The AI Copyright Crisis Contains an Opportunity for which Publishers have Waited Centuries

A promotional graphic for Citations LLC, featuring the tagline 'Rights-aware AI access infrastructure' and three services: REVEAL™ (Semantic extraction engine), CITATIONS GATEWAY™ (Access & transaction engine), and CITATIONS CORE™ (Settlement & analytics engine). The design has a dark blue background with gold text.

We read daily about new lawsuits brought by rightsholders against AI developers, strategy papers floated by governments seeking to solve the riddle of reconciling copyright and AI, and declarations issued by authors proclaiming the end of human creativity. The creative community seems to have coalesced around the principles of transparency, permission and remuneration but the tools to effect those key elements remain elusive. The AI community would generally prefer not to pay or ask permission but is gradually accepting the need to license content. Yet there is still a technical gap in terms of knowing what content has been used, when and how. Without that knowledge, the principles of permission and remuneration are left treading water. The blog post below by Jim Bryant, Co-Founder and CEO, Citations LLC, offers potential solutions to this challenge, and I offer it to you as a possible pathway forward. I have no financial interest in Citations LLC, nor did they pay me to post this information. It is presented as a contribution to the search for a world where copyright and AI can co-exist for mutual benefit. (Hugh Stephens)

A problem or an opportunity?

Imagine a student in Montreal asks an AI assistant a question about traditional Chinese medicine, in French. The AI answers fluently — in French — drawing on the Encyclopedia of China, a monumental work with over 125 million characters that has never been translated into any language.  Now imagine the same student switches to English and asks a follow-up question. The AI answers again, equally fluently, in English. The student is satisfied. The publisher gets nothing. No notification, no attribution, no compensation. They don’t even know it happened.

This scenario is entirely plausible with current AI technology. And while it represents a genuine copyright problem — real-time AI translation of a protected work, without license, in a jurisdiction whose law was not written to contemplate it — it also represents something else: an extraordinary, unrealized opportunity.

For the first time in the history of publishing, the technology exists to know, at the moment it happens, that someone in Montreal, Mumbai, or Mexico City is asking a question that your content just answered. The question is whether publishers will help build the systems to capture that signal — or whether they will leave it entirely to the AI companies, who are already building without them.

Publishers have always been flying blind.

Think about what publishers have never been able to know — and what AI companies, for the first time, can. An AI system that has trained on your works without permission is, in effect, drawing on your content every time it answers a relevant question. Which of your titles is it using right now, and where? Which readers are getting answers derived from your content without ever being directed back to the original? Which backlist titles are generating AI responses in markets where you have no distribution and no visibility? Which gaps in your catalogue are readers repeatedly trying to fill — and how would you know, if the only signal is buried inside a system you have no access to? The argument for independent monitoring infrastructure is not only about compensation. It is about visibility. Publishers are currently funding AI responses with their content and receiving nothing in return — not money, not data, not even the knowledge that it is happening.

For centuries, publishers sent their works into the world and largely lost sight of them. Sales data arrived months or years later, filtered through agents, booksellers, distributors, and described what sold — not what readers wanted but couldn’t find. The feedback loop from reader demand to editorial decision has always been slow, indirect, and incomplete.

A properly instrumented knowledge access infrastructure changes all of that. Real-time query data across AI systems is, in effect, a continuous signal of what readers want — more granular, more current, and more honest than any market research tool the industry has ever had. That data is a byproduct of the same system that creates the copyright exposure publishers are currently fighting in court.

The moment of demand is the moment to act.

Here is the specific opportunity that AI creates, and that no prior technology has made possible: when an AI system surfaces content in response to a query, it creates a demonstrated moment of demand. A reader who just received an AI-generated answer drawn from a specific book is, at that moment, maximally interested in that book. That is the moment to offer them the chance to borrow it from a library, purchase it from a retailer, or access an authorized digital edition.

Rather than substituting for the book, the AI interaction becomes the discovery mechanism that leads to it. Publishers have spent decades trying to close the distance between the moment a reader becomes interested in a title and the moment they act on that interest. AI closes that distance to zero — but only if the infrastructure exists to capture it. Without that infrastructure, the moment passes, the reader moves on, and the publisher never knew the opportunity existed.

Libraries are being bypassed — and publishers are losing their best customers. Libraries are among the largest single customers some publishers have. A major academic or reference publisher may depend on library subscriptions for a substantial share of its revenue. AI is disrupting that relationship in ways that have received too little attention. When a patron who would previously have borrowed a book — or prompted their library to acquire it — instead receives an AI-generated answer derived from that same book, the library never makes the purchase, the publisher never sees the revenue, and neither institution knows the transaction occurred. The AI company captures the value; the library loses a use case; the publisher loses a sale. The institution most structurally committed to legal, compensated access to knowledge is being systematically bypassed by systems that obtained that knowledge without payment.

The same logic applies to real-time trend identification. Aggregate query patterns across an AI knowledge system are a leading indicator of what readers want — not what they bought last quarter, but what they are looking for right now. Which subjects are rising? Which titles are being asked about in markets where they have no distribution? Which authors are generating interest that isn’t yet reflected in sales? This intelligence, continuously available, would transform publishing from a reactive industry into a responsive one.

The translation question is the hardest — and the most important.

The Encyclopedia of China example is worth dwelling on, because it illustrates both the opportunity and the complexity in their sharpest form. That encyclopedia has never been translated — into French, English, or any other language. The economics of translation have made it prohibitive: 125 million characters, uncertain commercial return, no obvious path to a global audience. As a result, it has been accessible only to readers of Chinese. That constraint has nothing to do with the quality or the importance of the content.

AI removes that constraint entirely. In this hypothetical, a reader anywhere in the world could ask the encyclopedia a question in their own language and receive an answer. This is, genuinely, one of the most remarkable things that AI makes possible: the dissolution of language as a barrier to knowledge, overnight, at no marginal cost.

But it raises a set of copyright questions that existing law is not equipped to answer. A real-time AI translation is, in the most precise legal sense, the creation of a derivative work — at the point of query, in a foreign jurisdiction, without a license, without attribution, and without compensation to the original publisher. It is not covered by any existing text-and-data-mining exception, because it is not mining — it is real-time derivation. It is not covered by fair use or fair dealing analysis that was designed for static reproduction, not dynamic on-the-fly translation.

And yet the underlying interest of the publisher is not to prevent this from happening — it is to be compensated when it does, and to have some say in how their content is represented. A framework that would allow the publisher of the Encyclopedia of China to authorize AI-mediated translation under defined conditions, receive a per-query payment, and have the source attributed, would serve everyone’s interests. The absence of such a framework means the publisher gets nothing, the AI company gets everything, and the reader gets an answer of uncertain provenance.

The ten copyright challenges — briefly.

It is worth cataloguing the specific challenges, because they are often discussed in isolation when they actually share a common cause. The publishing industry currently faces at least ten major copyright issues arising from AI:

AI training — whether training on copyrighted works requires permission and compensation, currently being litigated in multiple jurisdictions.

Transparency — AI developers do not disclose what content their models were trained on, making it impossible for rights holders to assess exposure or negotiate terms.

Reproduction — models can and do reproduce passages that closely approximate protected expression, as documented in peer-reviewed computer science research.

Market impact — AI summaries and Q&A responses can substitute for the original work, displacing revenues that would otherwise flow to the publisher.

Derivative works — the degree of transformation required to render AI output non-infringing remains genuinely unsettled, particularly for outputs that blend multiple protected sources.

Attribution — AI outputs routinely fail to identify the works they draw on, undermining both the moral rights of authors and the practical basis for any royalty mechanism.

Compensation — no industry standard governs AI licensing fees; per-query, per-token, and blanket models are all being proposed, with no settled framework.

Retrieval — retrieval-augmented generation systems access copyrighted content at inference time, raising rights questions distinct from and additional to those arising from training.

International law — training data crosses borders; copyright law does not; EU, US, UK, Japanese, and Canadian frameworks diverge in ways that create genuine compliance complexity.

Auditability — without verifiable records of what was accessed, when, and in what context, no licensing agreement is enforceable and no royalty calculation is credible.

These are not ten separate legal problems. They are ten symptoms of one missing piece of infrastructure: a neutral, independent system for monitoring how AI systems access and use copyrighted content, reporting on that usage in real time, and enabling settlement between AI platforms and rights holders on the basis of verified data rather than estimates.

Why the infrastructure must be independent.

This point deserves emphasis, because there is a tempting shortcut that would not actually work. Publishers cannot rely on AI developers to build and operate the systems that monitor AI’s use of their content. The conflict of interest is structural: the party whose compliance is being measured cannot be the party doing the measuring.

What is required is a neutral layer — operated independently of both AI developers and publishers — that records access events, aggregates usage data, reports to rights holders, and enables automated settlement. Think of it as the knowledge economy’s equivalent of a financial clearinghouse: not owned by any single participant, trusted by all of them, and essential to the functioning of the market.

This is not a novel concept — it is exactly the model that makes collective rights management organizations function in the music industry and payment card networks function in financial services. Every industry that has needed to account for consumption at scale and distribute revenues to multiple rights holders has eventually built a neutral clearinghouse.

The window is open — but not indefinitely.

Canada’s AI strategy, recently released, makes almost no mention of copyright or the rights of content creators — a significant omission that Hugh has written about on this blog. The European Parliament’s work on AI and copyright has moved further, but still focuses primarily on training rather than on the access and retrieval layer where the most tractable opportunities lie.

The practices governing how AI systems access knowledge are being established right now, largely by default. The companies building AI systems are not waiting for a legal or regulatory framework; they are building, and the norms are hardening around what they build. Publishers who are not at the table when that infrastructure is designed will find themselves subject to whatever framework others have built for them.

Copyright law exists to balance access and incentive — to ensure that knowledge can circulate while the conditions that make knowledge production sustainable are preserved. AI does not change that objective. It changes the technical conditions under which the balance has to be achieved. The good news is that those technical conditions, for the first time, make real-time monitoring, attribution, and settlement not just possible but straightforward.

The question is not whether AI will access books. It will. The question is whether publishers will be watching when it does — and whether they will have built the systems to act on what they see.

That system already exists. It logs the moment, attributes the source, and settles the account — not as a future framework, but as infrastructure operating today. It’s called Citations, and it’s already watching.

* * *

About the author

Jim Bryant is the co-founder and CEO of Citations LLC, which has built the independent infrastructure for rights-aware AI access to authoritative content — enabling real-time monitoring, attribution, and settlement between AI platforms and publishers. See how it works at: citationslogic.ai.  Jim previously founded ProCD, one of the first CD-ROM reference publishing companies; managed Information Please, which became one of the most visited reference destinations of the early internet; and founded Trajectory, which developed and deployed natural language processing algorithms to read and extract structured metadata from over one million books in English and Chinese.

(c) Citations LLC, 2026

The Artists’ Resale Right in Canada: Many Promises but No Delivery (Let’s Get on With It)

A speaker in a suit addresses an audience in an art gallery, while attendees hold up numbered paddles during a bidding event.

Image: Shutterstock

The recent sale, or re-sale to be more exact, for $5.7 million of a 1948 painting by the late BC artist E.J. Hughes (“Coastal Boats Near Sidney, BC”), who spent much of his life in relative poverty, reminded me that the oft-promised but yet-to-be-delivered Artist’s Resale Right (ARR) in Canada is still in limbo. Canadian artists are still waiting for its implementation. Introduction of an ARR was first discussed more than a decade ago when in 2013 Independent MP Pierre Nantel introduced a motion to this effect. Later a private member’s bill was introduced by Liberal MP Scott Simms, but it did not get to Second Reading. In 2019, a Parliamentary Committee (Shifting Paradigms) recommended that the government establish an ARR.  Introduction of an ARR was part of the Liberal Party election platform in 2021 and after its re-election, the mandate letter issued to the then Minister of Innovation, Science and Industry, François-Philippe Champagne included instructions to “Work with the Minister of Canadian Heritage to amend the Copyright Act to further protect artists, creators and copyright holders, including to allow resale rights for artists.” In 2022, the Globe and Mail reported that the Industry and Heritage ministers at the time were working on reforms to the Copyright Act to include an Artists’ Resale Right. There was also speculation it would be included in a Canada-UK Trade Agreement, but that agreement is still under negotiation some four years later. More recently, reference to an ARR was included in both the 2024 Economic Statement and the 2025 Federal Budget. In the case of the budget, the precise wording was:

“Artists, particularly visual artists, are great contributors to Canada’s cultural scene and among the lowest income earners in Canada despite their significant cultural contributions. An Artist’s Resale Right provides the creators of original visual artwork with a royalty whenever their work is resold through an eligible sale, providing an additional income stream. In Budget 2025, the government announces its intent to amend the Copyright Act to create an Artist’s Resale Right in Canada, ensuring Canadian visual artists benefit from future sales of their work.”

That budget has now been passed but there was no mention of amendments to the Copyright Act or the introduction of an ARR in Canada in the omnibus Budget Implementation Bill. So close yet so far. You could be forgiven for asking, “Just what is going on?”

Let’s look at what an ARR is—and is not. It is similar to a royalty stream enjoyed by writers but adapted because of the nature of the work. While books are widely distributed and thus an author can earn royalties each time a book is initially sold, a visual artist gets to sell an original work but once. The principle of the ARR is that where sales of artistic works (works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs) take place beyond the initial sale, a small proportion of the re-sale price is remitted to the original artist or their estate, with post-mortem payments limited to a specified number of years. Often there is a sliding scale for payments, with the percentage going to the artist decreasing as value increases. Sometimes there is a ceiling beyond which a resale royalty is not levied. There can also be a ceiling on the amount paid. The cost is normally paid by the seller, or sometimes the purchaser, but not by the dealer. It is not a tax on art nor is it funded by the taxpayer. Works not sold through an art professional, such as a private sale or sale to a museum, are exempt from the ARR. One assumes a Canadian ARR would follow similar principles.

I started writing about the ARR back in 2021. At that time, as today, advocacy was led by CARFAC (Canadian Artists Representation), representing Canadian artists, and its sister Quebec-based group, RAAV (Le regroupement des artistes en arts visuels du Québec). They pointed out that Canada is one of the few countries not to have an ARR provision in law. They also pointed out that the establishment of an ARR would have an outsized impact on artists who achieved prominence only later in their careers and who often sold early works for a pittance. This is especially true of First Nations and Inuit artists. Finally, they highlighted that if Canada establishes an ARR—which would apply to foreign works resold in Canada as well as Canadian works—then Canadian artists would be eligible for reciprocal treatment in countries where an ARR has been established, such as the 27 member states of the EU, the United Kingdom, Australia, New Zealand, to name a few. The law would be designed to avoid providing ARR payments to artists from countries that do not themselves recognize a resale right. This relates primarily to the United States, which does not have an ARR at the federal level.

As I noted, these lobbying efforts seem to have fallen on fertile ground given all the declarations of intent, despite a counter-campaign by the art dealer community. Most dealers would naturally oppose any provision that could make sales of art more expensive or complicated, despite the fact that the cost is borne by the seller or purchaser, although I would note that some dealers think establishing an ARR is the right thing to do. Yet despite repeated promises from government, there is still no action. Despite amending more than 30 statutes, ranging from the obvious ones like the Income Tax Act to legislation such as the Judges Act, the Human Pathogens and Toxins Act and the Aeronautics Act, and repeal of the Digital Sales Tax, to mention but a few, the omnibus Budget Implementation Act (Bill C-15), which received Royal Assent on March 26 of this year, did not touch the Copyright Act. But as far as I am aware, there is no indication the government intends to renege on its commitment. So, why hasn’t it followed through? Is it inertia? Legislative overload? Distraction?

It’s not clear why this is still unfinished business but it’s time the government delivered on its promises. Surely there is no need for further consultation. This provision has been consulted to death. The ARR has been a proven instrument to protect and promote artist welfare in many countries. At a time when Canada needs to strengthen its identity and culture, the ARR is an established way to support the visual arts at no cost to the taxpayer. The tantalizing but frustrating on-again, off-again nature of the ARR needs to be settled once and for all. Canada’s artists have already been waiting too long for some relief.

Prime Minister Carney, Minister Miller (Identity and Culture Minister). It’s time to get on with it.

© Hugh Stephens, 2026. All Rights Reserved

Canada’s National AI Strategy “AI for All”: Does Copyright Exist in the AI World?

A futuristic robotic figure with glowing blue accents, portrayed in a tech-inspired environment. A 'no copyright' symbol is visible in the corner.

Image: Shutterstock.com (adapted, clumsily)

If it does, you would never know it from reading Canada’s new AI strategy just released by the Minister of Artificial Intelligence and Digital Innovation, Evan Solomon. It is a magistral document, addressing key elements of AI under six pillars: (with my shorthand summary in brackets)

  • Protecting Canadians and safeguarding democracy (addressing trust, safety and privacy concerns)
  • Empowering Canadians (promoting AI literacy and economic opportunity)
  • Powering AI adoption for shared prosperity (accelerating adoption, especially for SMEs)
  • Building a sovereign AI foundation (building domestic compute, cloud and connectivity infrastructure)
  • Scaling Canadian champions (more government funding for domestic AI development)
  • Building trusted economic and governance partnerships and global alliances (leading the creation of a multinational middle power alliance to curb the power of hegemons and hyperscalers)

The latter objective will no doubt go down really well with the Trump Administration!

Those six headings cover just about all aspects of AI, from its creation to its use to its impact on the economy, on society and on individuals. But in all 50 pages of the document, as far as I can ascertain, you won’t find the word “copyright”, although “protecting intellectual property” is certainly featured. The intellectual property rights that are mentioned have nothing to do with the rights of those whose content was used without authorization to create AI but rather relate to protecting the intellectual output of AI developers in Canada. John Degen, CEO of the The Writers’ Union of Canada (TWUC) was the first to call this out. Given the make-up of the task force that produced the report, this is not surprising. While it was made up of the great and the good from the AI world, with academics, financiers, CEOs, cybersecurity experts, innovators, educators and so on as part of the roster, there was not a single representative from the cultural community.

There are many elements of AI this document tries to address, all of them important to a country like Canada, although there are limits to what can be done by a middle power given that the lead on development has been seized by a handful of large companies, mostly in the US. The US government itself is caught in the dilemma of wanting the US to lead AI development yet not becoming overwhelmed by it to the point that a few major corporations are calling all the shots.

As for content issues, including what must surely include some copyrighted content, they are addressed only indirectly in the Canadian strategy. The three principal issues relating to content are; (1) privacy and access to data; (2) Canadian identity and culture; and (3) AI misuse, such as creation of deepfakes and misinformation.

On privacy and data, the document notes that AI is only as powerful as the data it can access (how true!). It reminds us that governments in Canada hold vast amounts of data that should be treated as a strategic national asset and mobilized to fuel innovation and productivity (i.e. provided for AI research). Thankfully, there is a tip of the hat to the need for “strong privacy protections” but there is no mention of the unauthorized scraping of databases and protected content by AI developers, both domestic and international. Privacy is important but so is ownership of content, and the right to grant permission to use it. Unfortunately, this latter point is not mentioned.

Protecting and promoting Canadian identity and culture is also mentioned as an important goal. It is obvious that if AI developers are blocked or hindered from ingesting Canadian content, then there will be less of Canada reflected in AI outputs. That argument was put forward recently by Michael Geist in a blog post criticizing recommendations issued by the Parliamentary Standing Committee on Heritage that had called for protection of the property rights and interests of artists through the Copyright Act on the basis of authorization, remuneration and transparency. This would lead to “AI without Canada”, according to Prof. Geist. This could be true if AI developers did not need or want curated Canadian content, but they do. The solution, as I pointed out, is not to give away everything in the shop window by creating a broad AI training exception in Canadian copyright law–which would amount to legalized theft, but instead to facilitate licensing solutions by resisting the smash-and-grab. Applying the existing legislation will incentivize the AI industry to strike deals with rightsholders. In other words, they will pay a negotiated amount for the products on display. That’s the best way to get more Canadian content into AI.

On the identity issue, the government’s summary document has this to say:

“Canadian AI must support, reflect, and project Canadian culture, which includes our customs, our history, and our heritage. Canadian voices, languages, communities, and knowledge must also be represented in how AI systems are designed, built, and used. Given our diverse and multicultural society, our approach to AI must acknowledge and support this rich diversity, including strengthening the French language by capturing and projecting its idioms, expressions, and cultural contexts.”

The best way to do this is to ensure that quality content in both official languages is made available to AI developers. As I have stated above, the fairest and most efficacious way to do this is through content licensing. Broad copyright exceptions will not facilitate licensing discussions. In fact, they do just the opposite by encouraging avoidance of dealing with rightsholders.

Regarding misinformation and deepfakes, this is a huge concern, and not just in Canada. Various legislative solutions have been proposed such as the bipartisan NO FAKES Act, currently working its way through the US Congress (opposed, as usual, by the internet libertarian organization, the Electronic Frontier Foundation). Other countries, such as Denmark, are addressing the issue through amendments to copyright law, giving individuals the reproduction rights to their image and voice. The UK has an anti-deepfake law on the books, introduced earlier this year, but Canada is still struggling to get its Online Harms legislation, after a couple of false starts, finalized and across the line. Re-introduction of that legislation is expected imminently, and will likely include social media restrictions on children, a highly controversial issue.

Privacy in relation to access to data, cultural identity, and misinformation including deepfakes are all content issues that Canada’s AI strategy will need to address. And so is copyright, although not mentioned in the strategy. Putting the best possible gloss on things, perhaps it is just as well there was not some throwaway line in the strategy pointing to the need to provide wider access to copyrighted content to ensure that Canada remains competitive on AI. That is the argument often employed by those who want freer access to “OPC” (Other Peoples’ Content). The argument is that “Everyone else is doing it (i.e. giving it away–which is factually untrue), so we have to as well in order to stay competitive”. Maybe silence was better than saying the wrong thing in this document.

In the absence of any reference to copyright issues, the last word must rest with Heritage and Identity Minister Marc Miller who spoke recently to the press after the National Summit on Artificial Intelligence and Culture in Banff, AB. The Minister is quoted as saying that Canadian copyright law is already clear that artists’ work needs to be respected, and that…”the current copyright law does and should protect those that have created material, and people need to be compensated properly.”

While that is encouraging, it would have been nice to have had this reaffirmed in the AI strategy document.

© Hugh Stephens, 2026. All Rights Reserved.

The CRTC Streaming Announcement, and CUSMA: An Update (It’s Changing by the Day)

Flags of Canada, the United States, and Mexico arranged together.

Image: Shutterstock

Scarcely was the ink dry on the blog I posted on Monday, June 1, when things began to happen. The next day Canada officially informed the US and Mexico that it wished to renew CUSMA, and Dominic Leblanc, Minister responsible for Canada-US Trade (among several other responsibilities) went to Washington to meet with US Trade Representative Jamieson Greer. There he was given the laundry list of US grievances which surely included the Online Streaming Act (OSA) and in particular the CRTC decision to impose a 15% levy on the Canadian revenues of large foreign (read US) streamers to fund domestic Canadian production (only some of which the streamers could use at their discretion). The day after that, June 3, the Carney government announced that it would be providing “direction” to the CRTC to review its decision, on the basis that additional costs imposed on the streamers would likely be passed on to Canadian consumers.

To sweeten the pot, the government announced the creation of a $600 million annual fund to “provide stability and immediate support to Canada’s audio and audiovisual sectors”. This is to offset the funding the streamers may no longer be contributing, including the initial five percent contribution still held up in the courts owing to a legal appeal. Six hundred million dollars is a good chunk of change; it’s about the same amount the streamers would have contributed based on CRTC calculations estimating that the original five percent levy (currently suspended pending a decision from the Federal Court) would have generated $200 million annually. This would suggest either that the streamers may not be expected to make financial contributions or that their contributions will be additional to the base amount. Even though the government has thrown a lot of money at the problem, this has not satisfied the cultural sector however. The Coalition for the Diversity of Cultural Expression (CDCE), a major cultural industries umbrella group, has just issued a press release calling Ottawa’s request for the CRTC to reverse course “a major setback for cultural sovereignty”. The CDCE doesn’t mind the offer of $600 million. It’s just that such funding is at the whim of the government of the day whereas embedded funding through regulation of online streamers would be part of the broadcasting regulatory framework and thus more predictable and reliable.

As for the argument that a levy on the streamers would be passed on to consumers, Howard Law in his blog MediaPolicy.ca points out that “Netflix upped the price on its standard plan from $14 monthly to $15 in 2020. Then to $16.50 in 2022. Then to $19 in 2025. That was twice the rate of inflation.” But of course, no-one could blame the government for these increases. That was just greedy old Netflix. The streamers will price their product at whatever level is optimal from their perspective, just like any other business. If they price themselves too high, people will find alternatives, either a competing service or (horror of horrors), a pirated feed. The industry is well aware of the limits of consumer tolerance, particularly in this age of stressed household finances. Nonetheless, the Carney government’s “concern” for consumers is good politics.

Why didn’t the government just tell the CRTC what rate to set? By statute the government does not have the authority to reverse or overrule CRTC decisions in matters other than the issuance of broadcasting licences (the CRTC being an independent quasi-judicial body), but the government does have the authority to issue policy directives as to how legislation is to be implemented. What that guidance will be, Heritage Minister Marc Miller (the point person on this file), was not willing to say except that the amount of the streamer’s contributions would be reduced. By how much, we do not know. However, he hinted they would still be required to contribute. Once again, the CRTC will need to consult stakeholders and hold hearings. There is lots of wiggle room (or room for further negotiations with the streamers).

There was no mention of the CUSMA negotiations being a factor in the government’s decision but if you don’t think CUSMA was in play, you have been living on another planet. Nonetheless, the action the government has taken suggests it has learned a lesson from its previous policy reversal on the Digital Services Tax, when it scrapped the legislation on the very eve of implementation to appease the Trump Administration and get CUSMA negotiations back on track. That concession achieved absolutely nothing. In the case of the Online Streaming Act (OSA), it will continue in force as legislation for which the CRTC is required to develop implementing regulations. The government has signalled flexibility but has not rescinded the authority of the CRTC to regulate streaming services in Canada, nor has it definitively exempted the streamers from making a financial contribution or meeting discoverability requirements. It thus retains the OSA as a bargaining tool, something it could have done with the DST if it had only suspended the imminent application of the tax instead of withdrawing it completely. Once burnt, twice shy. Its action on the CRTC decision is exactly what it should be doing, signalling flexibility but retaining the essentials of the policy as a bargaining chip.

The other significant development on the trade negotiations front, announced coincidentally on the day that Leblanc and Greer were meeting in Washington, was the announcement by the US Trade Representative’s Office that they will be imposing tariffs ranging from 10 to 12.5 percent on over 60 sixty countries who allegedly either don’t block goods produced with forced labour or do so inadequately. Canada is one of half a dozen countries in the latter category, along with the EU. Everyone else completely fails on this score, according to USTR. Not a single country is exempted although “only” 60 of the US’s major trading partners are targeted. There will be hearings to examine the USTR announcement but the results are a foregone conclusion.

I mentioned in my earlier blog post this week that the Trump Administration will do whatever it takes to justify its unilateral imposition of tariffs, whether or not this is in violation of bilateral and multilateral treaties. Once its “fentanyl tariffs” imposed under the International Emergency Economic Powers Act (IEEPA), were overturned by the US Supreme Court, the Administration resorted to whatever other excuse it could find, including using both national security (Section 232 of the Trade Act of 1962) and balance of payments (Section 122 of the US Trade Act of 1974) as pretexts. These are “temporary” measures authorized by Congress to address specific emergencies. The Trump Administration has made a mockery of these remedies, employing them on the flimsiest of pretexts. But even these measures are time limited, (although for some the time can be measured in years). However, the Section 122 tariffs imposed in lieu of the IEEPA tariffs after they were overturned will expire in July so Trump and USTR had to come up with another justification in US domestic law to maintain their import tariffs. The answer was trade in products produced with forced labour. Suddenly, most of the world’s trading economies are accused of allowing goods produced with forced labour to undermine international markets, so sixty countries must be punished by the US through the imposition of tariffs on their exports to the US. This ludicrous misuse of Section 301 of the US Trade Act is clearly for purposes other than dealing with forced labour.  

While the US does have a robust regime to block the import of products produced with forced labour, it is far from perfect itself. According to the Canadian Centre for Policy Alternatives, a labour oriented self-declared “progressive” publication, last year the Trump administration cancelled around $577 million from the Bureau of International Labor Affairs (ILAB) in grants allocated to various programs meant to promote labour rights abroad. Also, products produced for private companies by prison labour in the US have been a concern. Last year, the University of Toronto produced a report “Uncovering US Prison Labour in Canadian Supply Chains” that concluded “the Canadian supply chain has many likely linkages to prison-made goods from the US, particularly in the automotive and food sectors.”

Canada’s hands aren’t completely clean either. Prime Minister Carney has just announced his government will introduce new legislation this month to strengthen the current Canadian ban on imports made with forced or child labour. However, while forced labour is a real issue, the USTR action is not only hypocritical, it also demonstrates the lengths to which the Trump Administration will go to use any pretext or legal loophole it can find to impose tariffs. Even if Canada had the tightest regime in the world to prevent the import of products produced with forced labour, this would not stop the US from using this, or some other pretext, to fill the tariff gap created by the collapse of the fentanyl tariffs. When the fentanyl tariffs were first announced, Canada responded by creating a “fentanyl czar” and equipping the RCMP with new Blackhawk helicopters for improved surveillance, among other measures to beef up border security. While useful, this did not exempt Canada from US tariff punishment. It wasn’t about fentanyl; it was about imposing tariffs on a trading partner that had naively expected CUSMA rules to be followed.

This has been one of the problems with CUSMA.  While—remarkably considering what has been going on in Washington– much of the trade conducted between Canada, Mexico and the US under the CUSMA/USMCA/TMEC agreement continues tariff-free (for now), the sectoral exceptions introduced by the US based on contrived grounds (e.g. the imports of fentanyl from Canada) raise the question of whether the US really intends to honour what it has agreed to, or will agree to in future. That is also a point I made in Monday’s blog when examining the issue of the Cultural Exception to CUSMA (Article 32.6) and whether the US would try to use it to impose retaliatory tariffs on Canada. Using Article 32.6 against Canada would likely fail “legally” (i.e., the OSA is not a violation of the terms of CUSMA, and therefore Canadian action to implement the legislation would not need to be justified by Article 32.6), but then the US could find another excuse if it really wanted to take action. Fentanyl, national security, forced labour, smoke from Canada. Take your pick.

Assuming the US agrees to extend CUSMA/USMCA through renegotiation, a lot will be up for grabs. For example, the US apparently wants to further increase the percentage of US and North American content in automobiles traded under the Agreement. While a good idea in principle, will it make US or North American vehicles more competitive? Maybe Article32.6, the Cultural Exception that applies only to Canada, will disappear. While in theory cultural industries in Canada can be exempted from the terms of the Agreement, the penalty for doing so is so draconian that the Exception is really more of a political fig-leaf than a policy reality, although it may salve Canadian pride. Canada for its part will want some assurances that the sectoral “national security” tariffs on steel, aluminum and lumber will be lifted and not reimposed on a whim. Whatever eventually happens, some sense of economic certainty and security will be the goal.

Right now, things are changing by the day. Stay tuned for the next update. It could be tomorrow!

© Hugh Stephens, 2026. All Rights Reserved.

The Recent CRTC Decision on US Streamers and CUSMA

Will the CRTC Decision Requiring US Streamers to Make Additional Financial Contributions to Canadian Production Lead to Retaliatory US Tariffs Impacting Other Sectors because of CUSMA’s Cultural Exception Clause?

Should Canada Rescind the CRTC Decision Now to Facilitate CUSMA Negotiations?

Logo of the CRTC (Canadian Radio-television and Telecommunications Commission) featuring stylized lettering and a circular design.

Summary

Since this is a long post on a complex subject, here is the very short version of my answers to these two questions, the Executive Summary if you will. On the first question, I posit that the CRTC decision is not a violation of the terms of CUSMA, and therefore Canada does not need to justify the CRTC measures by using the shield of the Cultural Exception, which if applied could legitimize US tariff retaliation. That is not to say that I agree with the CRTC decision in all its aspects, nor that the Online Streaming Act might not become a bargaining chip in the renegotiation of the Agreement. For the US to justify tariff retaliation on the basis that Canada was using the Cultural Exception as a shield would require a determination by a trade panel. That is most unlikely to happen. Given the general US disrespect for the CUSMA Agreement since the advent of Trump 2.0 and the way in which the US has ridden roughshod over the protections that the Agreement was supposed to provide, the niceties of its text seem largely irrelevant. US streamer’s hopes of securing protection under the CUSMA have been undermined by aberrant US trade policy. As for whether the Carney government should walk back provisions of the Online Streaming Act to facilitate CUSMA renegotiation, the Digital Services Tax climbdown illustrates well the folly of unilateral concessions. The US can wield a big stick, but Canada is not without cards to play. When you are playing with a master bluffer, don’t fold your hand early. That’s the short version. For more detail, read on.

The CRTC Announcement

Since the CRTC announced on May 21 that, among other requirements, it will increase the mandatory contribution to be made to Canadian productions by large foreign streamers (those generating in excess of $100 million annually in Canada) from 5 percent of their Canadian revenues to 15 percent, commentary—largely in the form of criticism– has come from all sides. The CRTC decision itself is not the easiest to understand even with its embedded graphic. The Motion Picture Association-Canada did not mince words;

“The Motion Picture Association strongly condemns the CRTC’s decision to impose unprecedented, unnecessary, and discriminatory investment obligations on American streaming services operating in Canada. This burdensome framework unfairly targets global streamers with requirements that directly violate Canada’s obligations under the United States-Mexico-Canada Agreement (USMCA).”

MPA-Canada and some individual streaming services have already challenged the initial five percent “downpayment” levy on the basis that the requirement for streamers to pay for local news (one of the allocations of the initial levy, not repeated in the new CRTC regulations) is a discriminatory measure exceeding CRTC authority because none of the streamers even produce news coverage. The plaintiffs also argue that the levy constitutes a tax, which is beyond the competence of the CRTC. Indeed, the taxation angle was repeated by Opposition Leader Pierre Polievre who accused the CRTC of imposing a tax that would ultimately be paid by Canadian consumers. He demanded that the Carney government overrule the CRTC, something the government says it does not have the authority to do. If pushed, however, it could of course amend or withdraw the legislation, the Online Streaming Act, that is behind the CRTC actions.

Others were also quick to criticize, including University of Ottawa professor Michael Geist who published the day after the CRTC announcement, pointing out that the Online Streaming Act is already in the crosshairs of the US in the lead up to negotiations to renew the CUSMA/USMCA. Indeed, US Ambassador Pete Hoekstra, who seems to be unable to fathom why Canadians might be upset at a US Administration that has routinely broken the rules it agreed to under Trump 1.0 with the renewal of NAFTA (not to mention the 51st state nonsense), immediately called the CRTC decision “making a bad situation worse”. Geist followed up with another post titled “From Levy to Liability: Why Canada Risks Facing Hundreds of Millions in Retaliatory Tariffs Due to the CRTC’s Online Streaming Act Ruling”.

Copyright Ownership Issues

Now, I am not here to try to justify the CRTC’s Canadian program expenditure announcement, which is a complicated beast. While I believe a legitimate argument can be made that participants in the Canadian broadcast space should be expected to support Canadian content and Canadian production to a certain degree, I have a problem with the requirement that prevents the funders from owning and exploiting, as they see fit, the product they have invested in. I know this view is not shared by many in the Canadian content industry. Part of the CRTC decision involves an obligation to spend 30 percent of their contribution on what is described as “enhanced partnerships”. This is CRTC-speak for production partnerships where Canadians hold the majority of the copyright in the programming.

This would seem to reverse the flexibility in defining Canadian Content (CanCon) that was introduced by the CRTC late last year. As I explained in a blog post last November, the revised CanCon definition outlined by the CRTC for broadcasting and streaming purposes allowed for up to 80% of the copyright in a production to be held by a foreign enterprise, subject to some other CanCon requirements such as the director and screenwriter both being Canadian. This was designed to encourage co-productions, and was a slight relaxation of the hardline rules that required foreign streamers to contribute to Canadian productions but then denied them the right to own and exploit the copyright (including distribution rights) in those productions. Now whatever flexibility that was introduced has been rolled back; at least one streamer production contribution dollar in three must be invested in a production where the rights are held by someone other than the funder, with that person having to be a Canadian. This is despite the fact that the production might have qualified as Canadian (story, director, location, music etc) in every other way. The purpose of the levy is clearly not to promote Canadian content but Canadian production.

Do the CRTC Measures Violate CUSMA Obligations?

While I, like Michael Geist and others, have concerns that the CRTC decision has flaws, and may be indeed become an additional irritant to be dealt with during the forthcoming CUSMA negotiations, my main quibble is with the argument that Canada will face millions in retaliatory tariffs under the CUSMA framework because of the CRTC mandated contributions. Prof. Geist and others are recycling the argument put forward by a US industry group, the Computer & Communications Industry Association (CCIA), claiming that the CRTC decision violates the terms of CUSMA, specifically, Article 14.10 that refers to investment performance requirements;

“No Party shall, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party… impose or enforce any requirement, or enforce any commitment or undertaking…to achieve a given level or percentage of domestic content”

CCIA argues, echoed by Michael Geist, that given this situation, Canada will therefore be required to defend its action by means of the Cultural Exception clause (Article 32.6). This is an “escape clause” that says;

This Agreement does not apply to a measure adopted or maintained by Canada with respect to a cultural industry.

Broadcasting meets the definition of a cultural industry. However, if the CCIA is right and Canada falls back on the Cultural Exception, this is itself a problem because in that case the US would be entitled to retaliate (take a measure of equivalent commercial effect) in any sector. In other words, the automotive, aluminum, steel, mushroom or maple syrup industries, or any other, could be lumbered with retaliatory US tariffs as a result of measures applied to US streamers that are discriminatory or otherwise non-compliant with CUSMA.

If the measures are non-compliant or discriminatory, that is. If they are not, Article 32.6, the Cultural Exception, does not apply and therefore there would be no grounds for the US to retaliate. (Not that the need to respect the terms of CUSMA would stop them, as I discuss below). In the past, I have argued that the Cultural Exception is not applicable. This is because Article 14.10 refers to investment (Chapter 14) whereas streaming services fall under a different chapter of CUSMA, cross-border trade in services (Chapter 15). National treatment (non-discrimination) applies to cross-border services, and the streamers are in fact treated more favourably than their equivalent Canadian streaming counterparts. You can read all about it here.

But what if I am wrong? My interpretation has not been tested in “trade court”, which in the case of CUSMA (Chapter 31) allows for a state-to-state dispute settlement process through establishment of arbitration panels. The US could call for such a panel but could also simply assert that Canadian actions were in contravention of the Agreement and that Article 32.6, the Cultural Exemption, applied. This would allow for the application of retaliatory tariffs. However, under the terms of the Agreement, Canada could challenge the US assertion, and so, in effect there could ultimately be a panel review to determine the outcome.

US Trade Actions to Date

That is how the Agreement is supposed to work, but that process is now effectively irrelevant given that the US has violated both its terms and spirit several times, basically arrogating to itself the right to do anything it pleases. The so-called “fentanyl” tariffs were the first such example, where the US imposed a 25 percent tariff on Canadian goods on the specious pretext that Canada was responsible for “the extraordinary threat posed by illegal aliens and drugs, including deadly fentanyl” which “constitutes a national emergency under the International Emergency Economic Powers Act (IEEPA)”, according to an announcement issued by the US Embassy in Canada.  Quite apart from the fact the US is responsible for enforcing its own border security, not Canada or Mexico, Canada was the source of less than 1 percent (between 0.1 and 0.2 percent in fact) of illegal fentanyl flowing to the US. More fentanyl probably flowed the other way. The IEEPA tariffs were subsequently struck down by US courts as being an unjustified usurpation of the taxing power of Congress.

Not daunted, the Trump Administration has turned to other legislation, such as Section 232 of the US Trade Act of 1974, to impose tariffs on Canadian steel, aluminum, cars, furniture such as kitchen cabinets, and lumber on the basis that such imports threaten US national security. In addition, Canadian goods that do not have a CUSMA certificate of origin are subject to tariffs under Section 122 of the US Trade Act that deals with balance of payments issues. Then there is the Canadian financed Gordie Howe Bridge that the Trump Administration seems to want to keep in limbo because the owner of the competing bridge is a large Trump donor. I could go on, but the point is, the terms of the USMCA/CUSMA seem to exercise very limited restraint on the Trump Administration. Therefore, why would the Administration care whether Canadian measures imposing a levy on US streamers to fund Canadian productions fall under the Cultural Exemption or not? They don’t. If they want to impose a tariff, they’ll find a pretext.

Should Canada Rescind the CRTC Ruling to Facilitate CUSMA Renewal?

From a trade negotiating perspective, for Canada to roll back the CRTC decision now would be a tactical mistake. Look what happened to the planned implementation of a Digital Services Tax. Long planned, with an implementation date well publicized a couple of years in advance, and with the revenue already booked, the Carney government got cold feet and at the last minute cancelled the tax. This was supposedly to get CUSMA negotiations restarted. As I described it at the time, it was a “humiliating climbdown” to mark Canada Day, 2025. Yes, negotiations resumed for a few weeks until the US pulled the plug once again to signal its displeasure with Ontario Premier Doug Ford’s TV ads during the Super Bowl that enlisted Ronald Reagan to fight tariffs. The DST climbdown achieved nothing. That lesson appears to have been learned. The Canadian Government has made it clear it is not prepared to pay an “entry fee” to begin CUSMA discussions, and will not make concessions simply to get to the table. So, from a trade policy perspective, why should it pull the Online Streaming Act, or intervene with the CRTC?

This is not to say the CRTC got this decision 100 percent right. It is also not to say that, hypothetically, elements of the Online Streaming Act might not be on the chopping block as part of an eventual CUSMA 2.0 deal. That is assuming the US can be trusted to implement what it agrees to. As the smaller partner, Canada has always relied on the US sense of justice, respect for the rule of law and a willingness to surrender some sovereignty for greater overall economic and political security as reasons to expect that the US will honour what it agrees to. Under the Trump Administration, that faith has been shaken. The US streaming industry has every right to invoke the supposed protection of CUSMA and to seek protection under the Agreement. The problem is that the current US Administration has so brutally abused the CUSMA framework as to make it scarcely credible. The streamers are being sideswiped by the aberrations of US trade policy.

But back to the topic at hand. Will the CRTC decision on streaming lead to the imposition of hundreds of millions of dollars in retaliation by the US? Probably not, although such an outcome is not impossible. If it happens, it won’t be because of the Cultural Exception clause in CUSMA, but because the US can wield a big stick and will do so if it suits the mood in the White House at any given time. Canada, however, has some cards to play, to use a Trumpian analogy, and those cards (energy security, critical minerals, lower-cost inputs to US industry such as aluminum, specialty steel, and car parts) are important to the US. The Carney government is playing a waiting game on CUSMA negotiations and renewal. The decision on US streamers is just one more element in this high-stakes poker game. When you’re playing with a master bluffer, you don’t fold your hand before the game is over.

© Hugh Stephens, 2026.

Can You Copyright a Totem Pole?

View of a modern building surrounded by trees on a rocky shoreline under a cloudy sky.

Photo: Author

Can the individual or individuals who design and carve a totem pole claim copyright protection for their work? This question crossed my mind during my recent visit to Haida Gwaii, those mysterious fog-shrouded islands in the North Pacific about 150 kilometers west of the British Columbia mainland, just south of Alaska. The home of the Haida, skilled mariners and master artists and carvers. I have always wanted to visit Haida Gwaii and last month my wife and I finally made the dream come true, as the photo above will attest.

Today Haida artists work in all media, copper and silver jewellery, weaving, paintings, carved small objects such as bowls, spoons and miniature ceremonial objects, often in jade and argillite (a form of hard slate found only on Haida Gwaii) and, most famously, large wooden totem poles, typically between 40 and 50 feet tall. It was the late 19th century photos of Skidegate and other Haida villages that made the islands famous. Curved shingle beaches fringed with cedar beam houses, each with its clan totem in front, with the thick untamed forest behind, as shown in this 1878 photograph by George M. Dawson.

Black and white photograph of totem poles and a historic building along a beach, with canoes in the foreground and trees in the background.

Public domain: Wikimedia Commons

Those days are gone, although the beautiful Haida Gwaii museum and cultural centre in Skidegate, captured in my photo above, attempts to recapture the romance of those early days. Most of the villages were abandoned as disease decimated the Haida population. The survivors were encouraged by the missionaries to resettle in one or two centres. Carving of totems was actively discouraged. Cultural traditions such as the potlatch were outlawed by the government of the day. Many poles were taken away to museums around the world, such as the British Museum, Humboldt Museum in Berlin, Royal Ontario Museum in Toronto and the American Museum of Natural History in New York, while those that remained were left to be reclaimed by nature as part of the natural cycle of birth and death. And yet, today, it is still possible to see a few remnants of 19th century poles, while a number of new poles have been carved and erected in recent years, including those at the Haida Gwaii museum. The totems are an indelible signature and symbol of the Haida nation (although a number of other First Nations along the B.C. and Alaska coasts also carved similar poles). However, are they also individual works that can be protected by copyright? The answer, in most instances, seems to be yes. It depends on whether the pole can be attributed to an individual or a small group of individuals as “joint authors” (or in the case of paid employees, to a corporation that employed them). Traditionally a pole belonged to the clan (the Haida have two clans, or “moieties”, raven and eagle) or family that resided in a dwelling featuring a pole, but nonetheless if an individual pole can be identified with a specific artist, modern copyright protection would apply.

The day we visited the Museum in Skidegate, there was lots of activity in the carving shed. Two poles were being worked on. I chatted with a couple of the carvers and learned that each had a specialized role, but none of the carvers we spoke to were “in charge” of the pole. That role belonged to “Norman”, who had the commission for the poles and who also appeared to be the designer. The others were chiselling and smoothing, following his designs that had been stencilled on to the wood. These poles are apparently destined to be erected on the waterfront in the nearby village of Skidegate.

A workshop interior with two men carving a large wooden log, surrounded by tables with tools and wood shavings on the floor. Natural light enters from a window, and another wooden structure is visible in the background.

Photo: Author

The master carver/commissioning entity (Norman?) should be able to assert copyright over the work, even though some of the actual carving was done by others. Copyright can be held by the master artist even though they may not have personally executed every element of a work. This was the case with the famous glass artist Dale Chihuly who was sued by one of his staff, one Michael Moi, who claimed that he was not just an employee in Chihuly’s studio but a co-creator. At the time (2017) I wrote a blog post in which I pointed out that in a studio controlled by a master artist (like Chihuly or Andy Warhol for example), the master could legitimately claim to be the creator if they exercised overall artistic control. That included “signing off” or authenticating the work as meeting their standards. The US District Court in Seattle was apparently of the same mind as Moi’s claim was thrown out in 2019.

What about joint authorship being shared among the carvers? There are provisions in Canadian copyright law for joint authorship, with no limit on the number of authors who can be involved, but it is generally accepted there must be intent and mutual understanding from the outset on the part of all parties that the work will be one of joint authorship (a US concept that has been applied in Canadian legal cases). A joint work exists, subject to mutual agreement, where the work of one author is not distinct from the work of the other(s), although the contribution of each party does not have to be precisely equal. But it must be substantial. There needs to be joint labour in execution even if one contribution is qualitatively or quantitively inferior to the other. Therefore, it is possible that two or more carvers could execute a work where they could claim to be joint authors, or co-owners of the copyright in the work. This, however, does not seem to be the case with notable Haida totem poles carved in recent years.

The most notable individual names in Haida pole carving (apologies to anyone I have inadvertently left out who should be included) are, using their English language names, Charles Edenshaw (1839-1924), Bill Reid (1920-98), Robert Davidson (b. 1946) and Jim Hart (b. 1952). Interestingly, but perhaps not surprisingly, Reid, Davidson and Hart are all related to Edenshaw. He was Reid’s great-great uncle and great grandfather to both Davidson and Hart. Hart, a member of the Order of Canada, has been a prolific pole carver, and there are several well-known poles directly associated with him. Among these are the Reconciliation Pole at UBC, erected in 2017 and other poles at the university’s Museum of Anthropology. These poles are all recognized as the works of Jim Hart. As such he would have a copyright claim on the design of his poles, even if they followed traditional designs. He could not stop someone else from using a similar traditional design, but he could prevent copying of his precise expression of those designs. Photos of the poles, however, such as those at the top of this blog, are not protected by copyright under what is commonly referrred to as the “freedom of panorama”. Section 32.2(1) (b) (ii) of the Canadian Copyright Act applies.

Just in case you were wondering, this says;

“It is not an infringement of copyright…for any person to reproduce, in a painting, drawing, engraving, photograph…a sculpture or work of artistic craftsmanship…that is permanently situated in a public place or building”

Whew. My photograph above is not infringing.

Back to Jim Hart. I have focussed on Hart because I had a brief personal encounter with him and one of his carved works in an unusual place for a totem pole, Seoul, Korea some 35 years ago, when we were both much younger. At the time, 1990, I was an officer at the Canadian Embassy. Then, as now, the embassy was actively working to promote increased trade and investment between Canada and Korea and to promote bilateral ties, we organized a Canada Week in March of 1990. There were a series of cultural and business events, including the opening of a major Canadian Trade Show at the KOEX, an exhibition centre in Seoul. Someone in Ottawa had the bright idea of shipping a pole carved by Hart to Seoul as a cultural attraction to help promote Canada Week. The pole had been shipped from Vancouver to Yokohama to be part of the Canadian pavilion at the Yokohama Expo ’89. Why not send it on to Seoul before it was shipped back to Canada? As a result, one of my key tasks was to negotiate with various Korean municipal authorities to have the pole erected at the front entrance of the KOEX. In a note of binational solidarity, Hart’s enormous pole was to be matched with two Korean jangseung, smaller (about 6 feet) poles that traditionally were erected at the entrance to Korean villages. They feature carved faces designed to frighten off evil spirits and bear some resemblance to small totem poles. While there is no proven cultural or genetic connection between Koreans and North American Indigenous peoples, Koreans are fascinated with the possibilities, and this “hook” gave us a real publicity boost.

A collection of wooden totem poles with carved faces, standing in a garden area. The background features a stone wall and bare trees under a clear sky.

Image: Shutterstock.com

The difficulties we faced in finding a suitable site in front of the exhibition building, and then getting approval from the municipal authorities and the utlities seemed insurmountable—but we did it. The digger went to work to excavate the hole for the pole—until buried electrical wiring was discovered. A quick adjustment was made and Hart’s pole was exhibited “lying down”, on its back, with the top of the pole slightly raised, under a plexiglass cover in front of the main entrance. Erecting the jangseung upright beside them was relatively simple by comparison. Before we knew it Korean children were clambering all over it, and we had to hire a security guard to shoo them away before the big opening the next day. On March 27, 1990 Canada Week at the KOEX opened with widespread Korean media coverage. Jim Hart, who was there, performed a ceremony around the pole and was interviewed by the Korean media. Two Canadian pianists, Anagnosen and Kinton who, it appears, are still actively performing, played just inside the entrance. The event was a huge success. I breathed a deep sigh of relief. Jim Hart and his work of art had helped make it all happen. I don’t know what has happened to that particular pole. It was shipped back to Canada and may today be looking out over the beach at Massett, Haida Gwaii, Jim Hart’s home. I had hoped to make contact with him during our visit there but regrettably was not able to do so. 

I realize I have taken a very long detour to answer the question as to whether a totem pole can be copyrighted. While Indigenous cultural expression does not always align well with western legal concepts, partly because of the individuality requirements and time limitations of works protected by copyright statute, I hope I have demonstrated that, yes, a unique totem pole in which identifiable individual or joint authorship can be determined, is indeed protected by copyright.  

© Hugh Stephens, 2026. All Rights Reserved.

Update: I have subsequently learned, upon reading the recently released book 7IDANSOO James Hart: A Monumental Practice, published by the Audain Art Museum, that the pole in question, a replica of a 19th century pole that once stood at the now-abandoned village of Yan across the estuary from Old Masset, was installed at Yan in 1991, where it stands to this day. The Audain book is a comprehensive catalogue of Hart’s life and work, beautifully edited and presented.

Art on Ice

A serene underwater image of a person with closed eyes, partially submerged, surrounded by bubbles and ice.

Reproduced with permission of the artist

It was the eerie, almost creepy yet beautiful image of a young woman apparently face-up, frozen under the ice while serenely exhaling air bubbles, that caught my attention. CBC News produced a video reporting on how New York-based artist David Popa creates artwork on frozen lakes, in this case Abraham Lake in Alberta. Popa uses chalk and charcoal to create his works. The quality of the ice surface is all-important, he says. He has done other works off the coast of Finland on the frozen Baltic Sea but prefers Alberta lakes because of their deep blue hue, caused apparently by sudden freezing. Popa goes a lot of trouble to create artworks that disappear shortly after their creation, ephemeral works which, because of the medium on which they are created, do not qualify for copyright protection unless preserved in some other medium (like the CBC footage). In copyright terms, this is referred to as “fixation”.

It seems that every couple of years I write a piece about the attributes of copyright, outlining the basic requirements it takes to establish copyright in a work. (This is for readers new to copyright, not the old pros). One of the hot topics right now is the role of AI. Various attempts have been made to register AI-generated works with the US Copyright Office, to date all unsuccessful. In jurisdictions such as Canada, where registration is simply a convenience rather than a requirement (in the US there is also no requirement to register copyright but if a rightsholder wants to take legal action to enforce a copyright in the US, prior registration is required), works generated by AI have received Certificates of Copyright. However, this actually proves nothing as in Canada there is no examination of the work itself. Issuance of the certificate is automatic upon payment of the fee provided the work has not already been registered by another Party. This has led to a legal challenge to the Canadian system from the University of Ottawa’s Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), an action that has proved controversial in some quarters. CIPPIC is challenging the Canadian registration of a work by Indian artist Ankit Sahni, who claimed his artistic work “Suryast” was jointly authored with his AI platform “Raghav”.

But while the role of AI in the creation of a work remains in flux (AI-assisted as opposed to AI-created works are more likely to be recognized as copyright protected), another required attribute, fixation, has not changed. Fixation is the fancy term of art establishing that the work is more than ephemeral, that it can be perceived and has a degree of permanence—although permanence itself is not a requirement. After all, what is “permanence”?  In the past I have discussed fixation with regard to such works as sand and ice sculptures, and even wedding cakes. (here and here).

The requirements for fixation vary slightly from country to country. In the US, a work must be “fixed in a tangible medium of expression” meaning it must be able to be visually or audibly perceived. This is to prevent claims to copyright of unexpressed ideas, noting that copyright only protects the expression of an idea, not the idea itself. In the UK, British copyright law does not explicitly require fixation or permanence for artistic works (as opposed to literary, dramatic, or musical works, where it is required). In Canada to qualify for copyright protection a work must be fixed in a material form, such as paper, a video recording, audio recording, hard drives or memory card, even though fixation is not defined in the Copyright Act. The point is to ensure that the creation exists in some form other than in the author’s head. The website Copyrightlaws.com notes that;

In some cases, a work may not be considered fixed. One example may be works such as lectures, speeches, addresses and sermons that have not been written down or recorded in some manner prior to their presentation. The same may be true of an improvised comedy skit, a jam session or an improvised tune.  An unsaved image or text on a computer screen is not considered fixed.

While the Government of Canada site gives examples of acceptable material form, other forms beyond paper and digital recordings could include metal, canvas, wood, fabric, concrete and other material substances. What it almost certainly does not included, however, is ice. That is what brought me back to this topic, as outlined in my opening paragraph above.

Popa himself says, “My works are made to disappear. Wind, weather, thaw — nature always takes the final brushstroke… and somehow that impermanence makes the whole thing feel more alive”. His works will last until spring comes when they will disappear along with the ice roads, snowmobile tracks and left-behind ice fishing huts that someone forgot to remove. They must have all disappeared about a month ago, if not sooner.

But is the original work (i.e. not the photograph of the work, but Popa’s original) protected by copyright? Almost certainly not (note the “escape hatch” which is always required when discussing copyright generalities). If I had been able to get to Abraham Lake to photograph the work, I would be in the clear from a copyright perspective to use my photograph, to which I could claim copyright, the basic underlying work being unprotected. However, if I were to take a photograph of the work from the CBC video to use as an illustration for this blog post, or use one from Popa’s website, I would arguably be violating the copyright of either the CBC or Popa. I would need permission. So that’s what I did. I contacted Popa.

I am happy to say he generously agreed to grant me permission to reproduce and display the artwork at the top of this blog post. Thank you, David. If you would like to see how the work was actually created, watch here. It’s a remarkable piece of outdoor artistic creativity.

© Hugh Stephens, 2026. All Rights Reserved

Like Wasps at a Picnic: (Distracting from the Canadian Heritage Committee Report on AI and Creative Industries)

Close-up of a wasp drinking from a metallic surface with blurred green background.

Image: Pixabay.com

It was as predictable as wasps at a picnic. Within days of the Canadian Parliament’s Heritage Committee releasing its report on “The Impact of Artificial Intelligence on the Creative Industries”, with its lead recommendation being (my highlights)…

That the Government of Canada protect the property rights and interests of artists through the principles of the Copyright Act, in accordance with the ART principle—authorization, remuneration and transparency:

a) The Government of Canada must take the necessary steps and ensure that the scope of the Copyright Act applies to AI-generated content in order to guarantee copyright protection.

b) The Government of Canada must mandate greater transparency from AI developers regarding copyrighted works used to train their models, including disclosure of training data sources, to enable proper authorization and licensing.

c) The Government of Canada must establish a clear opt-in consent requirement for the use of copyrighted works in the training of artificial intelligence systems, ensuring that creators’ works may not be used for text and data mining or model development without their prior authorization.

…prolific tech and copyright commentator Michael Geist of the University of Ottawa was attacking its conclusions, issuing warnings that unless the tech industry is allowed (without authorization or compensation from rightsholders) to help itself to copyrighted content for the purpose of AI training, we will have “AI without Canada”. In other words, unless the tech industry is allowed to plunder Canadian content in the same way that it has been doing to date in the US (although this is meeting legal challenges and is quickly changing as licensing solutions take hold), there will be less Canadian content in the training data. This, apparently, will leave Canada as an “outlier” compared to peer jurisdictions. The AI developers will turn their back on Canada and rush off elsewhere. (This is a standard threat deployed by the AI industry to play off one country against another). He cites the EU, Japan, Singapore and Israel, as well as the US in support of this interpretation. Not mentioned as “peer jurisdictions” are the UK and Australia but then that would not have served the purpose of his narrative. Australia has recently declared it will not be legislating a Text and Data Mining (TDM) exception to its copyright laws to legalize unauthorized ingestion of copyrighted works for AI training, while the UK has just hit the pause button on a series of ill thought-out and badly received proposals to allow AI developers to freely use copyrighted content to train their AI algorithms unless rightsholders specifically opt out.

Singapore and Israel are among a small minority of countries that, under US pressure, have adopted US-style fair use laws that potentially allow for a weakening of copyright protection through a hodge-podge of court rulings. While many cite Japan as a jurisdiction that has given carte blanche to tech interests and AI developers, the facts are quite different as I pointed out in this blog post a couple of years ago. Japan has a strong cultural industry that it wants to nourish and protect and has defined its TDM exception very narrowly and carefully. The EU, has two provisions in its Copyright Directive related to AI training (Article 3 which permits TDM carried out only for non-commercial scientific research purposes, and Article 4, which permits TDM for any purpose, including commercial, as long as rightsholders have not opted-out, subject to strict transparency provisions by AI companies). Both impose constraints on AI developers, although there are differing views on opt-out.

Opting-out may sound like a compromise that both rightsholders and the AI industry could support but Britain’s example demonstrates otherwise. In its now aborted public consultation, the UK government put forward several options including its “preferred” option of opt-out. Fully 97 percent of respondents, from both the tech and creative communities, trashed this option. For creators, opting out not only stands copyright on its head (it is a property right, so why should holders of that right be required to notify someone who wants to infringe on that right that they may not do so, i.e. it’s like passing a law allowing anyone to picnic on my front lawn unless I post a “No Trespassing” sign), but it is technically difficult to do, especially for individuals and small-scale rightsholders. The robots.txt protocol is not binding and is in many cases not very effective. The tech industry doesn’t like opt-out because it imposes constraints on their untrammelled ability to access anyone’s copyright-protected content, anywhere, anytime. Instead the Committee recommends “a clear opt-in consent requirement” for the use of copyrighted works in the training of artificial intelligence systems.

Now it’s my turn to quibble. IMHO, there should be no explicit need for a rightsholder to “opt in”. I think that Canada’s copyright laws, properly interpreted, already provide sufficient protection to prevent unauthorized use. A rightsholder can “opt in” to AI training or any other unauthorized use not subject to fair dealing by granting a license to use their content. If that is an “opt-in” requirement then I am in favour. If yet another opt-in step is required, this would seem to be unnecessary. Licensing is a growing phenomenon. AI developers want reliable, curated content to develop their applications. As long as they are prevented from simply helping themselves, there is incentive for them to reach licensing deals with content owners. However, giving the tech industry a pass by allowing themselves to take for free whatever they want in the name of developing AI applications (for their commercial advantage) removes the needed incentive to negotiate with rightsholders. As to whether unauthorized use for AI training constitutes fair dealing, as Dr. Geist claims (“most TDM for AI training purposes would likely qualify as fair dealing under existing law”), this is doubtful to say the least. It is hard to imagine which fair dealing purpose currently applicable in Canadian law (research, private study, education, parody or satire, criticism or review, news reporting) would apply particularly when there are fair dealing limits to the amount of a work that can be used for such purposes, and specific factors that must be applied as to the effect of the dealing on the work.

The Committee’s lead recommendation is not the only complaint that Dr. Geist has about the Committee’s report. He feels it is unbalanced because the majority of its witnesses represented the cultural industries. It’s true that its lead recommendation is very much in line with the mainstream views of the Canadian cultural community.  It was, after all, the Report of the Standing Committee on Canadian Heritage. This reminds me of the conflicting reports on copyright issued a few years ago by the Heritage Committee and its counterpart the INDU Committee. The 2019 Heritage Committee report, titled Shifting Paradigms, was attacked at the time by Dr. Geist as “the most one-sided Canadian copyright report issued in the past 15 years”. He claimed that there was “no attempt to engage with a broad range of stakeholders”, even though he himself appeared along with a number of others who shared his perspective on copyright. Shortly after issuing its own report, the INDU committee then issued a tone-deaf “We’re in charge” press release reminding the world that it had “sole responsibility” for administering the Copyright Act. (This is not strictly accurate). Dr. Geist’s main complaint, whether with “Shifting Paradigms” in 2019 or the current Heritage Committee report seems to be that the Committee members, in their wisdom, did not take his expert advice.

What is the function of Parliamentary Committees? It is to hear evidence, draw conclusions and make recommendations. He complains that while there were different points of view, including notably his, on how to tackle the issue under study, the Committee’s conclusions did not reflect these views. Was it because, numerically, there were more pro-copyright witnesses from the creative community that those from the Geist camp? That is theoretically possible if it were just a mathematical exercise of adding up comments in a pro and con column. But that is not the case. While the Report made a conscientious effort to capture the full range of comments, including those of Dr. Geist, in the end the members (from three political parties) made a judgement and reached consensus conclusions. (Although the Conservative Party members provided their own addendum that added to but did not refute the Committee’s conclusions). Presumably the members of the Committee were more convinced by the force of the arguments presented by some witnesses than others. Given the range and similarity of concerns presented by disparate members of the creative community it is not surprising where they came out in terms of conclusions.

Dr. Geist is entitled to disagree with these conclusions and recommendations. To be fair, his blog commentary echoes the position he presented to the Committee, except for his complaints about process. As I said at the outset, his attack on the Committee’s report is entirely predictable, like wasps at a picnic. And those wasps can be so annoying, distracting from the main event with the occasional bite and annoying buzzing, but as any determined picnic-goer knows, it’s important to not let them become the centre of attention. The Heritage Committee’s report was carefully considered and drafted by an all-party group after hearing from a wide range of experts. It provides important recommendations that the government would be well advised to take into account as it develops a legal framework in which both the AI and creative industries can co-exist and flourish.

© Hugh Stephens, 2026. All Rights Reserved

What is a Canadian Book? And Why Should I Buy One?

A display table covered with various books, featuring a sign that says 'Read the North.' The books include a mix of fiction and non-fiction, many with Canadian-themed stickers.

Image: Author

Walk into any bookstore in Canada today, from an Indigo big box store to a small indie outlet, and if you aren’t smacked in the face with books covered in prominent maple leaf logos, or a banner proclaiming “Canadian!”, then you must be living on a different planet from me. Of course, the same applies in your local grocery store where—despite occasional mislabelling—consumers are apparently more than ready to choose Canadian produce at the expense of Florida oranges or California raspberries. If you run a travel agency, it’s better to advertise trips to Newfoundland than Disneyland. The federal government is encouraging the trend with its new “Buy Canadian” procurement policies. If consumers need help, there is even a “Made in CA” (Canada, that is, not California) website, which sustains itself financially by recommending Canadian products and then earning revenue from readers’ clicks on featured links. The surge in Canadian consumer nationalism is one facet of Canadians’ response to Donald Trump’s “make Canada the 51st state” nonsense, and retailers would be foolish to ignore the trend. Booksellers are no exception. But the question is whether this sudden discovery of the virtues of Canadian (or supposedly Canadian) products is having any marked difference on the sale of Canadian books. This leads to the next big question, “What is a Canadian book?’.

That is a longstanding debate on which there are many views. I recently saw a pile of “Canadian” books at Indigo, among which was anti-copyright maven Cory Doctorow’s Enshittification. A Canadian work? Yes, Doctorow was born in Canada but has taken out UK citizenship and has lived in the US for a decade. The publisher is a print of MacMillan, which was British owned but is now German controlled. However, I guess Doctorow is as Canadian as John Kenneth Galbraith or William Shatner. Why shouldn’t Star Trek Memories qualify as Canadian literature? No country has a claim on outer space in the 23rd Century. Is a book Canadian if it is written by someone who is, or was, a Canadian? Do they have to be a citizen or does a recent immigrant qualify? Does it have to be set in Canada? Does it need to be published by a Canadian publisher? If it is published by a Canadian publisher (like my book, In Defence of Copyright, published in 2023 by Cormorant Books—apologies for the shameless plug), does this make it “more Canadian”? Is the fact that foreign owned publishers control around 95% of the Canadian publishing market in 2025 a problem? If so, what to do about it, and how? Should the best Canadian writers eschew foreign publishers and instead seek out domestic publishing houses, even if this means they will earn less? There is a lot to consider.

The evidence suggests there has been an uptick in demand for Canadian books in Canada. Publishers’ Weekly reports that print book sales in Canada climbed to CAD$1.15 billion (around USD800 million) in 2025, a gain of 4.1% over 2024. Many of these books were not Canadian although books by Canadian authors accounted for 14% of unit print sales in 2025, up from 12% in both 2024 and 2023. Fourteen percent of $1.15 billion is about $160 million, not small change. However, most of these books by Canadian authors were published by the “Big Five” (Penguin RandomHouse, MacMillan, HarperCollins, Hachette, and Simon&Shuster). All are foreign owned (two German, one French, and two American). Some of the Canadian works were released as international editions, some by the domestic Canadian operations of the Big Five. The most well-known Canadian authors, including Nobel Prize Winner, Alice Munro, and Booker/Giller prizewinner Margaret Atwood (The Handmaid’s Tale, The Testaments, The Blind Assassin and others), were/are all published by large international publishing houses, as you would expect. (Munro and Atwood are published in Canada by McClelland&Stewart, owned by Penguin RandomHouse). Even Prime Minister Mark Carney’s bestseller, Values, is published by a foreign owned publisher, a Penguin RandomHouse subsidiary. Is this a problem? To some, such as Richard Stursberg, it is.

Stursberg has just released his latest book, an essay really (under 100 pages) entitled Lament for a Literature: The Collapse of Canadian Book Publishing, published by independent Canadian publisher Sutherland House. Stursberg knows whereof he speaks. He has been involved in the bureaucracy and politics of Canadian media policy for many years, as Executive Director of Telefilm Canada, Chairman of the Canadian Television Fund and as Head of English Services at the CBC, among others. “Lament for a Literature” (a takeoff on George Grant’s 1965 essay “Lament for a Nation”) has already received a fair amount of publicity, through interviews (MediaPolicy.ca; Canadian Affairs), and commentary (Globe and Mail). There seems to be broad agreement he has put his finger on a problem and a Canadian weakness, but the question remains what to do about it? There is a lot less consensus on possible solutions.

Stursberg’s approach is what many would consider draconian. Increase subsidies substantially and remove the Canada Council’s adjudicative role over what should qualify for a subsidy. Make the subsidies open ended and tied to production, like film credits. While this will be criticized as fiscally irresponsible, no-one seems to object to film credits (which are direct subsidies) because they support jobs in film production. Publishing supports jobs too, although not as many and not as wide a variety. So, maybe an argument can be made for subsidizing jobs in Canadian publishing. (However, to follow the film credit analogy fully, Canada would have to provide book credits to foreign publishers as it does to Foreign Location Shooting in Canada). Stursberg would also manipulate the market in various ways through regulation and a Canadian book law. This would require a foreign rights holder wanting to distribute a foreign title in Canada being required to offer the distribution rights to a Canadian publisher. This is easier said than done because price will be the key. The international publisher will want maximum return, while the Canadian publisher will want to cash in by selling a title they did not develop. Giving Canadian publishers a share of the international pie is the intent of the policy; to provide a market subsidy to Canadian independent publishers by giving them regulated access to foreign best-sellers. That is supposed to provide them a war chest with which to fund the development of Canadian authors. It is similar to a book version of various broadcasting industry interventions, such as simultaneous substitution and aspects of the Online Streaming Act.

There are various downsides to this kind of market intervention, not the least of which is violent objection from the US government, but these days they are objecting to just about everything that Canada does, from Mark Carney’s trip to China (isn’t Donald J. going there soon?) to the Online Streaming and Online News Acts, to dairy supply management to the price that Canadian kitchen cabinets are sold in the US, the latter qualifying (in the eyes of the US Administration) as a national security threat allowing them to invoke Section 232 of the US Trade Act. A heavily interventionist policy could also lead to market distortions, resulting in unauthorized foreign editions of best-sellers being smuggled into Canada, much as pizza cheese from the US has become a black market commodity as a result of Canada’s dairy supply management policy.

Stursberg has other suggestions, such as legislating a fixed retail price for a given work in all bookstores, thus preventing Amazon and Indigo, for example, from offering discounts that indie bookstores may not be able to afford, as well as requiring that online retailers charge a delivery fee. So much for Amazon Prime. That will be popular with readers, I am sure. Public schools and libraries would be required to source all their books through accredited bookstores. To be accredited, a store would need to carry a minimum number of Canadian titles. Public institutions could not source from online retailers. That is another sure way to antagonize institutional purchasers, although I am sure it could be argued it is for the “greater good”. But all such bureaucratic market intervention policies cause collateral damage and often unintended consequences. So, what is to be done?

In my experience, reading remains remarkably popular both for entertainment and intellectual growth, in Canada as elsewhere. Canadians should be naturally interested in their own stories played out in Canadian settings, but these stories need to compete with what’s available in the big, wide world. Relevance and excellence (along with marketing) are the way to promote a domestic literature. I refuse to read a book simply because it is “Canadian” (whatever that may mean), but I will likely pick up a book that piques my interest and is well written, especially if it is Canadian. Perhaps the newfound nationalism of “Buy Canadian” will provide a boost to emerging and established Canadian writers. Some of them will get picked up by the Canadian imprints of the Big Five, some will be discovered by Canadian indie publishers and still others will self-publish. I am optimistic that despite the dominance of the Canadian publishing market by foreign publishers through their Canadian subsidiaries, good Canadian stories will continue to be published. A stronger indie publishing sector would be welcome and. in this regard, industrial rather than cultural subsidies may provide a partial response. In the meantime, I am sure that Canadians will continue to debate, “What is a Canadian book?” Whatever it is, we need to look beyond the Maple Leaf label on the cover.  

© Hugh Stephens, 2026. All Rights Reserved.

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.

© Hugh Stephens, 2026. All Rights Reserved.

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