Month: August 2023

On August 3, almost 30 organizations,[i] representing 50,000 Canadian writers, visual artists and publishers released an open letter to newly appointed Heritage Minister Pascale St. Onge urging her to tackle “meaningful copyright reform”. That is the code-word for the need to end the current free-riding by the education sector–elementary, secondary and post-secondary–in Canada (outside Québec) on the works of Canada’s authors, artists and publishers, a situation exacerbated if not created by the addition in 2012 of a broad limitation on copyright protection for the purposes of “education”. The result has been nothing less than catastrophic for Canada’s creators and educational publishers, resulting in a massive transfer of value from creators of original content to educational providers, who have used the education fair dealing exception to cease licensing most content used for teaching purposes. I highlighted this problem in a recent Globe editorial (“Why We Need Copyright Reform Now”) and in my just-released book, “In Defence of Copyright”. Québec is the one part of Canada that still respects the value of content produced by authors, Québecois, Canadian and others, and its educational institutions have continued to license content from the copyright collective that serves the Québec market, Copibec. Not so in the rest of Canada.

As I noted in the Globe and Mail, the perhaps well-intentioned but misguided addition of the broad category of “education” to the list of specified fair dealing exceptions to copyright in back at the time of the last revision of the Copyright Act in 2012 opened the door to wide-scale unlicensed copying of hard copy and digital content by schools and post-secondary institutions, eager to pocket savings at the expense of creators. Students, who the institutions argue are the beneficiaries of this arrangement, have only seen their fees increase over this period.  Despite a decade of litigation, the situation is still not clear. The result is not only a drastic decline in revenues for authors, revenues that one would expect would accrue to them if their work is being used as part of the educational process, but also a significant decline in production of Canadian works and texts.

There is, however, a relatively straightforward solution, one proposed by the Parliamentary Standing Committee on Canadian Heritage (Recommendation 18). That is to disallow fair dealing under the “education” rubrique for education institutions and ministries when commercially licensed alternatives are available in the market. This modification will preserve the right of students to freely access materials for study and research while protecting the output of authors and publishers, ending the free ride by educational institutions. By the way, this will not give the publishers carte blanche to set prices. When content licensing is conducted through a copyright collective organization, if there is disagreement with users over the amount of copying taking place (and thus the amounts of compensation that should be paid for a copyright licence), the Copyright Board of Canada steps in to adjudicate and determine a fair rate or tariff per student per year at various levels of the educational establishment.

The Trudeau government made a commitment in recent mandate letters to ministers to amend the Copyright Act “to further protect artists, creators and copyright holders”. Those instructions were in the mandate letters of Industry minister François-Philippe Champagne and previous Heritage minister Pablo Rodriguez. A new mandate letter for Minister St. Onge has not yet been released. While she has yet to receive her marching orders, given St. Onge’s previous background, one can assume she is likely sympathetic to creators’ concerns. Before entering politics in 2021 she was Secretary General then President of the Fédération nationale des communications et de la culture. According to her official bio,

“she worked to address the challenges facing the media, newspapers, and the cultural sector. In this role, she oversaw expert studies aimed at developing public policies, participated in the creation and adoption of programs to support the print media, and contributed to the implementation of policies and programs designed to help the media and cultural sectors adapt to shifts brought about by digital platforms.”

This seems like a solid background for a Minister of Canadian Heritage. However, in Canada the lead minister responsible for the Copyright Act is the Minister of Industry, Science and Economic Development, Mr. Champagne. Both ministers and ministries need to act, and act now. The cri de coeur from the cultural industries and from Canada’s writers, artists and publishers can no longer be ignored.

© Hugh Stephens, 2023. All Rights Reserved.

---

[i] (Access Copyright, Association of Book Publishers of BC (Books BC), Association of Canadian Publishers, Association of Manitoba Book Publishers, Book Publishers Association of Alberta, Canadian Artists’ Representation (CARFAC), Canadian Authors Association, Canadian Publishers’ Council, Canadian Society of Children’s Authors, Illustrators and Performers (CANSCAIP), Coalition for the Diversity of Cultural Expressions, Copibec, Copyright Visual Artists – CARCC, League of Canadian Poets, Literary Press Group of Canada, Manitoba Writers’ Guild, News Media Canada, Playwrights Guild of Canada, Regroupement des artistes en arts visuels du Québec (RAAV), Saskatchewan Writers’ Guild, SaskBooks, The Writers’ Union of Canada, Union des écrivaines et des écrivains québécois (UNEQ), WritersNL, Writers’ Federation of New Brunswick and Writers’ Guild of Alberta)

In Defence of Copyright is available at leading local bookstores (if in Canada enter your postal code here) and online through Indigo, McNally Robinson and Amazon.

The platform for exchange of ideas and expression provided by the internet is, as I think everyone today now knows, a two-edged sword. It can empower thinkers and promote freedom, but it can also provide a platform for anonymous spewers of hatred and misinformation in all its forms. The question of who is responsible for managing this powerful tool, and the role of governments in ensuring responsible management, is at the heart of online safety (aka online harms) legislation in various countries. Australia and the EU have taken the lead. Australia passed an Online Safety Act in 2021, targeting cyber-bullying, image-based abuse and promotion of terrorism. The EU has enacted a Digital Services Act, which is slated to come into effect in early 2024. The UK is grappling with a draft Online Safety Act. In the US, regulatory efforts are lagging although a Kids Online Safety Act is currently under consideration in Congress but it only relates to a limited number of harms aimed at minors.

In Canada, a first effort which was presented for public consultation in 2021 was pulled back in the face of widespread criticism that it was too broad and would stifle free speech. If the internet is a two-edged sword, so is the idea of regulating speech on the internet. Most responsible people recognize that some limits are necessary, but equally there is concern about where the line is to be drawn, and who gets to make those decisions. When does combatting harmful speech (harmful speech can be both lawful or unlawful) cross over into censorship? While decisions over what to proscribe and what to allow, even if hurtful or damaging to some individuals, is complex and controversial, the situation becomes even more complicated and difficult to combat when state actors misuse the internet to advance their own political agendas. As the Canadian consultation document on Online Harms noted,

“Online platforms are increasingly central to participation in democratic, cultural and public life. However, such platforms can also be used to threaten and intimidate Canadians and to promote views that target communities, put people’s safety at risk, and undermine Canada’s social cohesion or democracy.”

This problem was highlighted in this year’s annual report of PEN Canada, “Digital Transnational Repression”. PEN Canada, for those of you who don’t know, is the Canadian chapter of  PEN International, the London-based organization dating back to 1921 that advocates for freedom of expression for writers and journalists globally. The report highlights the cases of four expatriated women who now live in Canada, from Iran, Turkey and China.

Farah (not her real name) was a university student in Iran who was arrested and prosecuted by the Iranian authorities for human rights activities before she sought exile in Canada. Maryam Shafpour, also from Iran, was a human rights activist and blogger who spent two years in prison on charges of anti-regime propaganda, who came to Canada after her release. Arzu Yildiz was a court reporter in Turkey (aka Turkiye) who fled after an arrest warrant was issued alleging terrorist propaganda because of her social media postings about torture of suspects arrested after an aborted coup in 2015. She eventually sought refugee status in Canada. Sheng Xue left China after the 1989 TianAnMen Incident and has lived in Canada since then. She is active in leading human rights activities in support of dissident and minority groups in China. What all these women have in common is that they have been targets of digital transnational repression, in other words they have been victims of online harassment and threats perpetrated, directly or indirectly, by state actors.

According to PEN Canada, Farah has been the target of smear campaigns on social media, including false allegations regarding her sexual behaviour and fabricated videos and photos intended to defame and harm her reputation. Maryam has also been attacked with posts and videos telling fabricated stories about her sexual, financial and political activities. Attempts to ruin reputation and credibility seem to be a prime aim of many misinformation campaigns. Arzu, labelled a terrorist by the Turkish government, wants the opportunity to clear her name in a Canadian court. Sheng Xue has also been the target of online campaigns to try to destroy her reputation. In the pre-internet era, the threats were by phone or mail. Abuse is conducted through Groups on WeChat, China’s most popular social media platform. Fake photos have been posted on Twitter. WeChat has been in the news in Canada lately as a result of a report from Global Affairs Canada that Conservative MP Michael Chong was the target of a concerted campaign on WeChat to discredit him during a recent by-election in May. The Global Affairs report stated that;

“Between May 4 and 13, 2023, a coordinated network of WeChat’s news accounts featured, shared and amplified a large volume of false or misleading narratives about Mr. Chong. Most of the activity was targeted at spreading false narratives about his identity, including commentary and claims about his background, political stances and family’s heritage.”

The report noted that it could not be proven unequivocally that China ordered and directed the operation while indicating that China’s role in the information operation is “highly probable”. It also stated that the false narratives violated WeChat’s user code of conduct but there was no indication the platform had applied its own content moderation standards. This is not a surprise. To get WeChat to call out a Chinese government or United Front covert activity on social media is about as likely as Donald Trump admitting that he lost the 2020 Presidential election.

Research on the forms of digital transnational repression reported on by PEN Canada has been led by the University of Toronto’s Citizen Lab, an interdisciplinary “laboratory” focussed on research related to information and communication technologies, human rights, and global security. While NGOs like the Citizen Lab can call out abusive behaviour by non-state and state actors, victims have very limited recourse. Attempts by the four women featured in the PEN Canada report to have the authorities take action inevitably ended nowhere. Where does one turn? Local police forces are basically not interested, or do not have the resources or knowledge to do anything. Inaction is justified on the basis of protecting freedom of expression. Security and intelligence services are not much better at providing support, if you can even get them interested.  It takes a victim with the profile of Mr. Chong (who was the target of Chinese political interference during the last general election, leading to the recent expulsion of a Chinese diplomat) to get anyone’s attention. The laws of Canada, and most democratic countries, are not fit for purpose when it comes to combatting online harms and hate speech, let alone personal attacks and misinformation directed at individuals whom the overseas regime wishes to silence or discredit.

Will Canada’s eventual Online Harms legislation deal with this problem? Platforms already can be compelled to remove defamatory content if they have knowledge that the content meets the legal definition of defamation, as Google recently found out when it was fined $500,000 by a Quebec court for refusing to remove listings about a person wrongfully accused of pedophilia. Google had argued that language in the new NAFTA Agreement, the USMCA/CUSMA gave it equivalent protection to that which it enjoys in the US under the notorious Section 230 (of the 1996 Communications Decency Act). This is the much-abused US legislation that has allowed internet platforms to avoid any civil liability for harmful content made available on their services. At the time of the conclusion of the USMCA/CUSMA I argued that Section 230 did not apply in Canada, a conclusion that the recent court decision has validated. However, to force platforms to block defamatory content requires time and deep pockets. Given the platforms general unwillingness to comply, and to fight in court every attempt to make them do so, success in forcing them to belatedly act comes only to the persistent and well-heeled person, who is usually forced to go to court to force the platforms to do the obvious right thing.

Online Harms legislation will put greater onus on the platforms to monitor for harms and to take corrective action, according to set of defined criteria. But how broad or how narrow should the criteria be? Here again is the perennial problem of the two-edged sword. Even PEN Canada, which vigorously advocates for protection for writers and journalists, and which has featured the problem of digital transnational repression, does not have an agreed position on the legislation. In its annual report, it states;

“PEN continues to monitor the (Canadian) government’s efforts to introduce legislation to address misinformation and online harms. The freedom of expression issues in regulating online communications are obvious, but cut both ways. We see how bullying behaviour silences voices in the digital commons, to the detriment of free expression, but also recognize the dangers of government regulation of online speech…PEN believes that action is needed to address online harms which are doing so much damage to our democracy. But we believe we should move with caution, transparency, and sensitivity to the public’s right to freedom of expression, to avoid threatening that which we are trying to protect.”

That pretty well sums up the dilemma.

When state actors abuse the guarantees of freedom of expression built into democratic societies, it is an unfair fight. They take advantage of freedoms of communication that they themselves deny their citizens, and use those freedoms to target, intimidate and possibly silence those who speak out against repression through personal attacks, misinformation, innuendo, and so on. The police, the platforms and even the judiciary are not of much help in protecting against this form of abuse. Online safety or online harms legislation needs to find a surgical approach (using a scalpel rather than an axe) to address these forms of abuse while protecting the underlying principles of freedom of expression.

© Hugh Stephens, 2023. All Rights Reserved.

Like many people, my daughter is interested in acquiring a hybrid vehicle, to save on gas and to help save the planet. Among the models she has been looking at is the Toyota Prius, so when I saw a review of the 2023 Prius in the Driving section of my local paper, the Victoria Times-Colonist, I thought I would send it to her. I went to Google Search and typed in “Times Colonist Toyota Hybrid” (using the key words from the headline of the review). To my surprise and annoyance, I did not get a link to the review. Instead, I received the following message, or something like it, “No News Coverage Available. Try Again Later”. WTF?

The only explanation I could think of was that I had been caught in Google’s experimental blocking of Canadian news for users in Canada. This test blocking is part of its campaign to resist the intent of Canada’s new Online News Act (Bill C-18) which requires Google (and Meta) to reach agreements with Canadian news providers to compensate them for use of their news content when such content is made available by the platforms. That was the intent of the legislation, modelled on similar legislation introduced in Australia a couple of years ago. However, if the two internet giants decline to negotiate for use of news content, their other option is to ensure that no Canadian news is available on their platforms. This is the route that both Google and Meta have said they will follow. I was learning first-hand what it’s like to be blocked from access to news.  

So, what to do? Simple. I immediately clicked on the Bing icon on my phone (which I had downloaded as a backup just in case Google pulled this stunt on me), and voilà, there was the story. Admittedly it was in Press Reader, not my favourite format, but at least I had all the information I needed. Bing also provided a link to the original syndicated review, which had appeared in the Detroit News, as well as the same review in an Automotive Magazine. I was surprised to have received the “no news” message as I had read that those who were victims of Google’s blocking experiment, like communications professional Michael Gendron, were able to tell they were part of the exercise only because the news offered to them was only from non-Canadian, mainly US, sources. So, under Google’s blocking regime, if you want the latest information on the wildfire possibly blocking a major road artery in your local area, and you Google it, you would get only general news about Canadian wildfires sending smoke to blanket US cities. Interestingly, when I tried again a bit later, Google decided to let me access the story I had been seeking, taking me directly to the Times Colonist site. Why all this happened I don’t know, but I do know that I have never not been able to access news stories before on Google, except in China, but there the blocking was done by the Chinese government, not by the platform.

The closest analogy to the current situation in Canada is Australia, where Google threatened to block access to its search function by Australian users. Google’s tactics in Australia were a combination of carrot and stick, as I wrote about here, with Google reaching agreement with some Australian news providers, only to suspend those agreements because it opposed being subject to the Australian News Media Bargaining Code. Then, it threatened to block Google Search for Australian users. The Australian government pushed back against these tactics, but the situation took a turn for the worse for Google when Microsoft announced it would be happy to step into the breach and play ball with Australia.  (Google’s Tussle Over Payment for News Content in Australia: Microsoft Scrambles the Cards–With Positive Implications for Canada and Others). This stance taken by another powerful American company also undercut any likelihood that the US government would intervene on Google’s behalf.

With regard to Canada, Google and Meta have been striving to get the US government, in the form of the US Trade Representative (USTR), to intervene regarding C-18, arguing that it violates the new NAFTA, the USMCA/CUSMA. Their lobby group in Washington produced a paper last year when C-18 was still in process arguing that the legislation violated Canadian obligations to provide US companies with “national treatment” (like for like with domestic companies in like circumstances). Their arguments were wrong then, and are still wrong although that hasn’t stopped them from trying through their advocates in Congress to pressure USTR to launch retaliation under the USMCA/CUSMA. Apart from the fact that there is no violation of national treatment under the CUSMA because C-18 does not seek to discriminate in favour of Canadian online platforms that compete with Google and Meta, it is most unlikely that the US government would champion the cause of these two particular US companies given the wide range of US commercial and political interests engaged in the overall Canada-US relationship, the possibility of similar legislation to C-18 passing in the US, and the general unpopularity of the tech giants on Capitol Hill. A good summary of the current status of the issue in Washington was provided recently by the US publication, Inside US Trade. (Full disclosure; I am quoted).

At this stage, no-one knows for sure what will happen regarding Google’s threats to block access to Canadian news. I am still betting on the fact that a compromise is possible and that Google in particular will realize it has more to lose by blocking news in Canada than in coming to a reasonable accommodation with Canadian news providers. If that doesn’t happen and Google follows through on its threat to block news—thereby damaging its reputation internationally not to mention compromising the basis of its algorithms that govern search, based on user requests—then the solution for Canadian users is easy. Go find an alternative. It could be Bing, Yahoo, DuckDuckGo, or others. They all work, but Microsoft’s Bing is the other (relatively) big guy on the block. Google, by its own stupidity and cupidity, just reminded me that there is an attractive, valid alternative.

© Hugh Stephens 2023. All Rights Reserved.

P.S. If you are wondering why Microsoft does not face the same choice as Google when it comes to reaching agreement with news content providers or blocking availability of news, it has to do with market dominance–referred to in the legislation as “significant bargaining power”–(as a result of dominating viewership and thus advertising markets), or lack thereof. However, in the case of Australia while Microsoft was in the same position of not being subject to the News Media Bargaining Code, in its announcement it said that should its market share grow to the point that the Code was applicable to it, it would comply with the Code’s requirements because it was important to support professional journalism.

I am pleased to announce that my book, “In Defence of Copyright”, published by Cormorant Books in Toronto, is now available to pre-order through local bookstores, Indigo (stores and online) in Canada, and online through Amazon, and will be in stores as of August 19. If you live in Canada, you can enter your postal code (here) and locate the closest independent book store where it can be pre-ordered or will be available. You might ask why we need a book defending copyright. It’s a good question and one that is at the root of why I wrote it.

Many people have a general idea of what copyright is although fewer seem to understand its real purpose. It is not to make authors, publishers, record labels or movie studios rich (although one of its premises is to provide a fair reward for creative effort and taking on the risk of distribution). It is not to force cash-strapped students to purchase expensive textbooks (although they should pay a fair price for the valuable content produced by others that they consume). It is not about preventing people from downloading content from the internet (although that is an element of copyright protection). It is to strengthen our society by establishing the conditions for the creation of content that enriches and improves our lives, whether it be literature, art, music, movies, television shows, photography, architecture or even the software that runs computer programs. Copyright constitutes a fundamental pillar of our democratic way of life by giving “authors” (those who create the content that we consume) the rights to control how and where their creative works are used.

I wrote this book because of the myths I have come across when talking with people about copyright. Some young people, unduly influenced I think by social media, seem to think that copyright is a barrier placed by big corporations between themselves and content they want to access. They seem to think it is there to make their lives difficult, to deny them what is “rightfully” theirs for the taking. Others, who should know better, argue that it impedes fair access to education. Still others claim that it prevents people from building on and using pre-existing knowledge. And then there are those who, while well able to afford the minimal price of obtaining legitimate copies, openly brag of their prowess in getting for free that which they know they should be paying for, because “no-one gets hurt”. These people, most of them perfectly upright and law-abiding citizens in every other aspect of their lives, should reflect on the long-term and indirect consequences of their payment-evading “skills”.

These myths need to be addressed, and that in part is what I have tried to do. Copyright in no way limits learning or new ideas; it simply protects an author’s expression of an idea. And yes, sometimes the terms for access require payment, although there is a very wide range of exceptions allowing unauthorized (permissionless) but legal use. Even with this plethora of exceptions, however, there are some who would stretch copyright to its breaking point, as I also discuss. As a concept it is remarkably simple, (it requires only originality, expression, and fixation—i.e. being expressed in a material form of some kind) –and today is established automatically upon creation, yet it can be very complex in its application as the imposing corpus of copyright law attests. This book is not written to expound on complex legal cases, although it refers to some key legal decisions to explain concepts. Rather it is written for the lay reader, the interested public, the informed but non-specialist practitioner and for anyone who wants to understand the basic concepts of copyright, illustrated through various examples (many of them drawn from this blog) written in a way that is, I hope, entertaining.

The book starts with my personal explanation about how I came to have a deeper understanding of the true importance of a good copyright regime in contemporary society. Chapter One provides an overview of what copyright consists of, with a focus on the role of the author, (shorthand for all creators, whether writers, artists, songwriters, performers and so on), from both an economic and moral point of view. Chapter 2 delves into the history of copyright, explaining its roots particularly in British and US jurisprudence, how it has played out in Canada, and its international dimensions. Chapter 3 looks at copyright’s limitations and exceptions, addressing the essential issue of user’s rights. In Chapter 4 I discuss piracy, its antecedents, its manifestations today, and its consequences with three case studies in Chapter 5. The sixth chapter looks at what I call “Contested Uses”, the legal and social debates about the application of copyright protection to specified uses, such as Google’s indexing of books, “Controlled Digital Lending” by libraries and the Internet Archive, use of news snippets and content by online platforms and the ongoing saga of widespread unauthorized copying of copyrighted educational materials by educational institutions in Canada. Chapter 7 deals with emerging issues related to copyright, specifically artificial intelligence (AI), blockchain technology and Non-Fungible Tokens (NFTs) and the application of copyright to Indigenous Cultural Expression. I wrap up with my summary defending copyright, followed by a selection of several of the most popular blog posts from this blog over the past seven years. (I am not going to tell you which ones; buy the book!).

While of particular interest to Canadian readers, this book is written for a wide audience in other English-speaking countries. It is certainly not a textbook but could be useful at an undergraduate level for students interested in gaining a broader background on copyright’s place in law and society, for example students enrolled in communications or creative writing courses, and as general reading for those interested in gaining a deeper appreciation for the role, function and effect of copyright today, in Canada and elsewhere.

Roanie Levy, CEO & President of Access Copyright, has read an advance copy and posted a very generous review on her LinkedIn page.

https://www.linkedin.com/feed/update/urn:li:activity:7092158736739291136/

She enjoyed the book. I hope you will too.

© Hugh Stephens, 2023

In Defence of Copyright

Identifiers: Canadiana (print) 20220263930 | Canadiana (ebook) 20220284040

ISBN 9781770866799 (softcover) | ISBN 9781770866805 (HTML)

Cormorant Books, Inc, Toronto

$19.95