Month: September 2022

As Bill C-18 continues its deliberate journey down the Canadian Parliamentary legislative track on its way toward enactment, the Bill’s prime targets (Alphabet, in the form of Google Search and Meta in the form of Facebook) continue to deploy the full force of their lobbying efforts to derail the legislation. Their most recent effort is a White Paper released earlier this month by Washington DC-based tech industry lobby group, the Computer & Communications Industry Association (CCIA). In a valiant but scarcely credible effort the CCIA attempts to argue that if enacted, C-18 would violate Canada’s international trade obligations, specifically commitments it made in the recently updated NAFTA accord (USCMA/CUSMA) and those required by virtue of its membership in the international copyright treaty, the Berne Convention.

In the process, the paper rolls out a number of other arguments against the legislation, such as claiming that it will benefit only a “select few large and powerful media companies” and will “do little or nothing to support sustainable or quality journalism in Canada”, while claiming that it will promote disinformation and content from untrusted third parties. The paper’s authors even claim that any payment from the digital intermediaries, who have scooped up the lion’s share of ad revenues (largely through leveraging content produced by others, usually without any payment), will “jeopardize the long-term viability of the (media) sector”. How will this happen? I guess it is supposed to make them fat and lazy. I will give the authors an “A” for creativity in terms of the range of objections they manage to roll out, but an “F” for making a convincing argument.

What readers should know is that the legislation is currently targeted primarily at two major US-based internet platforms, “digital news intermediaries” in the words of the legislation, just as Australia’s recent legislation to enact a News Media Bargaining Code aimed at the same two companies (Google and Facebook). However, they are not named in the Bill which, if passed, will apply to a;

“…digital news intermediary if, having regard to the following factors, there is a significant bargaining power imbalance between its operator and news businesses: (a) the size of the intermediary or the operator; (b) whether the market for the intermediary gives the operator a strategic advantage over news businesses; and (c) whether the intermediary occupies a prominent market position.”

Intermediaries have to self-designate, and the definition is generic, but it is clear who we are talking about. The CCIA paper goes to great lengths to quote Canadian politicians to show that Google and Facebook are the main targets although there are also references to “GAFAM”. (Google, Apple, Facebook, Amazon, Microsoft). If the shoe fits, wear it. No one has ever denied where the problem lies. And yes, they happen to be all US companies—for the moment.

The CCIA paper argues that if Alphabet and Meta are the only companies captured by the legislation, this amounts to a denial of national treatment (treating entities of your trading partners in an equivalent manner to domestic entities) and would be a USMCA/CUSMA treaty violation. But is this true? Hardly. Unless a measure is proven to be a disguised barrier to trade, as long as it applies to all companies, domestic or foreign, it will be difficult to substantiate a national treatment violation even if at the moment it affects only certain companies because of their size, market dominance or some other reason. Just because the affected companies happen to be headquartered in the US, it does not follow that this is an action targeted exclusively at US or foreign companies. For example, given the growing use of its platform for news distribution, it is possible that a platform like TikTok could fall within the ambit of the legislation.

C-18 is no more a violation of the national treatment principle than the EU’s Digital Markets Act (DMA), which targets the anti-competitive behaviour of “internet gatekeepers”, who happen to be prominently represented among the GAFAM US-based companies. The US government has not objected to the DMA on national treatment grounds (although Silicon Valley certainly has). Such criticisms as there are accuse the EU of targeting US “gatekeeper” companies in order to protect competing European companies. In the case of Canada, there is no suggestion that any provision of C-18 is designed to offer trade protection to Canadian companies competing with the “digital news intermediaries”. In short, charges that C-18 violates Canada’s national treatment obligations are a red herring.

Just as the Bill contains a definition for digital intermediaries that are subject to the legislation, so too it defines an “eligible news business”. An eligible business, one that can enter bargaining with the platforms for compensation for use of Canadian news content, is any entity producing news content that receives the journalism tax credit or which has a minimum of two journalists in Canada and operates and edits material in Canada. That hardly limits the benefit to “large and powerful media companies”. The CCIA paper goes on to argue that the definition of an eligible news business will make it difficult for Canada to avoid a charge of unjustified discrimination against US media organizations. This argument must truly be galling to US news producers, none of whom belong to the CCIA and most of whom are engaged in trying to bring about the same legislation in the US as Canada is proposing.

In claiming that the legislation is a violation of national treatment, the CCIA makes the laughable comparison with the maple syrup industry, where Canada apparently has a 66% percent market share in the US. (Canada exports 85% of global production). Apart from the fact that there are over 8000 businesses producing maple syrup in Canada spread over 5 provinces (although the large majority are in Quebec, where the climate is most conducive), it is hard to equate the $300 million in Canadian maple syrup exports to the US to the role that Google and Facebook play in the Canadian digital ecosystem. There is no one, giant maple producer that controls 95% of the market in the way that Google dominates online search, or which controls 80% of digital advertising revenues as Google and Facebook do. But this is not the only flaw in reasoning in the paper.

It claims, incorrectly, that C-18 “in essence” imposes a must-carry obligation on US digital news intermediaries with respect to Canadian news content because of the non-discrimination provisions of the legislation. This is way off base and just plain wrong. While it is likely true that to operate successfully in Canada, Google and Facebook need to reference and link to Canadian news media content in order to appeal to Canadian consumers, they are not obliged to do so by the legislation. However, if the platforms opt to “make available” Canadian news content, then they will be subject to the Act and be required to enter compulsory bargaining with news providers, subject to final, binding arbitration if negotiations fail, as was the case in Australia. (If they voluntary reach agreement with news providers, the compulsory bargaining and arbitration provisions will not apply, again, as per the Australian example).

C-18 (Section 51) imposes a non-discrimination requirement on any internet intermediary that makes Canadian news content available in order to ensure that platforms cannot demote or promote certain content over others for their favoured or disfavoured partners, particularly during the negotiation phase. But Section 51 does not require them to make Canadian content available, as the CCIA paper claims, and the law does not prescribe any form of mandatory carriage. The CCIA paper also states incorrectly that if a digital intermediary decided not to make available any Canadian news content, this would prevent it from displaying non-Canadian sources such as the New York Times or the South China Morning Post. This is a fanciful re-interpretation of the Bill. To reiterate, the non-discrimination provision does not require that Canadian news content be made available; however, if it made available then it must be done in a non-discriminatory manner. Distribution of non-Canadian content is not subject to this provision. The wording is Section 51 is clear. The non-discriminatory provisions apply only to “news content that is produced primarily for the Canadian news marketplace by a news outlet operated by an eligible news business”. An “eligible news business” must be based in Canada.

While there is no legal requirement to carry (make available) Canadian news content, nor is there any provision that prevents the distribution of non-Canadian news content in Canada, the market reality is that if Google and Facebook are to be successful in the Canadian market of 38 million people, they will have to make Canadian news content available to their users, as they have been doing. They produce not one column inch of content yet benefit from the readership that this content attracts through domination of digital ad markets. It is this anomaly that the legislation is designed to correct.

Because the CCIA paper has chosen to mischaracterize the bill, its arguments that C-18 violates Canada’s trade obligations under the USMCA/CUSMA and Berne do not stand up to scrutiny. First, as noted above, simply because a measure at the present time may capture a couple of US companies even though broadly targeted, this does not mean the action is a violation of national treatment. The argument that the non-discrimination provisions are, in effect, a “must-carry” requirements for Canadian news content are also inaccurate, negating the argument that this is a violation of the investment chapter of the USMCA that prohibits the imposition of “performance requirements” on investments from a NAFTA country. Even if the above arguments were valid, which they are not, Canada could still invoke discriminatory measures under the cultural exception provision of the CUSMA, Article 32.6, because publication of newspapers, periodicals and magazines is defined as a cultural industry. The cultural exemption clause allows Canada to take measures to protect or promote a cultural industry even if to do so would infringe a USMCA/CUSMA obligation. However, invoking 32.6 would invite retaliation of equivalent commercial effect, and there is no need to do so because C-18 is not in violation of the USMCA.

Another argument trotted out by the CCIA is that C-18 will lead to a breach of Canada’s obligations under the Berne Convention (incorporated into the WTO) because, under Berne, there is a “right to quotation”. The paper also claims that the bill undermines longstanding legal principles related to limitations and exceptions to copyright protection. In Canada, these largely fall under the fair dealing provisions of the Copyright Act; in the US they fall under the somewhat broader “fair use” provisions. In fact, C-18 makes no changes to the Copyright Act, and designated internet intermediaries could still exercise a right to quotation under fair dealing if, for example, they produced content that required use of quotations. Fair dealing and other user rights under the Act are unaffected. However, fair dealing cannot be invoked by the designated platforms to avoid their obligation to enter bargaining with news providers, which is a measure designed to redress a market imbalance rather than adjudicate copyright issues. Put another way, the exercise of fair dealing under the Copyright Act does not provide immunity from the need to comply with other legislation, whether it be the Online News Act or some other legal requirement.

The relevant part of the draft legislation dealing with this issue (Section 24) states that “For greater certainty, limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process.” As I recently discussed (here and here), while the term “making available” covers linking, which is generally not a violation of copyright (except in certain, well-defined circumstances) and is thus a permitted activity under the Copyright Act, it is also subject to the bargaining framework when employed by designated digital intermediaries—and only the designated digital intermediaries, not other users.

While all these nuances could, potentially, be argued before a WTO or NAFTA panel (except that the US has frozen the WTO process by blocking appointments to the WTO’s appellate body), this raises the more fundamental question as to whether the US Government would be willing to take up cudgels on behalf of Google and Facebook. (A company cannot bring a trade dispute case itself; it has to be done by a government). Neither corporation is exactly in good odour in Washington these days and some of the actions the CCIA objects to are in fact already underway in the US. While the CCIA paper argues against C-18 because it will allow the Canadian media to bargain collectively, (becoming a “cartel” in the CCIA’s words), legislation that would provide exactly the same exemption from anti-trust provisions is currently before the US Congress. (The Journalism Competition Preservation Act-JCPA). It is also worth recalling that the US Government represents US interests broadly. Among those interests are the US journalism industry (which would like to see legislation similar to C-18 in the US) and other companies within the tech sector that are competitors of Google and Facebook. Let’s recall that when Google threatened to pull out of Australia, removing its search function because of impending Australian legislation very similar to C-18, Microsoft stepped in and offered to fill the void, at the same time indicating it would be happy to comply with the Australian law. (Google’s Tussle Over Payment for News Content in Australia: Microsoft Scrambles the Cards–With Positive Implications for Canada and Others) When there are disparate US interests and different voices–equally influential–to consider, don’t expect the US Government to rush to become advocates for Google and Facebook. While the CCIA took up their case, I note that both companies are members of the organization. Microsoft does not appear to be a member.

So, what then are we to make of all this? Simply put, the CCIA paper is a valiant but unconvincing lobbying effort. It tries to invoke scare tactics and threaten US retribution under the USMCA/CUSMA, but it’s a paper tiger. Its arguments are unconvincing and tendentious, and the likelihood of the US Government actually bringing a CUSMA case if C-18 becomes law are somewhere between very slight to zero. And if they did, the case would almost certainly fail.

Australia and France have already brought the big internet platforms to heel when it comes to working out equitable income sharing arrangements with news media. Canada will undoubtedly succeed in doing the same. The US will likely be next in line even though the CCIA will deploy its considerable lobbying heft to oppose action at home as it is doing in Canada.

© Hugh Stephens 2022. All Rights Reserved.

The lamented passing of artist and activist Lucinda Turner in Vancouver in early July reminded many of the struggle she engaged in to protect Pacific Northwest Coast Indigenous artforms from counterfeiting and copyright infringement. Turner, a non-Indigenous artist who worked for many years with Nisga’a master sculptor and carver Norman Tait, took up the cause of fighting to protect Indigenous, especially Pacific Northwest, art from blatant copying, plagiarism, counterfeiting and passing off after Tait’s death in 2016. Many of the unauthorized reproductions are produced in Asia, with large numbers of the carvings coming from Indonesia, being executed in teak or other wood not native to the Northwest Coast. Others are copies made closer to home, usually by non-native artists.

To combat the trade in fakes, Turner started the Facebook group Fraudulent Native Art Exposed (FNAE), in which she catalogued literally thousands of knock offs of native art. The site includes a registry of authentic native artists as well as a model DMCA takedown letter. (For those not familiar, the DMCA is US legislation that allows those whose copyright has been infringed to submit letters to internet platforms in the US requiring them to remove infringing materials from their site). Today, the group continues as a discussion forum. The topics are interesting, ranging from outing of retail outlets selling fake Northwest Coast art to discussions around cultural appropriation and who can claim native ancestry.

In 2019 Turner stepped up her campaign, drafting an open letter to the Canadian government. In it she called for introduction of legislation and policies to uphold and protect Indigenous intellectual property and copyright through stricter laws and enforcement. Specifically she put forth five recommendations;

1. Clearer identification to make it easier for a buyer to determine if a work is authentic or not. Institute for Northwest Coast Indigenous artists a system similar to the Canadian “Igloo Tag Trademark” or Alaskan “Silver Hand” that protects Inuit and Alaska Native artists from fraud, cultural appropriation, and theft, by distinguishing authentic Inuit and Alaska Native works from those using Arctic imagery;

• The introduction of an Indigenous Artists Registry using blockchain technology to enable a direct link to an artist’s portfolio and biography, providing artists with a place to document designs, control ownership, establish provenance, and track works as they are sold;

• Criminalize and enforce laws against fraudulent acts of purporting to donate proceeds or parts of proceeds to Indigenous communities or associations (fundraising for Indigenous causes using Indigenous images without authorization);

• Encourage the sale of Indigenous art by eliminating Federal and Provincial sales taxes on these items while retaining (or even increasing) taxes on “Native-Inspired” pieces;

• Distribution of information pamphlets on where and how to buy authentic Indigenous art in places such as high-traffic tourist areas to help teach consumers how to identify authentic art, and what questions to ask such as: where the product was created, the artist’s name and First Nation affiliation, and whether or not the artist receives royalties from the sale.

These recommendations are a combination of legal action and raising consumer awareness through information and marketing. As in many things, price will usually be the first indicator of whether or not an article is genuine but is not always determinative, especially when well-executed knock-offs are marketed at similar prices to authentic works.

Despite Turner’s call to action, and despite recognition by two Parliamentary committees in 2019 (the Shifting Paradigms report of the Heritage Committee and the INDU Committee Report from the Committee on Industry, Science and Technology) of the need to take special measures to protect Indigenous art, almost nothing has been done to date. This is partly due to delays in revising the Copyright Act (required every five years, with the last revision being in 2012) because of the interruption of two elections (in 2019 and 2021), as well as the government’s focus on other priorities including combatting COVID.

The Minister for Canadian Heritage, the head of one of two government departments responsible for copyright, has been preoccupied with other legislation, such as the Online Streaming Act, Online News Act and legislation dealing with online harms. The lead department responsible, Innovation, Science and Economic Development, has had many other issues to deal with and copyright has been put on the back burner. That may be changing now the Trudeau government has secured a likely mandate to govern until 2025 through a confidence and supply agreement with the opposition New Democratic Party. There is now sufficient time to bring forth proposed changes, conduct public consultation and hopefully get changes through Parliament before another election intervenes and cuts short the legislative process.

With copyright review getting underway within the bureaucracy, calls for more action to stop the trade in fake Indigenous art are increasing. Among those leading the charge is Senator Patricia Bovey, independent Senator from Manitoba and the first and only art historian to sit in the Senate. She served as Director of the Winnipeg Art Gallery (1999-2004) and the Art Gallery of Greater Victoria (1980-1999), has been a professor of Art History, President of the Canadian Art Museum Directors Organization for three years and served on the Board of the National Gallery of Canada. It’s fair to say she knows her stuff, and that she is concerned. While an independent Senator can only do so much in terms of bringing forth legislation, she can encourage, prod and circulate ideas. Among these is the creation of a mechanism or fund to track down companies fabricating Indigenous works or failing to pay royalties. Another would be to strengthen Canada’s “soft border” against trade in fakes. Some of these measures could be addressed by the Copyright Act; others will require legislation in other areas.

As I have written elsewhere, “Can Copyright Law Protect Indigenous Culture? If Not, What is the Answer?”, copyright is not always a perfect fit when it comes to protecting Indigenous Cultural Expression (ICE) which may be more community than individually based and often relies more on stewardship than ownership. But there are still contemporary Indigenous artists who are facing direct consequences now from the growing trade in fakes, facilitated by sales through the internet. Action is needed. A key element is to be able to easily distinguish between real and fake Indigenous art. Lucinda Turner’s idea of making the genuine article free of sales tax would be one transparent way to indicate the difference, allowing law enforcement to take action against fraudulent efforts to pass off non-Indigenous works as genuine as doing so would be a violation of the tax code. Another suggestion is to bring in Canadian legislation that would mirror the US Indian Arts and Crafts Act of 1990 that prohibits the sale, or offer for sale, of any product that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian “tribe”. There are heavy penalties for violation of the law. In 2018 an owner of several Albuquerque, NM, jewellery stores was imprisoned and required to pay over $9000 in restitution for passing off Filipino-made jewellery as authentic Native American art.

However, the legislation is not necessarily a silver bullet. Apart from questions as to who qualifies as “Indian” under the Act (in the case of the US law it is a member of a federally or state recognized Indian tribe or an individual certified as an Indian artisan by a tribe), the law does not deal with “lookalike” art. As long as there is no false claim that the work is an Indian product, the law does not apply. In other words, non-Indian works taking inspiration from Indian designs, but not claiming to be Indian-made, are not targeted by the law. To close this loophole would be difficult because many non-Indigenous artists have drawn inspiration from native designs, eg. Hopi and Navaho geometric patterns. The most effective means may be to ask artists to be respectful of the cultural significance of works they are inspired by, but that still won’t stop mass marketing of cheap look-alikes for tourist consumption, such as totem poles, masks, jewellery, Inuit sculptures and so on.

If certain art forms are restricted to Indigenous practitioners in Canada, the question of who might qualify to produce them could be tricky since the term “Indigenous” includes members of First Nations reserves with status under the Indian Act, non-status people of Indigenous descent, Inuit and Metis, although “qualification” could no doubt be solved by some form of registry. There is also the question of regional origin within the Indigenous community. For example, should an Indigenous person from, say, the northern prairies be able to claim Indigenous status as a producer of Pacific Northwest Coast art?

But the most difficult question is how to handle clones of Indigenous art, such as elaborately and cheaply carved “copies” from places like Indonesia (where there are also master carvers very good at copying the work of others, in some cases commissioned by businesses in North America), and where there is technically no claim that the work is of Indigenous origin. While Indigenous artists in Canada would like to see those copies stopped at the border (training of border guards is another issue), as long as those “copies” are not exact replicas and not marketed as originals, it will be difficult to stop such trade. If fake art is being imported and passed off as the original, whether it is of Indigenous design or not, it should be stopped. However, if the works simply take inspiration from Indigenous, or non-Indigenous designs, as much as I sympathize with the artists of the original works, it is hard to design a law that will target the problem without causing some kind of collateral damage to trade. This is where a mark of authentication could come in handy. False labelling would be grounds for seizure of goods. Also, the threat of heavy fines and seizure of fake goods might provide some deterrence and ensure that imported artwork is clearly identified as such.

There is definitely a problem, although the solutions are not simple. While stopping or discouraging the trade in fakes is important, equally important is letting consumers know what is real and what is not. Price does not always provide the necessary distinction. The creation of an Indigenous Art Registry (that work has already begun) and the establishment of a mark of authenticity or a trademark would help consumers identify the provenance and bona fides of a product they want to buy. If I want to buy the real thing, I don’t mind paying a fair price for the genuine article but I really don’t want to pay a similar price for a knock off made elsewhere. That undermines the entire market.

It looks as if the work of Lucinda Turner will be carried forward by others, including Patricia Bovey. Some changes will likely be addressed through Copyright Act revisions. Others may come about as part of the ongoing Reconciliation efforts with Indigenous communities. Still others may come about as a result of tightening the border against the trade in fakes of all kinds. For example, the new NAFTA trade agreement (aka USMCA/CUSMA) requires that customs officials in Canada, Mexico and the US have “ex officio” powers to stop suspected counterfeit goods. “Ex-officio” means that customs officials can act on their own authority if they suspect that a shipment contains fakes, rather than having to wait for a rights-holder to bring a case. In other words, they can pro-actively interdict traffic in fakes rather than simply being reactive.

This is a complex file that involves Indigenous rights and culture, international trade, copyright and trademark, and consumer protection. This suggests that a coordinated approach across government is needed. Lucinda Turner was a leader in taking up this challenge. Others are following her example. I wish them success.

© Hugh Stephens, 2022. All Rights Reserved.

Last month, I discussed the ephemeral art of US sand sculptor Jim Denevan, noting that the simplest way for Denevan to protect his monumental sand designs (if he wished to), was by photographing them. That is what Denevan has done on occasion, through his son, drone photographer Brighton Denevan, who took the stunning photos of the work Denevan père executed at Chesterman Beach in Tofino, BC, earlier this year. That work was obliterated after 9 days when a king tide came in. But what if Denevan hadn’t photographed the work? Could it still have been protected by copyright given that it was “transitory” and not “fixed”?

Unlike in the US, UK copyright law does not explicitly require fixation or permanence for artistic works (as opposed to literary, dramatic, or musical works, where it is required). A recent case in the UK (Islestarr Holdings Ltd v Aldi Stores Ltd) illustrates the tricky role of fixation when deciding infringement. The case involved a design embossed into cosmetic make-up powder, which had been copied by the alleged infringer. Although the embossed powder compact design disappeared when used (i.e. it was transitory), the court nonetheless ruled that the product was sufficiently fixed even if not “permanent” because the embossed powder was based on a fixed design. As noted in the Kluwer Copyright Blog;

“The decision shows that with artistic copyright (in the UK) the emphasis is on the content conveyed by the work as opposed to the medium on which it is fixed.  Provided the design of the artistic work is recorded in some form, the physical manifestation of the design will, in principle, be entitled to artistic copyright regardless of its permanence.  In the Islestarr decision it was relatively straightforward to establish fixation from earlier design drawings…”,

Jim Denevan’s sand installation took place in Canada which also does not have an explicit requirement for fixation in its copyright law, (other than for content transmitted by telecommunications), unlike the US. However, according to Canadian case law, to be protected a work must be expressed to some extent in some material form, capable of identification and having a more or less permanent endurance. Perhaps the designs Denevan used to create his work were in a tangible form, allowing him to assert copyright based on the designs before they were carved into the sands of Chesterman Beach. But perhaps he simply had the design in his head and executed it without preparing a physical copy. In that case, it would seem that copyright would have to depend on an image (such as a photograph) of the non-permanent object if the work is to be protected.

The question of whether a design qualifies for protection regardless of the permanence of the expression of the design, as in the Islestarr case, is interesting to explore. In Denevan’s view, his instructions on how to assemble a work (such as his “Angle of Repose” sculpture at DesertX 2022), are protectable by copyright. In my discussion with him, he pointed out the case of the American conceptual artist Sol LeWitt. LeWitt was known for myriad variations in drawing lines onto walls. His creation was the set of instructions on how to execute the lines, although each artist—usually his assistants–following these instructions would produce something slightly different each time. In LeWitt’s thinking, the instructions were the copyrightable form; the actual physical manifestation was secondary.

I remember visiting the Art Gallery of Ontario a few years ago when an installation by the Chinese artist Ai Weiwei, titled 90 Tons of Steel, was being set up. The work itself was a collection of straightened rebar taken from schools in Sichuan Province that had been destroyed by the 2008 earthquake. Ai had extracted the steel rods, straightened them, and then assembled them into a ripple pattern resembling a seismic wave. The work was a criticism of the Chinese government and local officials for allowing shoddy construction in schools, resulting in the deaths of many students. As the curator was assembling the work, which as I recall had just arrived from New York, I asked him how he could ensure the design was faithful to Ai’s conception. (Ai was not in Toronto; at the time he was under house arrest in China).

The curator said he was following Ai’s instructions but conceded that the layout in Toronto would inevitably differ in some respects—since the bars were not interlocked in any way– from the display in Indianapolis, or Boston, or wherever the exhibition was going next. Yet no-one would dispute that the work was Ai’s and that it was protected by copyright.  The work was clearly transitory or ephemeral since after its run in Toronto, it would be packed up and shipped to another art museum and be laid out again in a different setting. In effect it was Ai’s design as translated through his instructions that was the heart of the work, and which is presumably protected by copyright, rather than the physical expression of the work wherever it may appear. In similar fashion, recorded verbal instructions for assembly of an artwork could be argued to be protected by copyright even though the resulting work might not be fixed.

While it may seem a stretch to argue that a sand sculpture could be copyrighted if it was the expression of an original, recorded design, this happens in other art forms where an ephemeral or transitory expression can be protected by copyright if the instructions are fixed. Choreography is a good example. There is no question that dance choreography is protectable; there are numerous examples. The form of fixation can be a video recording or photograph, but it can also be through dance notation or textual descriptions. The actual performance, which could itself be protectable through the performers’ rights, is unlikely to be an exact replica of the dance each time it is performed, giving it a transitory nature. Yet it is protectable under copyright, as explained by this article in Dance Magazine.

So, while a photograph by the author (or, in the US, on behalf of the author as a work for hire) is a good way to ensure that a transitory work can be protected by copyright, it is not the only way to accomplish this.

© Hugh Stephens, 2022. All Rights Reserved.

A couple of weeks ago I wrote about the Omegle case, a potentially ground-breaking suit in the US in which an internet platform, Omegle, was denied the use of the Section 230 liability immunity defence by a judge in Oregon. The case involved Omegle’s online meeting platform in which it randomly pairs strangers for dialogue—and often more. In this case it paired an 11 year old girl with a male sexual predator in his thirties. The resulting online abuse went on for several years. Section 230 is part of legislation passed in the US at the dawn of the internet age, the 1996 Communications Decency Act. Section 230 provides internet platforms with immunity from civil liability for user content posted on their services, regardless of whether the platforms are aware of illegal content or not and regardless of whether they exercise any content moderation.

Silicon Valley is a big fan of Section 230, arguing that without it we would not have the internet, or at least the internet would not have developed the way it has. (Some would say the way it has developed is a big part of the problem). Silicon Valley’s mouthpieces, like the Electronic Frontier Foundation (EFF) and academics like Eric Goldman, Professor of Law at Santa Clara University (in the heart of Silicon Valley), love it and promote it. Goldman thinks Canadians should adopt it and set out a five-point primer on why Canada should be so lucky to have Section 230 as part of its corpus of law. (See my response, here).  “Thank You Professor! “Explaining” Section 230 to Canadians”.

Fortunately, Canada has not adopted Section 230 despite the attempt by Silicon Valley and its acolytes to have the US Government negotiate a Section 230 commitment by Canada (and Mexico) in the recent update to NAFTA, aka the USMCA or CUSMA. While some Section 230-like language was included in the USMCA (Article 19.17) it was effectively nullified by a footnote in the Agreement that stated “For greater certainty, a Party may comply with this Article through its laws, regulations, or application of existing legal doctrines as applied through judicial decisions.” As a result, when the CUSMA omnibus legislation was introduced into Parliament to implement Canada’s obligations under the new NAFTA, there was no reference to any legislation required to implement Article 19.17. Why? Because none was required. Simply put, Section 230 does not exist in Canadian law despite whatever language may exist in USMCA/CUSMA because no legislation was passed to implement anything related to Article 19.17. This “primacy of Parliament” principle was recently confirmed by the Supreme Court of Canada (SCC) in an unrelated case, Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association (SOCAN v ESA, 2022).

The issue in the SOCAN/ESA case involved whether the “making available” right, implemented into the Copyright Act in 2012 to ensure Canada’s adherence to the WIPO Internet Treaties (1996), was a new right or simply confirmation that it was already protected. The SCC found that Parliament did not create a new right, notwithstanding treaty language and obligations undertaken by Canada. Meera Nair, in her blog Fair Duty notes that “Canadians should savour a significant theme in this decision—that when examining the intersection of international agreements with domestic law, it is the will of Parliament that matters”. She goes on to quote from the Court’s decision;

“While a treaty can be highly relevant to statutory interpretation, it cannot overwhelm clear legislative intent. The court’s task is to interpret what the legislature (federally and provincially) has enacted and not subordinate this to what the federal executive has agreed to internationally. It is always the domestic statute that governs because “international law cannot be used to support an interpretation that is not permitted by the words of the statute” (para 48, citation omitted).”

Thus, regardless of the wording of Section 19.17 of the CUSMA/USMCA, Section 230 does not exist in Canadian law because no law implementing it has been enacted by Parliament.

A current case before the BC Supreme Court (Guistra v Twitter) further demonstrates this reality. Frank Guistra, a prominent businessman who has also engaged in considerable philanthropy, including with the Clinton Foundation, resides in both British Columbia (BC) and California and has businesses in both. He sued Twitter in BC for refusing to delete defamatory remarks posted by third parties on the platform associating him with the thoroughly discredited and bizarre conspiracy theory related to Clinton and pedophilia, often referred to as “Pizzagate”. Twitter tried to get the case in BC thrown out, arguing that it should be tried in California. The BC Court demurred for a number of reasons, among them the argument that if the case were tried in California, Guistra would have no cause of action because of Section 230. Prominent technology and copyright lawyer Barry Sookman has a full discussion of the case here.

Twitter appealed the BC Court’s decision regarding jurisdiction and lost. While there were several reasons why the British Columbia Supreme Court ruled it had jurisdiction, one of the reasons it gave for rejecting Twitter’s request to transfer the case to California was that this would deny Guistra the opportunity to clear his name–because the case would be summarily dismissed under Section 230. On the contrary, if he has that opportunity in BC it follows that the Section 230 remedy does not apply in Canada. Twitter could use Section 230 to have the case dismissed in a US jurisdiction; not so in Canada.

That will disappoint Eric Goldman, who has argued that Section 230 is the law in Canada (although he added the caveat, “but not really”) and his Canadian counterpart, Michael Geist of the University of Ottawa. During the USMCA/CUSMA negotiations, Prof. Geist suggested that Canada give the US a “win” on this point and signed on to a letter sent to US, Mexican and Canadian trade negotiators by a number of (mostly) US academics urging inclusion of a Section 230 commitment in the Agreement that would bind the Parties.

It is not only Canada that has been the target of the US tech industry’s efforts to lobby the US government to include Section 230 as a trade negotiating objective. The US-Japan Digital Trade Agreement, signed in October 2019  contains similar language (Article 18.2) to that contained in USMCA/CUSMA Article 19.17. However, like that Agreement it also included a “clarifying footnote”, an almost word for word rendition of the caveat Canada used to avoid implementing Section 230 into law. However Japan went one step further and insisted on a side letter to their agreement with the US that said, in part;

“The Parties recognize that there are differences between their respective legal systems governing the liability of interactive computer services suppliers….Moreover, based on a review of information on the operation of Japan’s legal system and discussion between the Parties, the Parties agree that Japan need not change its existing legal system, including laws, regulations, and judicial decisions, governing the liability of interactive computer services suppliers, to comply with Article 18.”

The Japanese want no part of Section 230 either!

Section 230 is also coming under increasing scrutiny in the US, both in Congress and through various reform proposals emanating from think-tanks and elsewhere. Silicon Valley continues to fight tooth and nail to preserve the virtual blanket exemption from civil liability that they were handed back in the infancy of the internet. The Omegle case is one more example of chipping away at the impunity with which platforms have (mis) used Section 230. While the case is not yet concluded, and it is possible that the judge’s decision to dismiss the Section 230 defence offered by Omegle will be reversed on appeal, it is nonetheless one more sign that the days of virtually unrestricted use of a civil liability shield by online interactive computer services (platforms) in the US are coming to an end.

If Section 230 (in its current iteration) is on life support at home in the US, it is not surprising that it is not being embraced by other countries, even though (up to now) US trade negotiators have continued trying to push it on their trading partners. It doesn’t belong in trade agreements, and to date the US Government has been unsuccessful in force feeding it to other countries, including close trading partners such as Canada and Japan. There is a growing awareness around the world that internet intermediaries can and should be held accountable for content on their platforms when they have knowledge of abuse and ignore it, or if the platform and its algorithms is designed to encourage or perpetuate abuse or illegal behaviour. Instead of trying to push Section 230 on to other countries, the US should be moving ahead with Section 230 reform domestically.

© Hugh Stephens 2022. All Rights Reserved.