Month: November 2022

Last month I wrote about the emerging phenomena of AI-generated art through widely available programs such as DALL-E 2, Stable Diffusion and others, and of the threat they pose to artists, designers, photographers and all those who depend on the protection of copyright to earn their livelihood. This also includes musicians and writers. Artificial Intelligence (AI) is now being used to create “sound-alike” music where users can sing in their favourite performer’s voice, and commercial AI programs can be purchased to write marketing copy, and even novels. Allowing the widespread misappropriation of copyrighted content to produce AI-generated products that compete on a commercial basis with the original creation, while at the same time using unauthorized inputs from the original works to help produce the competing product, is a misuse of AI. It is also a counterproductive policy that threatens to undermine the fundamental basis of economically significant cultural industries. Furthermore, it is just plain wrong, stealing the work of creators in a misguided attempt to boost “innovation” and development of AI.

The UK’s Proposed Limitless TDM Exception

This issue is playing out right now in the UK and poses an immediate threat not only to creators and copyright industries in Blighty but globally, given the negative precedent this will set if it becomes law in Britain. The UK government recently unveiled the results of its public consultation on AI and Intellectual Property. Among the more startling recommendations was the proposal on text and data mining. As stated in the discussion paper (Section 58-61).

“The Government has decided to introduce a new copyright and database right exception which allows TDM for any purpose (emphasis added)…Introducing an exception which applies to commercial TDM will bring benefits to a wide range of stakeholders in the UK…The benefits will be reducing the time needed to obtain permission from multiple rights holders and no licence fee to pay…Rights holders will no longer be able to charge for UK licences for TDM and will not be able to contract or opt-out of the exception.”

Frankly, this is nothing short of outrageous. It reeks of the British government’s desperate desire to prove that Brexit was not the colossal mistake it clearly was by trying to out-manoeuvre the EU. This proposal would make the British TDM exception broader and less restrictive than the existing EU law (which allows TDM only for non-commercial research purposes), all in the name of promoting innovation. What it is really doing is trying to steal data mining jobs from other jurisdictions on the backs of creators and copyright industries. If this misguided policy comes into effect, the vibrant British cultural sector will pay the primary price, although respect for copyright will be weakened generally. Not surprisingly, British artists have spoken up. Equity’s Audio Committee wrote to the Minister responsible pointing out the catastrophic effect the exemption could have for UK based performers and their professional work if implemented. As an example, the Committee’s letter stated that any video or sound recording that is publicly available could to be mined for free by third parties, without the consent of the copyright owner, to generate new AI content.

DACS (the Design and Arts Copyright Society) stated that the new TDM exception will “drastically weaken copyright protections for copyright holders in the UK, which supports the livelihoods of workers and businesses across the creative and cultural industries.”  Stressing that it was not opposing the development of AI, DACS noted that licensing copyright-protected works is a vital revenue source for visual artists at all stages of their careers. The UK government’s paper admits that if implemented the new TDM exception will put out of business those who have built business models around data licensing, but apparently that’s not the government’s concern. It’s all about incentivizing AI research, you see, and damn the consequences. While TDM is often undertaken for purposes other than development of AI, the wording of this proposal would allow an exception for any purpose, in other words specifically enabling TDM to feed AI algorithms.

Arts and culture are major economic drivers in most developed economies and the UK is no exception. The creative economy in the UK is a major provider of exports, employs over 2 million people and contributed over £115 billion in 2021 to the British economy, according to the report “Creative Industries: Trade challenges and opportunities post pandemic” prepared for the UK’s Department of International Trade. Are these benefits and these jobs to be sacrificed on the altar of “AI innovation”? It is a remarkably short-sighted proposal and probably contravenes Britain’s international obligations under the Berne Convention and TRIPS[i]. To date, no law has been introduced to give effect to this recommendation and given the current disarray in which the British government finds itself domestically, its implementation will hopefully be delayed, allowing for sober second thought.  

Developments in Canada Regarding TDM

While hopefully this ill-conceived recommendation will be reconsidered, it is a cautionary tale that should be borne in mind by Canada and other states that may be contemplating legislating a TDM copyright exception. (In the US, TDM is governed by fair use under Section 107 of the Copyright Act. While each case is decided on its merits, it is unlikely that a court would make a determination of fair use for unauthorized use of copyrighted material for TDM purposes if a TDM licence was available and/or if the final work produced from the inputs harmed the market for the original work by competing with it commercially). It is all too easy to trample creators’ rights—in the process gutting a thriving industry that contributes immensely to national economic and cultural well-being—in the misguided rush to clamber aboard the AI train. If a TDM exception is considered necessary, it should be narrowly tailored to deal with the specific needs of academic research, while staying consistent with international treaty commitments, and not be used to create a product from text mining that will unfairly compete with the work of the original creator.

In Canada, an update to the Copyright Act is overdue by several years. As part of that process, two Parliamentary Committees were struck in 2019 to review the Act. One of those committees, the INDU Committee, recommended that what it called “Informational Analysis” (TDM by another name) be permitted under the Act, (Recommendation 23), either by adding it to the list of specified fair dealing purposes or by creating a specific exception. A consultation paper on a “Modern Copyright Framework for Artificial Intelligence and the Internet of Things” was released by the Department of Innovation, Science and Economic Development in July of 2021, inviting public comment. TDM was one of the issues raised. No recommendations have as yet come forth as a result of this consultation.

There is pressure from academic circles to circumvent the licensing conditions that many publishers maintain when permitting use of their materials even though publishers often grant rights to use materials for research purposes without charge, or with minimal conditions such as attribution or on the condition that the new product does not create a substitute for the original. In other cases, rights-holders may exercise their right to require a licence fee, which can be an important revenue source in some copyright-related industries, such as publishing. I can understand that from an academic point of view, it may be frustrating to have to contact multiple rights-holders to get permission to use content, or to find that access to some materials is blocked or constrained by licensing requirements. Reasonable arguments can be made that some forms of TDM are necessary for research and innovation, which could include AI. Could these not be restricted solely to public domain materials? Ideally, but not always.

Dr. Lucie Guibault of the law faculty of Dalhousie University (Halifax, NS) has examined the issue of TDM in Canadian law and concludes that it is not currently legal under either the exception for temporary reproduction (Copyright Act, Section 30.71) nor under fair dealing, notwithstanding that it could meet the enumerated purpose of “research”. This is primarily because of the amount of reproduction that takes place—basically all of a work. With respect to the argument that researchers should restrict themselves to public domain works, she points out this is not always practical, referring as an example to the work of academics such as Professor Andrew Piper of McGill University who as part of his research analyzed the plots and popularity of contemporary novels, all of which are copyright protected. (Note, however, that Piper’s work was not to create a database for AI purposes, but rather to analyze a range of works and draw conclusions from that data analysis).

Prof. Guibault’s solution is to introduce a text and data mining exception into Canadian law, along the lines of what has already been done in the EU (restricted to non-commercial research purposes), although she believes that the non-commercial limitation is too restrictive. She bases her argument on the fact that a TDM exception will have no impact on the economic interests of the rights-holder nor in any way affect the normal exploitation of the work. That would suggest a narrow exception and would rule out the kind of data scraping that is producing AI-generated art through DALL-E 2 and other programs. It would also rule out the kind of limitless TDM exception proposed by the British government.

One really important issue to bear in mind when promoting an academic, “non-commercial use” exception is that of data laundering. This occurs when data is collected by a non-commercial entity, such as the German non-profit LAION, which in turn then provides the data to a platform that exploits it commercially. In this case it was LAION that provided the data on which Stability.AI has built its AI-generated art tool Stable Diffusion. The dangers of data laundering are well covered in this article.

As countries come to grips with the need to promote AI research and development, they need to avoid a “race to the bottom” when it comes to shedding protection for copyrighted works. Allowing holus-bolus unauthorized copying and scraping of copyrighted material to feed AI research destroys any market for licensing content while in some cases producing AI-generated works that unfairly compete with the original work of creators. This erodes economic incentives for authors and artists and undermines copyright-based industries that provide substantial employment and contribution to GDP, in addition to nourishing the cultural soul of nations.

AI is here to stay. It is a legitimate research tool and can bring new products and services to market. Creators themselves often use it. In the rush to embrace AI, policy makers must not ignore the critical role that copyright has played for over two centuries in spurring creativity and creating economic and cultural welfare. As technology has developed, copyright has adapted. It has not been thrown under the bus. Respect for copyright must remain one of the cardinal principles taken into account when designing and implementing policies to promote AI.

© Hugh Stephens, 2022. All Rights Reserved.

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[i] TRIPS-Trade Related Intellectual Property Agreement, an agreement among members of the World Trade Organization.

This paper has been updated to add a reference to the Government of Canada discussion paper on Modern Copyright and Artificial Intelligence, and the Internet of Things, published in July 2021.

As Bill C-18, the Online News Act, continues its step-by-step process through the Canadian Parliament, another shoe has dropped. Meta, Facebook’s parent company announced it will be laying off 13 percent of its global workforce (11,000 people) owing to two quarters of losses and a sinking share price. Meta’s valuation is down more than 70 percent so far this year, to levels not seen since 2015. This announcement came just a few days after Facebook executives appeared before the Parliamentary committee (Standing Committee on Canadian Heritage) holding hearings on C-18 to object to the draft legislation because it will require Facebook to negotiate payment with eligible news providers for use of, or facilitation of access to, news content. Their appearance was arranged as a result of the company publicly complaining it had not been invited to testify, notwithstanding the fact it had failed to request an invitation, the normal procedure if a stakeholder has something to say. And Facebook certainly had something to say, given that it is one of two mammoth internet platforms (the other being Google) that are the current intended targets of the legislation.[i]

On a global scale Meta, which owns Facebook, Instagram, WhatsApp and others, is facing a problem common to many companies that become very successful very quickly. Growth is not infinite. As everyone knows, Facebook took an early lead role in the online social networking space and never looked back, gobbling up competitors or putting them out of business. But after almost two decades of success, Facebook’s rose is fading. With the younger demographic, it is no longer the go-to app, with the “cool crowd” migrating to newer platforms like TikTok. History tells us that many companies fail to stay on top, no matter how dominant they are for a time, unless they periodically re-invent themselves. Sticking to the original playbook while the world moves on has negative consequences. Just ask AOL, BlackBerry or BlockBuster. Growth is a heady drug for the market, but unrealistic expectations are often created.

Reinvention and getting ahead of the curve is what Mark Zuckerburg has been trying to do with his bet on the metaverse (the world of virtual reality) without, however, much financial success to date. He may well be on the right track but is a few years ahead of his time. Meanwhile, 11,000 of Meta’s employees are paying the price. This is as an abrupt turnaround in plans. Just a few months ago, Meta was announcing expansion plans in Canada where it was going to hire up to 2500 new staff in Toronto.

All this comes at a time when Facebook is in the sights of various governments because of its market dominance–despite its current challenges–particularly with regard to online advertising. To sell ads, Facebook needs to keep users on the platform. To engage them, you need content. As anyone who uses Facebook knows (and that is most of us—it is pretty hard to avoid) much of the content is provided by the users themselves in the form of posts, photos, and videos. Users also add news items to discussion threads, through articles, snippets and links. The posted news content is often expensively and laboriously produced by media outlets who are in competition with Facebook for ad revenues, yet Facebook and other social media platforms have managed to corner most of the ad market while producing almost no original content of their own. In other words, part of the intermediaries’ product offering is based on freeriding and monetizing the content of others, the “others” being struggling news media whose main source of revenue has gone to the platforms because of the latter’s ability to micro-target users through tracking their online habits. Is this fair? Is this legal?

From the perspective of copyright law, in most cases it is almost certainly legal insofar as snippets or links to news content are concerned. The limited amount of content actually displayed on the platform normally meets the threshold of fair dealing, or fair use in the US. However, infringement of copyright is not the issue. It is market dominance. In other words, it is a competition rather than a copyright issue. Canada is not the only country trying to get its arms around this. Australia has done so, through legislating its News Media Bargaining Code. The US is looking at the issue. The US Copyright Office conducted a review of US copyright law to determine if changes were needed to allow news publishers to better protect their content. The Office recognized that adequate funding for journalism may be at risk but concluded that the “press publishers have significant protections under existing law and…the challenges of funding journalism in the internet era do not appear to be copyright-specific”. In other words, look to other remedies, like competition law, which is the approach taken by Australia and Canada.

Bill C-18, the Online News Act, is following Australia’s example, with some minor tweaks, to require large digital intermediaries (Google and Facebook for starters) to negotiate financial compensation with news content providers for use of news content to attract users. This is not because the platforms are infringing on the copyright of news providers but because of significant market imbalance that is putting in jeopardy the viability of professional media. Governments have recognized that without a professional media, the field is open for misinformation, conspiracy theories, manipulation of the news and other threats to an informed citizenry, a key element of democracy.  But when Australia brought in its legislation, Facebook, in a clumsy move that spectacularly backfired, (“Facebook in Australia: READY, FIRE, AIM”) shut down all news feeds on its platform, including sites that provided public safety information, access to health services, etc. Under a torrent of criticism, it climbed down from this position and was suddenly able to find a way to reach content deals with Australian media, thus avoiding being designated under the Code. (The Australian government also agreed to minor concessions such as giving digital platforms one month’s notice before they would be formally designated, which Facebook claimed as a victory). The platform is now threatening to play a similar game of chicken in Canada.

In his appearance before the Parliamentary Committee studying the Bill, Facebook Canada’s head of public policy Kevin Chan commented that if the Bill was passed in its current form, Facebook “may be forced to consider whether to allow sharing of news content on Facebook in Canada”. If that is not a threat, I don’t know what is. That threat led to an op-ed from Australian commentator Emma McDonald,
“Big Tech will threaten, but Canada doesn’t have to listen”. One of the members of the Committee, Liberal MP Anthony Housefather, wrote in another op-ed;

“Whistleblowers have told us that Facebook deliberately caused havoc in Australia in the hopes of intimidating its people and legislators into making the changes it wanted. It blocked fire and rescue services’ pages during wildfire season. Suicide prevention support. Domestic violence services. Kids’ cancer charities. Children’s hospitals. The list goes on and on. The majority of pages were restored only a week later, after the Australian Senate had adopted a bill that included amendments demanded by Facebook.”

In his testimony Chan claimed that Facebook provides hundreds of millions of dollars of free advertising for news publishers by carrying links to their content. From his perspective, Facebook doesn’t benefit from having the content on its platform; it “helps” media. He claimed that the legislation would force Meta to pay for links posted to the platform by the publishers themselves, exposing the platform to open ended financial liability. Let’s be kind and just say this is hyperbole. It is perfectly true that the publishers derive some benefit from exposure on Facebook which explains why they will at times post their own articles to the platform. Will Facebook have to compensate a publisher each time it promotes its own content on Facebook? The legislation says nothing of the kind.

What C-18 will do is to require negotiation of fair compensation for use of news content or providing access to news content. As I wrote in an earlier blog, a version of which also appeared as an op-ed in the National Post;

“The platforms argue that they should not be required to pay news publishers when they themselves have posted the link. The answer comes in the wording of the legislation requiring “fair compensation.” Fair compensation negotiations will take into account the benefit that news publishers gain by posting links to the platforms. That benefit will be offset against the greater benefit the platforms gain by using news content to attract viewers and advertisers. That trade-off will normally be worked out during bilateral negotiations between the publishers and the platforms, with the government stepping in only if there is a failure to reach agreement”

While links are not mentioned in the Bill, facilitation of access to content “by any means” is. This includes links, which will be factored into the negotiation of compensation (a) either “voluntarily” or (b) as part of mandated arbitration. This is how the legislation will redress the imbalance in the online advertising market built on the back of uncompensated content. Meanwhile, Facebook will huff and puff and threaten to block news content on its platform in Canada.

It would be self-defeating for the platform to do so. It is in enough trouble without damaging one of the key attributes it employs to attract users; providing an essential channel for the exchange of information. It may be engaged in broad cost-cutting, and understandably does not want to give up any more of its revenues than it has to (estimates of the annual amount that would accrue to news media from internet intermediaries is in the range of CAD$300 million), but Facebook is not about to shut down news feeds in Canada. That would be a self-inflicted wound that would hasten its own demise by undermining its relevancy for users.

Facebook will continue to oppose the Canadian legislation, just as it did in Australia, because it knows that other governments are watching. That is part of the price of being the big dog on the block. At the same time, it is having to grapple with its own competitiveness issues–although Meta is a long way from being counted out. Watching how these two intersecting issues play out will be an interesting exercise.

© Hugh Stephens, 2022. All Rights Reserved.

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[i] Neither platform, called a “Digital News Intermediary” (DNI) in the legislation, is named. Rather, DNI’s are required to self-identify based on a number of criteria if there is a significant bargaining power imbalance between them and news businesses, having regard to the following factors:

(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.

If a platform does not do so, and if so requested, it must provide the CRTC with sufficient information for the Commission to determine if a given internet intermediary is exempt from being categorized as a DNI.

This blog post, coming at the time of Remembrance (Poppy) Day, November 11, reflects on the enormous, beneficial attributes of the internet—when used for positive ends—but also on the costs of personal sacrifice embodied in the Remembrance Day ceremonies. It is the story of how I was able to pull back the curtains of time to learn more about a relative I had heard of only vaguely many years ago, my mother’s cousin (my first cousin, once removed), Geoffrey Boisselier Davies. It is also a story about how digital tools created by entrepreneurial web-based companies can help us unlock the secrets of the past.

The internet has changed our lives in many ways, for the better and for the worse. It has enabled online harassment and revenge porn but has also been the means by which people have connected, reconnected and fallen in love. It has provided the means for artists and creators to reach audiences they could only dream of pre-internet, but it has also been disastrous to many creators by enabling rampant digital piracy. It has extended the reach of medicine and education and expanded access to knowledge, but has also allowed the invasion of privacy, manipulation of emotions and the spread of misinformation through self-reinforcing algorithms. I have been as critical as any of the failings of the internet in terms of promoting abuse, but we also need to recognize its strong points and many contributions. Perhaps the answer to the misuses to which the internet has been put is providing sufficient oversight and responsible regulation where needed, while encouraging its strong points.

One area where the internet has been a game-changer is searching for ancestral family information. A whole eco-system serving this need has sprung up, dominated by Ancestry.com, a company with a number of spin-offs (Archives.com, which focuses on local history and census data; FindaGrave.com (self-explanatory), Newspapers.com, which contains over 20,000 digitized titles, WeRemember.com, online memorials, Genealogy.com, based on vital statistics, and some others that have changed over the years such as MyFamily.com and RootsWeb.com, both related to family trees. Ancestry is not the only game in town, with competitors such as MyHeritage.com and FamilyTreeDNA.com. Quite apart from these commercial services, there is a plethora of digitized information available through various websites, archives, and other public record offices that can be accessed directly.

In undertaking genealogical research, copyright issues will sometimes arise. You need to be careful if you publish the contents of copyright protected documents. Personal letters are almost always covered by copyright unless they were openly published or written so long ago that they are now in the public domain. The most recent example of this is the case brought by the Duchess of Sussex, Meghan Markle, against the Mail on Sunday, a British tabloid that published her personal letter to her father. The copyright on a letter belongs to the author of the document, not the recipient. Therefore, when publishing family research involving personal letters, care must be exercised. Obituaries are also subject to copyright protection as I pointed out in a blog posting I wrote a couple of years ago, “Obituary Piracy Punished: Has Infringement No Bounds?”

Even services like Ancestry.com have to deal with copyright issues. They catalogue vast amounts of publicly accessible information, plus they provide a platform for users to contribute their own information. In a recent case, Ancestry moved to dismiss a class action lawsuit brought against it for allegedly misappropriating information and photographs drawn from class yearbooks. Ancestry’s defence rested partly on the argument that material appearing in yearbooks is not private and is widely available, including in libraries. As for material that has been contributed by users, Ancestry declines to accept responsibility. Its copyright statement indicates that;

“Content which has been contributed to public areas of Ancestry sites listed above by users remains the property of the submitter or the original creator and we are a licensed distributor of such content. Occasionally, a person may feel that content submitted by another user is their property, or is covered by the copyright of someone other than the submitter. Please remember that we are only the distributor of user supplied content and the submitter, not Ancestry, is the one who has violated copyright if such a violation has occurred.”

While copyright guidelines need to be kept in mind when searching public databases and when using services such as Ancestry.com and MyHeritage.com, both of which work on a subscription basis, many people have harnessed the power of the internet to research their family histories and have located documents leading to family discoveries that would have been impossible to access in a pre-internet era. I am no exception. Here is my personal story of discovery as a testament to the enormous power of the internet if harnessed for useful rather than destructive purposes. It is a story of discovery and finding information that was hiding in plain sight. It is also my way of highlighting the positive outcomes that the internet can provide.

Geoffrey Boisselier Davies

Recently, going through some old family papers, I came across a letter from the late 1980s written by my aunt, my mother’s sister. She was recollecting at my behest what she remembered of family history to try to help me to assemble a family tree, a project I had embarked on at that time. Her letter mentioned a Geoffrey Rees-Davies as she called him, who was the son of my grandmother’s sister, and thus a cousin to both my mother and my aunt. My aunt had written that her aunt and uncle had a son, Geoffrey, who had gone to Cambridge University to study (“read”) law. She said that when the First World War broke out he rushed off to volunteer and, like so many young men, was killed in the First Battle of the Somme (1916). She continues;

“When (Geoffrey’s father) Hughes Rees-Davies died he left most of his money in trust for a bursary or scholarship to Selwyn College, Cambridge. I don’t know if it was actually named after Geoffrey…Also, Geoffrey’s portrait and medals were handed over…I can also remember that painting lit up with the medals laid out in a glass case below…The next time you are over in England maybe you should visit Cambridge and see the portrait”.

I did not do so, even though I have been to Cambridge several time since. Frankly, I forgot about it until recently re-reading the letter. I was intrigued and wanted to find out more–about the painting, the scholarship and Geoffrey himself. What if there was a memorial to him at Selwyn College, Cambridge? Had he completed his studies? What did he look like? Etc.

So, I wrote to Selwyn and was put in touch with their very competent and dedicated archivist Elizabeth Stratton. Her initial reply was disappointing;

“…I can’t find any details for a Geoffrey Rees-Davies attending Selwyn and he’s not on the list of those who died in the First World War or included in any of the lists of College pictures. I didn’t recognise his name when I first read your enquiry but wondered if I had overlooked him. But by coincidence, there was a Geoffrey Boisselier Davies who came in 1912 and was killed in 1915 and so a year earlier than the other Geoffrey.”

Oh well, I thought. It was worth a shot. I did have a bit more information that I sent her regarding the fact that the family had lived in Eastbourne on the south coast, which prompted another response a few days later;

“Your latest information about the connection with Eastbourne was very helpful and I have now been able to do some more searching on the family history site, Ancestry and more importantly have solved the mystery (well at least part of it)! I have finally found the details for the family and it seems that there was a slight mistake with their surname. (It) was actually…Reid Davies”

She found Geoffrey’s father, Dr. Hughes Reid Davies by searching the English 1911 census documents online. It mentioned he had 2 children, one of whom was Geoffrey’s sister. He was not named (maybe because he had left home by then) but Ms. Stratton then went back to digitized baptismal records and searched for any Geoffrey’s born in London before 1900. She found a Geoffrey Banister Davies recorded but when she clicked through to the actual record, it became apparent that the handwriting was blurred, and the name could have been Boisselier. She then checked the information she had on Geoffrey Boisselier Davies and found a copy of his obituary mentioning his father, Dr. HR Davies!

Ms. Stratton continued;

“So I can confirm that Geoffrey Boisselier Davies, as that seems to be the name of your ancestor after all, came to Selwyn in 1912 and was in both the 1914 College football and cricket teams; he was then Captain of the Essex Regiment and sadly was killed in action on the 26th September 1915 rather than 1916”.

With this information in hand, I promptly googled Geoffrey Boisselier Davies and was surprised to find several entries, including one from Wikipedia. It turns out that Geoffrey was an amazing young cricketer who may have one day played for England had he not been killed at the Battle of Loos. ESPN’s Cricket Information page records that he hit 1487 runs in 90 innings and took 141 wickets during his brief first-class playing career (1912-14). He was a right-handed batsman and bowled “Leg-break, Right-arm slow-medium”. His last match was for Essex against Somerset on August 31, 1914, almost a month after the war had broken out. In that game, he scored 118 and took 4 wickets for 18 runs. Cricket record keeping is pretty impressive! (It has that in common with baseball, among other similarities). A bit more digging turned up a book published in 2015 entitled “Final Wicket: Test and First Class Cricketers Killed in the Great War”, by Nigel McCrery, a sad litany recounting the fate of literally hundreds of young athletes gunned down on the killing fields in France. Geoffrey’s image features on centre of the front cover.

But that’s not all I found on the internet. Because he was an officer in the Essex Regiment, he features on several websites that document regimental history, and on Facebook. The account of his final day, September 26, 1915, makes chilling reading;

“The Essex men were ordered forward at about mid-day, advancing in the direction of Stutzpunkt 3 from which both shell and machine gun fire began hitting the ranks as they crossed the Lens-La Bassée Road. Part of the Battalion suffered heavy casualties and was forced to take shelter in the outskirts of the village. The remainder of the Battalion went on towards Stutzpunkt 4 but was held up by the uncut German wire. There was little shelter and casualties began to mount until the order was heard to retire. Small parties fell back the way they had come but suffered further casualties as the Germans continued to pour fire into them from Hulluch.

A German officer of the 26th Regiment who were opposing the Essex that day wrote: -“The Battalion Staff was on the left flank…whence we had a wonderful view. The English attacked in whole hosts and with great dash. Our men fired standing up as fast as they could pull their triggers. No Englishmen got through the wire entanglement, and the ground in front was covered with bodies.”

The Battalion were to lose 18 Officers and 353 men that day including Geoffrey and their Commanding Officer. Twelve attacking battalions suffered 8,000 casualties out of 10,000 men in four hours. What a waste of human life. What a waste of youthful potential. Geoffrey had just completed his degree and had been admitted to the Middle Temple to qualify as a barrister. How many of the other almost 375 men from that one regiment on that one day in 1915 could have gone on to do great things, or at least lead normal lives. It is truly shocking to think of the pain so many families endured as their sons, brothers, and fathers were sent to the sausage machine.

I learned all this information with just a few strokes of the keyboard, once the mystery of identifying Geoffrey was solved by Ms. Stratton through her archival sleuthing. I was even able to find a headstone in Ocklynge Cemetery, Eastbourne of his sister Vera (who died in the Spanish flu epidemic of 1919) in which Geoffrey is also memorialized, through FindaGrave.com. The photo was added by a photo volunteer only in 2019. However, Geoffrey’s remains are not in Eastbourne as, along with many others, they were never recovered from the battlefield. His name is inscribed on the Loos Memorial, Panel 85-87, which commemorates 20,000 British soldiers who have no known grave, according to the Commonwealth War Graves Commission.

But what of the scholarship to Selwyn and the portrait? Ms. Stratton came through yet again, managing to locate a copy of the last will and testament of Dr. HR Davies, in which he bequeathed his estate to Rossall School, which Geoffrey had attended before going up to Cambridge. That document made it clear that the scholarship was not designated for a student at Selwyn College but rather for a student at Rossall in financial need, preferably one who was a sportsman, to attend Selwyn. The portrait of Geoffrey, painted posthumously, was also apparently given to Rossall School at that time.

The next stop was, of course, Rossall School, which is a noted “public” (i.e. private) school in Lancashire. I immediately corresponded with the School’s archivist. I would like to tell you that an illuminated portrait of Geoffrey, with his medals, still graces one of the “Hogwart’s” like halls at Rossall, and that the scholarship is still being awarded. Sadly, that is not the case. To date, Rossall School is not able to locate any reference to either the portrait or the scholarship. That is fully understandable as this all happened going on a century ago, but I had hoped that perhaps Geoffrey’s memory had endured at Rossall. That may not be the case, but it has endured on the internet, which to me is perhaps even more remarkable. With the right tools and the right knowledge, the amount of family information that can be located with just a few keystrokes is really quite amazing.

I am still hoping that I might be able to track down the elusive painting and medals as there is a portrait of Geoffrey on the internet (it’s not a very good likeness judging by the photos I have of him both in sports gear and military uniform, so I am assuming it is the posthumous portrait painting). It is attributed to the Essex Regiment Family History Facebook page so perhaps it is hanging in an officers’ mess somewhere.

Geoffrey Boisselier Davies was hiding in plain sight on the internet. Back in 1988, when I first got my aunt’s letter I could never have dug out all this information, photos, and records. Some people have made a very successful business out of retrieving family information, others contribute research as a hobby related to their interest in sports, or history, or just like trudging around cemeteries. This collectivity of knowledge is now widely available. My personal search has taken me from just a name in a letter to staring into the eyes of a young man who, like so many others, gave his life for his country, bringing both pride and grief to his parents. It is just one story, among many, of the lives cut short that we remember on November 11, and of the pain of parents who saw their hopes and dreams for the future evaporate as their children predeceased them.

I would like to extend my thanks to Elizabeth Stratton, Archivist at Selwyn College and Richard McDowell, Archivist at Rossall School for their kind assistance.

© Hugh Stephens, 2022. All Rights Reserved

As a postscript to the penultimate paragraph above, regarding the origin of the portrait of Geoffrey Davies posted on the Essex Regiment’s Family History site, I have been informed that it was taken from the Role of Honour page in the illustrated London daily, The Sphere, dated November 27, 1915. I found that page through the British Newspaper Archive (here). It appears to be a sketch based on a photo. So, I guess the mystery of the missing posthumous portrait remains unsolved.

As far as grovelling, abject apologies go, this one would win an Oscar. The author was not just “deeply sorry”, she was devastatingly contrite, spelling out in detail how her organization’s newsletter had used language that she described as “denigrating, racist and very harmful”. She admitted the newsletter had caused harm and pain and pledged that the organization (Art Canada Institute) would do better in future, and is committed to deepening its own learning and engaging more closely with artists to improve the Institute’s understanding of their work. What was the heinous action of the Institute that prompted this full-throated mea culpa? The newsletter had linked the work of several artists who express their work through costumes to Hallowe’en!

Just in case you didn’t know, Hallowe’en is no longer an activity just for the fun and delight of children who go Trick or Treating in costumes. It has been hijacked by adults who either dress up at the door when handing out the goodies, or stand costumed behind their little offspring or, as happens frequently, dress up to go parties, sometimes roaming the streets and causing trouble. Some of the costumes worn, usually by adults, are considered inappropriate by today’s standards. (Just ask Prime Minister Justin Trudeau who was famously outed by Time Magazine for wearing a blackface and turban costume back in his youthful days before politics). Just in case you aren’t sure what is inappropriate these days, Good Housekeeping has a list of the 15 most offensive costumes (with examples!). Universities regularly publish guidance for students, (who are supposed to act like adults, and unfortunately often do) hoping they will think twice before dressing up in ways that could be considered offensive by some groups or in costumes that might be considered cultural appropriation. This stating of the obvious by colleges drives some people crazy, complaining that “woke” institutions have no business telling students what or what not to wear off campus. Let’s just say that in the political and social environment in which we currently live, which can variously be described as “acutely attuned to longstanding issues of social justice” or “political correctness taken to extremes”, Hallowe’en is no longer what it used to be. Associating an artist’s work with it can lead to grief, as the Art Canada Institute found out.

According to the apology, which I received by email but which doesn’t appear to be up on the Art Canada website (nor is the offending newsletter);

 “Hallowe’en (is) a holiday that has, both historically and in the present, often led to costumes that are racist, bigoted and cruel in their representation of people who experience intense and systemic discrimination. (It is) also associated with commercialism and triviality…”

Of course, as soon as I received the apology, it sent me scrambling to find the offending material. In what was obviously a light-hearted attempt to leverage the theme of Hallowe’en, the Institute’s October 28 newsletter opened with “As Hallowe’en approaches, we’re looking at how artists in Canada have used the transformative power of costume to trick the eye and treat the mind”.

“For artists, costumes can be constant in their creativity, not limited to October 31. In the works below (eleven artists were featured, 9 of them still living) we share how dress up plays a quintessential role in inspired expressions, the presentation of alter ego, and the realization of parallel universes in which artists provide audiences with both playful absurdities and well as subversive comments on bigotry and oppression…Through the power of costume, lines are blurred between perception and reality and we are presented with new worlds, meaning and possibilities”.

None of that sounds racist, denigrating or harmful to me, but I guess perception is in the eye of the beholder. The two artists no longer in the land of the living, one of them a 19^th century photographer, clearly didn’t object, but some or all of the remaining nine artists must have. The images of the works presented were all used with permission, but it appears that none of the artists was involved with the write ups. The descriptions of the sometimes “edgy” works were whimsical but factual, and in all cases there was a link to further information, either the artist’s own website or a scholarly work. The real problem appears to have been the linkage with Hallowe’en, which some likely found offensive for reasons stated above, or because it appeared to trivialize the role of their costume-related art by associating it with the annual dress up extravaganza. It’s all rather unfortunate and unpleasant for those concerned, especially for Sara Angel, Founder, Executive Director and Publisher of the Art Canada Institute. She is herself a well-known art historian and parent to three teenagers (according to her bio)—which may have led to her not looking at Hallowe’en through the same lens as some others. (My speculation).

What the artists were doing, from a copyright perspective, was asserting their moral rights. They retain those rights even if the economic rights have been transferred. Of the three moral rights, (outlined in Canadian Copyright Law by Lesley Ellen Harris), paternity (right to claim authorship), integrity (right to prevent a distortion, mutilation or other modification of the work to the prejudice of the honour or reputation of the author), and association (right to prevent use of a work in association with a product, service, cause or institution), the latter two would seem to be relevant. In this instance, of course, there was no lawsuit alleging a violation of the artists’ moral rights; instead there was a complaint, a discussion and an apology. The most famous legal example of the exercise of moral rights in Canada is the case of artist Michael Snow’s flying geese at the Eaton Centre back in the 1980’s, as I wrote about here.

The “Hallowe’en hook” that the Art Canada Institute used to grab readers’ attention is understandable as it is common practice to use contemporary events to highlight issues to generate interest. On the theme of Hallowe’en, an informative and fun blog was written a few days ago on the “Copyrightability of Jack O’Lanterns” by Sidney Blitman for the Copyright Alliance. In case you’re wondering, whether a carved pumpkin qualifies all comes down to a couple of things; whether the carving is truly original (there are only so many ways to carve a pumpkin, which might engage the “merger doctrine”, which applies when an idea can only be expressed in a limited number of ways, thus denying copyright protection), or “fixation”, which is required under US law. A pumpkin won’t last forever, and it can be asked whether the artistic work carved into the surface of a slowly decaying vegetable (or is it a fruit?) qualifies as fixation. However, as I have written in earlier blog posts (“My Fixation with Fixation”) and (“Copyright Protection for Transitory or Ephemeral Works: Going Beyond the Photographic Record”), a recorded design might be sufficient to establish copyright even if the object no longer exists (like a sand design or, yes, an originally carved and designed pumpkin that has soggily lapsed into a state of mould).

I am sure that the intention of the Art Institute Canada in making reference to Hallowe’en in its October 28 newsletter was to tweak the interest of readers in art linked to costumes by referencing an upcoming event that affects many families. However, the law of unintended consequences kicked in big time, resulting in an abject apology appearing the same day, within hours, when at least some of the artists exercised their moral rights by objecting to the context in which their work was portrayed. While I generally try to avoid Hallowe’en and Hallowe’en parties, in future I will certainly be more conscious of the minefield one potentially walks into when even thinking about a Hallowe’en costume.

The most positive spin one can perhaps put on this is to consider it a “learning moment”. I hope everyone has learned that Hallowe’en is no longer just a fun evening for the kids.

© Hugh Stephens, 2022. All Rights Reserved.