPP, the United States is not a member because–in his first act as President in 2017–Donald Trump announced the US was withdrawing from the Agreement. To ensure that benefits arising from the CPTPP apply only to citizens of countries that are members of the Agreement, the British government clarified and narrowed the grant of national treatment through the Copyright and Performances (Application to Other Countries) (Amendment) (No. 2) Order, 2024. (the “Order”). This legislative word salad is hard to decipher but the end result was the continued exclusion of US performers, reflecting the concerns of the British music community. In a further twist, British law allows the payment of royalties to US producers, but not performers. The AFM challenged the Order.

The AFM claimed the Order conflicted with three international treaties, the Rome Convention of 1961, the WIPO Performances and Phonograms Treaty (WPPT) and the CPTPP, even though the US is not a Party to two of these, the Rome Convention and the CPTPP.

In the case of the Rome Convention, the claimants’ case, as summarized by the Court, (Para 24) was that:

“…since 1963, the UK has been obliged by the Rome Convention to provide for payment of equitable remuneration to US national performers whenever a phonogram carrying their performances is published in a Contracting State within 30 days of its first publication, regardless of the fact that the US is not a party to the Convention and regardless of the fact that US law provides for no equivalent right to UK performers when phonograms carrying their performances are broadcast or played to the public in the US.”

The Convention requires granting of national treatment to performances that are published in a contracting state within 30 days of original publication, regardless of the nationality of the artist, unless the contracting state has opted out. In 1963 Britain declared that it would not grant national treatment to recordings produced by a national of a non-Contracting State, but with a caveat “unless…the phonogram has been first published in a Contracting State…”. That state must also have not opted out of national treatment. The AFM claimed this wording meant that broadcasts in the UK of recordings produced in the US that had also been published in a Rome Convention country simultaneously or within 30 days of original publication qualified for equitable remuneration (royalties). Most US recordings are usually released abroad within a month of their US release.

In the case of the WPPT, to which both the US and UK have acceded, national treatment is required unless a derogation has been noted. A derogation would allow a member to restrict royalty payments if not provided reciprocally. However, the UK has made no such derogation.

Finally, with regard to the CPTPP, the claimants’ case was based on the fact that if a phonogram was first published in a CPTPP member state, (e.g. Canada), it should be accorded national treatment regardless of the nationality of the performer. This is reminiscent of the “Backdoor to Berne” used by US book publishers before the US acceded to the Berne Convention in 1989, whereby they simultaneously published in Canada to get the benefits of the global protection afforded by membership in the Convention, even though the US was not a member.

On the face of it, the AFM’s arguments would seem to have legal logic even if the end result would be to give US performers rights that they and foreign performers do not enjoy in the US. The validity of their arguments was further reinforced by the fact that the British government, subsequent to the passage of the 2024 exclusion Order, amended its reservation to the Rome Convention to remove the controversial wording of “unless…the phonogram has been first published in a Contracting State…etc”. But in any event, the AFM’s claims were all dismissed–but not because the Court rejected the arguments on their merits. The case was dismissed because the treaties referred to have not been incorporated into British legislation.

Under UK law (and US law too, for that matter), treaties are not self-executing. Their provisions must be enacted into domestic law insofar as legal changes are required for treaty compliance. An example would be changes to the Customs tariff. Changes are made to domestic legislation to implement a treaty only to the extent necessary. The full text of a treaty is not enacted into legislation. A treaty is not binding with respect to domestic law; legislation is. The full text of a treaty is a document in international law, but it is not necessarily part of the corpus of domestic legislation. In legal terms, the treaty is “unincorporated” in terms of domestic legislation. As explained by Google’s AI overview, which is probably about as concise a definition as you are going to get:

“An unincorporated treaty is an international agreement ratified by a state’s executive branch but not formally enacted into domestic law by its legislature (e.g., Parliament or Congress). While binding internationally, these treaties generally do not create enforceable rights or obligations for citizens in domestic courts.”

Or, to quote from the Court’s decision (para 117)

“It is to be expected that the UK government will seek to comply with the UK’s international obligations as it understands them to be, but the fact that it says so (either of its own motion or in response to questioning, and with whatever degree of emphasis or conviction) does not turn the provisions of unincorporated treaties into a source of rights and obligations in domestic law”.

Thus, the AMF challenge failed. It was the view of the British High Court of Justice that here is no requirement in British law to grant national treatment royalty rights to US performers for music broadcast in the UK, despite whatever treaty obligations the UK may have taken on. Note the similarity to the Irish Music Case in the US that I referred to last week. The US was found to be in default of its international obligations under the WTO but because the US Administration was unable to get Congress to amend US law, Irish musicians have been blowing their tin whistles in vain for more than two decades. With respect to performance royalties, as I noted in last week’s blog post, maybe it’s time the AMF redoubled its efforts to fix the problem at home. The Court in effect suggested this was the solution; (Para 69)

“…the reason why US performers receive no such remuneration is that US law does not provide equivalent rights to UK performers. The position would be different if US law were to provide for reciprocity in this respect…”;

Once the US treats performers with the same respect and benefits as the rest of the world, these issues of material reciprocity vs national treatment would quickly disappear.

US Musicians Unsuccessfully Seek Royalty Benefits in UK they are Denied in US: Maybe They Should Fix the Problem at Home?

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US artists and musicians, unable to get Congress to grant them royalties for their performances broadcast over terrestrial radio networks in the US, continue to try to obtain in foreign countries what they cannot get at home. Sometimes they have been successful, as in the case of Canada where as part of the update of NAFTA and its replacement by the Canada-US-Mexico (CUSMA) Agreement (or USMCA if you prefer) in 2020, Canada granted US performers “national treatment”. This means they get treated “no less favourably” than—i.e. just as well as—Canadian performers with respect to royalty payments. In other words, they get paid. Canadian performers in the US also get national treatment, which means they get treated just as badly as their US counterparts, receiving no royalties at all when their music is broadcast terrestrially. The US music industry, or at least the part of it affected by US restrictions on royalty payments (performers and labels), has long lobbied to remove this inequity. A few years ago legislation designed to fix this problem, the American Music Fairness Act, or AMFA, was introduced into Congress. As I explained at the time;

“US terrestrial radio stations are not required to pay royalties to performers or labels for playing recorded music on air. Online broadcasters and streaming services do, but not over-the-air AM/FM radio stations. Terrestrial stations do, however, pay royalties to composers and songwriters for music played on air, but not to performers.”

It is a strange, assymetric exemption from the requirement to pay royalties. Passage of AMFA would close this loophole by ensuring that performers (artists, singers and musicians) as well as owners of the sound recording copyright, normally labels, receive royalties when a work is broadcast commercially on terrestrial radio. But the AMFA bill, and successive versions introduced since, did not make it across the finish line.

If this seems odd and inequitable, it is. It relates to the influence of the National Association of Broadcasters (NAB) in Congress. For decades the NAB has managed to block legislation that would fix this anomaly by arguing that terrestrial stations provide “free airtime” that promotes new recordings. This is a specious argument akin to the canard that platforms distributing pirated content promote legitimate business by giving new content greater exposure. If the “free exposure” argument was ever valid, it is no longer in a world where new music is promoted on digital radio channels and through Spotify, YouTube and Tiktok. Nowadays, triggering algorithmic discovery is key, yet over-the-air radio stations are still getting a free ride when playing recorded music. Given the strength of the NAB lobby don’t look for AMFA to pass Congress any time soon, despite the concerted efforts of the American Federation of Musicians. And it is not just a US problem. Not only do US performers not get paid when their music is broadcast terrestrially on radio in the US, neither do non-US performers or labels. This leads to another dimension of the issue.

The failure to allow foreign performers to collect royalties in the United States usually has a knock-on effect for US artists when their music is played abroad–unless the US has been able to obtain national treatment through a special bilateral agreement. Performers’ organizations in other countries object to US musicians being granted royalties in their own country because if US artists gain access to a national royalty pot, the amount paid out to domestic performers is reduced (by the amount paid to US artists). When US artists are denied royalty payments on the basis of reciprocal as opposed to national treatment, the collected royalties that would normally go to American performers are redistributed to domestic counterparts or retained by performing rights organizations for the benefit of the domestic music industry as a whole. Normally, payments going to US performers abroad would be offset by payment of royalties in the US to foreign musicians–and everyone would gain–but because of US legislation, the US royalty revenue stream for this music category is non-existent, for everyone. Therefore, from the point of view of domestic musicians, it is unfair for US artists to expect a benefit abroad that is denied to foreign performers in the US. International copyright treaties allow for withholding of national treatment benefits under the principle of material reciprocity. Put bluntly, this means that “If you withhold royalty payments from our performers, we will do the same to yours”.

While material reciprocity is a well recognized principle of international copyright, it’s not all that simple because there are provisions in some international treaties that require national treatment (i.e. payment of royalties) for recordings based on where they are first released even if the artists themselves are from countries (like the US) that deny royalty benefits. This would override reciprocity provisions. In 2020, the EU Court of Justice ruled that denial of royalties to US performers in Ireland on the basis of reciprocity was inconsistent with EU law, which does not mention reciprocity. Since then the Netherlands and Sweden have dropped the reciprocity rule and allow payment to US performers, but most EU countries still do not. Nor does the UK, a non-EU member since January 31, 2020.

It is ironic that Ireland was the jurisdiction where US performers made a legal breakthrough in terms of overseas royalty payments given the WTO Irish Music case. Here the US continues to ignore a WTO panel finding made over 25 years ago, in 2000. The WTO panel ruled that another royalty exemption, in this case a US law that allows business establishments to play licensed music without royalty payments as long as it is “background music”, is non-compliant with US treaty obligations. The US Administration at the time was unable to get Congress to amend the law and offered to pay compensation, but this lasted only three years. This case remains an outstanding irritant between the US and the EU, with the US continuing to say that it will “work closely with the U.S. Congress and will continue to confer with the European Union in order to reach a mutually satisfactory resolution of this matter.” So far nothing has happened, and Irish musicians are out of pocket at least $1 million dollars a year for Irish music played as background entertainment in US business establishments. (i.e. Irish pubs in the US).

If you are looking for consistency in abiding by trade obligations when it comes to large countries versus small ones, you will be disappointed. The Irish Music Case is a good example of assymetric respect for international trade rules. The Donald Trump technique of respecting trade obligations very selectively, or not at all, is not a new phenomenon, although it is far more apparent today. In any event, if you are an advocate for a particular constituency, such as US performers, consistency is not the issue. Results are. It was in this vein that the American Federation of Musicians (AFM) challenged recent British legislation that denied payment of royalties to US performers. The UK has maintained the principle of material reciprocity for many years, but its recent accession to the CPTPP Trade Agreement (the Comprehensive and Progressive Agreement for Trans-Pacific Partnership) opened the door, or so thought the AFM , to revisiting the issue. They brought forth a number of interesting arguments, but in the end did not prevail. In my next blog post, I will look at the issues raised, and the reasons for the British court’s decision.

At the end of the day, the best solution for everyone would be to close the US loophole. This would eliminate the reciprocity issue once and for all. Maybe it’s time the AFM redoubled its efforts to fix the problem at home.

Korea’s AI Action Plan: Declaring War on Creators?

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In the scramble to jump on the global AI bandwagon, Korea has floated a proposal that would supposedly remove “legal uncertainty” for AI developers who use copyrighted content to train AI platforms. Unfortunately, the proposed “solution” threatens to throw Korea’s globally renowned creative sector under the bus. Nor does it remove the uncertainty.

As part of President Lee Jae-Myung’s National Artificial Intelligence Strategy, its Presidential Council has put forward a 98 point “Action Plan”, a blueprint for implementation. There are many aspects to an AI strategy, but a key element is to ensure legal clarity with respect to the use of content for AI training, especially copyrighted content. The Action Plan purports to do this. Its Point 32 proposes the introduction of “explicit exceptions under the Copyright Act to allow copyrighted works to be used without legal uncertainty (emphasis added) in the processes of collecting and analyzing data available on the web”. In other words, introduction of a copyright exception for text and data mining (TDM), subject to certain conditions such as some form of remuneration, transparency, and opt-out features for rightsholders.

If the goal is to remove “legal uncertainty” regarding the use of copyrighted works, this proposal falls short of the mark. No exception can provide 100% certainty given the Berne Convention requirement that any exception meet the so-called “three step test”, meaning that an exception is permitted only in certain special cases, provided that it does not conflict with normal exploitation of the work and does not unreasonably prejudice the author’s legitimate interests. While there will always be a degree of uncertainty regarding exceptions, the good news is there is a ready alternative. The surest way to ensure legal certainty is to encourage licensing of content from rightsholders. The problem with the introduction of a TDM exception—or even the discussion of a possible TDM loophole–is that it diminishes the likelihood of reaching licensing solutions by reducing the pressure on AI developers to open their wallets to reach licensing deals.

It is even more bizarre that the tech industry is pressing for a TDM exception given that Korea is one of the few countries, alongside the United States, that has adopted a fair use provision in its Copyright law. This was done in 2011 as part of the implementation of the Korea-US Free Trade Agreement after heavy lobbying by the tech sector. Fair use allows courts to make case-by-case judgements as to whether a given use meets fair use criteria, thus potentially allowing reproduction of copyrighted material without advance permission from the rightsholder. If free use of copyrighted material for AI training can be shown to be “fair”, why is a TDM exception needed? Even in countries where fair use does not apply (which is most of the world), there is no convincing case or consensus on the need for a TDM exception; there is even less reason for one in a state that has already adopted fair use.

Point 32 of the Action Plan takes note of the existence of fair use in Korea, commenting that the Ministry of Culture, Sports and Tourism is preparing fair use guidelines. These are to provide interpretive guidance on the exemption provisions of the Copyright Act to enable companies to utilize copyrighted data “with greater confidence”. Despite this, the Action Plan claims these guidelines alone are unlikely to fully eliminate uncertainty and judicial risks. Voluntary licensing, however, would eliminate both.

It is well established that AI developers need vast amounts of data to improve the performance of their AI platforms. To date they have largely employed a “take first, ask later” policy. This has led to numerous lawsuits pitting rightsholders against the tech industry, mostly but not exclusively in the US. AI developers in the US have argued that what they are doing amounts to “fair use” because the final AI product is used for a different purpose from the original and thus does not compete with it. That is highly debatable, especially with image and music-based AI works. To date, the results from the US courts have been mixed.

The legality of the tech industry’s unauthorized use of copyrighted content is an issue that a number of countries, in Asia and around the world, are looking at. Various solutions have been proposed to eliminate the uncertainties that arise from leaving the decision to the courts. Among these are TDM exceptions which have been introduced, albeit with strict limitations, in the UK, the EU and Japan. In the UK for example, use is limited to non-commercial purposes. In the EU, it must be accompanied by transparency requirements and opt-out provisions for authors. In Japan, if the unauthorized user derives commercial benefit from the content, the safe harbour does not apply. Australia has explicitly ruled out introducing a TDM exception in order to protect its creative sector, while many others (eg. India, Canada) have no TDM provision in their copyright law. As noted above, the clearest way to remove any uncertainty about the legality of using copyrighted works is to incentivize and recognize voluntary licensing as the solution. This ensures that rightsholders receive appropriate compensation for the work they have put into creating content, while guaranteeing legal certainty for licensees.

The Korean strategy paper argues that AI companies are required to obtain individual consent from each copyright holder “leading to significant costs and time burdens in securing high-quality training data”. But large amounts of high-quality content can be accessed through voluntary licensing agreements with major content creation companies such as studios, publishers, broadcasters, music labels and so on. As for individual authors and artists, one possibility is to look at the model currently used for licensing print and music content through Collective Rights Management Organizations as a supplement to voluntary licenses signed with major rightsholders.

In addition to being instructed to prepare the necessary amendment to the Copyright Law for presentation to the National Assembly by Q2 of this year, the Culture, Sports and Tourism Ministry, in cooperation with the Ministry of Science and Technology, is to “promulgate standard contract templates for the licensing and transfer of copyrights for AI training”. This is the kind of heavy-handed market intervention that is guaranteed to stifle voluntary licensing. Not only that, it amounts to expropriating the rights of Korean creators to manage their works.

The Action Plan gives a nod to the importance of compensating rightsholders and claims it wants to establish a system that respects the rights of creators. However, given the size and importance of Korea’s cultural industries, from film to K-Pop to literature, it is surprising there isn’t greater recognition of what an important strategic and economic asset this sector represents for Korea. Although the Strategy acknowledges that content industries should be able to share the benefits of growth in the AI industry, the proposed solution is unbalanced and biased toward clearing any so-called “obstacles” to unimpeded use of content. As a result, just days after the extremely brief (20 day) consultation period on the Strategy had closed, in mid-January sixteen creator and rightsholder groups issued a strong statement condemning the Action Plan, labelling it “an attempt to fundamentally undermine copyright as a private property right”.

While paying lip service to creator’s rights, the Plan does not address how creators can enforce these rights (other than through the creation of opt-out protocols, which stands the normal copyright procedure of seeking permission prior to usage on its head). The Strategy seems to lead to what has been described by many as a “use now, pay later” system, with little information on how payment would be calculated or implemented. On the other hand, prior, voluntary licensing of content for AI training is a solution that would respect the rights of Korea’s creators while providing the welcome revenue sharing and income stream for which the Strategy advocates. Strong content industries benefit AI development in Korea by encouraging continued creation of the valuable Korean language content so necessary to refine and improve AI models. Conversely, providing the tech industry with an escape hatch to avoid licensing by instituting a TDM exception is the surest way to kill a licensing market for AI content. It will only continue the legal uncertainty that the Presidential Council seems to feel is hindering AI development in Korea.

The one-sided formulation of the Strategy to date has provoked an inevitable negative reaction from Korea’s cultural industries. This is not surprising since the strategy of the tech industry, in Korea and elsewhere, is to avoid dealing with ministries directly responsible for culture and copyright and instead lobby industry, technology and science ministries to bring pressure for changes to copyright law. This adversarial stance is unfortunate as the content and tech industries need and can help each other. The Strategy needs to be amended so rather than throwing the cultural and copyright industries under the bus in the name of facilitating AI development, Korea provides the framework for a mutually beneficial and legally certain relationship. This is best done by upholding longstanding copyright principles and encouraging the growth of a voluntary licensing market for content used in AI training.

Shssh! It’s the Silent Book Club

A diverse group of five people standing in front of a clear blue sky, each with a finger to their lips, signaling for silence or a secret.

Image: Shutterstock.com

I don’t remember when I first heard about silent book clubs (it was fairly recently) but I was delighted to find out through LinkedIn that one existed in my hometown. I have never been a member of a book club, although my wife is a member of at least two, or is it three? I have always been chary of making the commitment to read a certain amount of content by a set date, given how easily distracted I am by the normal run of events, and so have never stepped up to join one. (As an aside, I am delighted that my wife enjoys them though, because periodically she hosts one of her groups at our home with the happy result that after everyone leaves, there is lots of leftover home baking to enjoy). But I digress. One of the advantages of the silent book club format is that there is no commitment to read a certain book by a certain date. You can read whatever you want, at your pace, and simply show up to discuss your book, (or not), and learn about others.

According to the website Silent Book Club (trademark registered, apparently), it all started in San Francisco in 2012 (although I suspect the format has been going on for much longer than that). There is a community of over 2000 chapters in more than 60 countries ranging from Iceland to Indonesia. You can go on to the website to find one in your community. While there you can also order a BYOB (Bring Your Own Book) hat or sign up for a book reading retreat in Italy or Hawaii.

Silent book clubs are supposedly attractive to introverts, and it is true that reading a book can be a pleasurable solitary experience not necessarily shared openly with others. But it can also be a social experience; think of Grandma and Grandpa silently rocking by the fire while they read their books together(maybe in silence broken only by the ticking of the wall clock) or people congregating in libraries to read in each others’ company (silently). In the case of silent book clubs, after a period of quiet reading participants are encouraged to share with others information on the book they are reading, but there is no pressure to do so. So how does it work in practice?

A couple of weeks ago, my wife and I decided to kick the tires on our own Silent Book Club in town. We were informed it would gather at a local bistro at 2 pm and that is where we showed up, ready to go. It wasn’t hard to find the gathering because of the noise. It was the most unsilent silent book club imaginable. Animated people were busy introducing themselves, ordering coffee (or stronger tipples), and generally enjoying themselves. There were about 30 people in all, although only 4 of them were men. Good odds. The coordinator came around and took note of everyone’s book and then set the timer. Silence fell, only to be broken by the occasional slurp of coffee and the rustle of the turned page. Of all those present, I only noticed one person using an e-reader, which I found a bit surprising given the growing popularity of digital books, as I discussed in a recent blog post. A few had what were obviously library books, outed by their bar codes on the covers, but most people seemed to have turned up with a purchased paperback edition of their current favourite. I was astounded at how quickly the hour of quiet reading went by. Then it was time to break into small groups and discuss our respective books. This I found to be the most interesting part of the experience.

There were 4 women and one other man in my group. Both my male colleague and I were reading non-fiction, but all the women were into fiction. I was and am reading He Did Not Conquer, the recent book written by Canadian journalist Madeleine Drohan about Benjamin Franklin’s obsession with having Canada (then mostly the settled area around Montreal and Quebec City, populated primarily by French-speaking merchants, habitants and clergy) join what became the United States. While everyone knows that Franklin was one of the Founding Fathers of the United States, the book traces his long obsession with “Canada” because of the presence of a large, predominantly ethnic French population professing, in the parlance of the day, “Popish” beliefs, and the threat he believed they posed to the English-speaking colonies and later the US. Even before the Declaration of Independence in 1776 a ragtag American army had captured Montreal and attacked Quebec City (on December 31, 1775), only to be driven off. Franklin spent some time in Montreal in April and May, 1776, trying unsuccessfully to convince the locals to join the revolutionary cause. That was my book, certainly relevant today given the current 51st state rhetoric from Donald Trump. The other non-fiction work was For the Sun After Long Nights: The Story of Iran’s Women-Led Uprising, by Fatemeh Jamalpour and Nilo Tabrizy, also extremely topical given what is happening in Iran today.

The books being read by my female companions were equally eclectic. They included Yellowface by Asian-American writer Rebecca F. Kuang, a complicated story of plagiarism and self-justification apparently and a Canadian novel by Elizabeth Hay, set in Yellowknife, NWT, titled Late Nights on Air. Another was a Freida McFadden mystery (I forget which one, but it inspired me to go and see the movie The Housemaid based on one of her books). The final book was The Island of Sea Women, by Lisa See, which is a story of female friendship set in Korea’s Jeju Island. It features two haenyeo, females who dive (traditionally without assistance of breathing apparatus) for abalone, woven with a story of Japanese occupation and collaboration. This is a pretty impressive Asian background setting for an American writer although Lisa See has written a number of books with oriental themes. So there you have it, a microcosm of what people are reading just from my small discussion group. It was an interesting range of interests and topics and I learned quite a bit. My wife and I think we’ll be back again next month. Group reading, even silently, is fun and can be very social. Why not give it a try?

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