Month: October 2023

Credit: Pixabay.com

This is the question that Peter Grant chose to highlight when reviewing my book, In Defence of Copyright (see below). It is a question rooted in both our history and current practices.

Sometimes when I look at the efforts of creators and rights-holders in Canada to protect, manage and exploit their works, I am tempted to agree with the question, although it would, on balance, be an unfair characterization. I have in the past written about the growing proclivity of some Canadians to access the national sport while evading the need to pay the providers of the sports programs they want to watch, (“Surprise! Canadians Like to Pirate NHL Games–But Dynamic Site Blocking Orders May Soon Put a Stop to the Free Rides”), but most Canadians tend to be pretty law-abiding. One of the problems in the area of copyright infringement, however, is the unfortunate cloaking of content theft with euphemisms such “file sharing” or the even more “romantic” concept of piracy. As I noted in Chapter 4 of the book, with regard to piracy;

“The primary definition of piracy…has to do with seaborne corsairs plundering ships and coastal towns. Maritime piracy was a major scourge from the seventeenth through nineteenth centuries and pirates were feared and detested. The public image of pirates began to change with the publication of Robert Louis Stevenson’s “Treasure Island” and the complex character of Long John Silver, immortalized in the 1951 Disney film of the same name starring Robert Newton. (Aargh, matey). More recently Captain Jack Sparrow of the Pirates of the Caribbean franchise has made being a pirate even more respectable with his cunning, swashbuckling character. Through these characterizations, piracy has taken on an almost Robin Hood like aspect. A good example of the “brand image” of piracy is the proud adoption of the name “The Pirate Bay” by the notorious Swedish content piracy site.”

The use of the term piracy to describe the theft of intellectual property goes back to the 17th century (even before the enactment of the first copyright law, the 1710 Statute of Anne) when London booksellers used the term to describe competitors who reprinted their works without authorization. But piracy wreaks enormous damage on creators and content industries. In 2019, the US Chamber of Commerce estimated that it cost the US economy between 230,000 and 560,000 jobs and between $47.5 billion and $115.3 billion in reduced gross domestic product (GDP) each year. Whether “piracy” is the best term to use to describe this theft of content and diversion of revenues, for better or worse the industry itself has adopted the term.

Whether Canadians are content pirates now can be debated, but that was the epithet thrown at them in the 19^th century by no less an author than Samuel Clemens, aka Mark Twain. Clemens complained that Canadian publishers were taking his works without permission or payment and reprinting them (in Canada). In actual fact, that practice was perfectly legal at the time as US copyright protection for US works did not extend to the Canadian market, and vice versa. This is why Charles Dickens complained so vociferously about American publishers “pirating” his works by printing unauthorized editions for sale in the US. What was not legal, however, was to take unauthorized Canadian editions of US works and export them to the US, yet this was a fairly common practice in the 19^th century in some Canadian publishing circles. In the book, I discuss the vagaries of how copyright law was originally applied and how Canada came to be regarded by some as a hotbed of piracy. It is this point that Peter Grant has picked up on in his review, which follows.

“Are Canadians Born Pirates?”

A Review of In Defence of Copyright, by Hugh Stephens (Cormorant Books, 2023),

by Peter S. Grant

Hugh Stephens may now be best known from his weekly blog on copyright and communications policy issues, which he has been writing for over six years.  But before that he had a long career in the Canadian foreign public service as well as working for a Hollywood media company in the far East.  In both contexts, he acquired an admirable depth of knowledge of how intellectual property is used and abused.

His new book, In Defence of Copyright, builds on this experience and provides a cornucopia of stories and insights from the world of copyright.  For anyone with a desire to understand the current issues in copyright, this book is a must-read.  It also provides a fascinating excursion through the history of the development of protection for the creators of intellectual content.

Canada has an interesting history in this area, as Stephens notes.  At one time Canada was a source of unauthorized editions of The Adventures of Tom Sawyer, leading Mark Twain to complain “I can’t trust any more Canadians after my late experience. I suppose they are all born pirates.”  But with its later adherence to the Berne Convention, Canada eventually embraced the world of copyright protection.   

And more recently, in fact, the Canadian courts have been at the forefront of protection, by supporting novel forms of site-blocking.  As Stephens explains, “this allows copyright holders to shift targets as the pirates duck and weave, constantly altering the online location of their illicit sports streams.”  Stephens has great fun in exploring the application of copyright law to new technologies and new forms of expression.          

In Defence of Copyright covers a wide range of subjects.  Apart from the problem of piracy, it addresses the historical roots of copyright, its limitations and exceptions, and contested uses, including conflicting interpretations around legal uses of a copyrighted work.  Stephens also addresses the challenges to copyright posed by artificial intelligence. As he points out, if there is no human attribution to works created through AI, the foundations of copyright will be severely tested. 

Stephens concludes his book with entertaining stories about copyright from his weekly blog.  These add a delightful coda to his main message.  Taken together, his book provides an excellent introduction to the field of copyright protection.  It should be read not only by creators who seek to protect their works, but by everyone interested in public policy in a fast-developing field. 

  (Peter S. Grant, a retired communications lawyer, teaches Broadcasting and the Internet at the Faculty of Law, University of Toronto. He is the author of Changing Channels: Confessions of a Canadian Communications Lawyer).

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In Defence of Copyright can be obtained or ordered from your local independent bookshop (enter your postal code here to find the closest outlets), or from Indigo or Amazon.

Warning: this blog post has a long opening sentence, so take a deep breath.

I know it is sheer coincidence–since my blog has zero influence over Canada’s copyright policy and the bureaucrats who beaver away in the bowels of the ISED and Heritage Departments working on copyright issues–but I couldn’t help but take a smidgeon of satisfaction from the fact that just a couple of weeks after I published a critical comparison of the activist approach taken by the US Copyright Office on AI and copyright issues, compared to the passive non-response from Canada’s copyright policy makers (A Tale of Two Copyrights, wherein I described the Canadian approach as being one of confusion and ambiguity), the department with statutory responsibility for copyright policy (ISED, aka Innovation, Science and Economic Development Canada) released a consultation paper on this very issue. Titled “Consultation on Copyright in the Age of Generative Artificial Intelligence“, it came out on October 12. Not that the copyright mavens weren’t aware of the importance of the issue earlier. In fact, the National Post, (“Unclear how Canadian copyright law applies to generative AI: government document”), quoting from an Department of Canadian Heritage document prepared back in May retrieved through the Access to Information process, revealed that officials provided an assessment on the subject for then Heritage minister Pablo Rodriguez several months ago.

In that assessment, the briefing note apparently stated, “Rights holders argue the use of unlicensed copyright-protected works in the training of AI models infringes their copyright, and that regulation is needed”, while, on the other hand, “Many industry stakeholders wanting to promote innovation and technology will oppose any regulation of AI. Instead, they seek clearer exceptions in the Copyright Act to define and expand the permitted uses of copyright-protected materials.” Does regulation–of AI or anything else–impede promotion of innovation and technology? The AI sector is crying out for regulation given the abuses that are already becoming apparent. Casting copyright as antithetical to innovation is part of the false narrative often put forward by the hi-tech sector. Have those who would freely scrape the internet of all content, copyrighted or not and accurate or not, all in the name of “innovation”, ever heard of licensing? That is what many content creators are now insisting on. First, they have to block the stealthy web crawlers, which is what the BBC and New York Times have done. Meanwhile Getty Images is suing StabilityAI for having taken its content without permission. Once the free ride has ended, licensing models can then be developed. This is already beginning to happen. In July of this year the Associated Press announced a two-year licensing deal with OpenAI, ChatGPT’s parent company. Others, such as the Guardian, Axel Springer, and News Corp are reportedly in licensing negotiations with leading AI development companies.

To be fair to the bureaucrats at Canadian Heritage, perhaps they were not saying that copyright impedes innovation, but were only paraphrasing the position of many in the tech sector. The Heritage briefing note also discussed whether or not AI generated works should be eligible for copyright protection. As I noted in the Two Copyrights blog, the US Copyright Office has insisted on human creativity as an essential element for a work to be granted copyright protection. Canada has not taken a clear position on this (although it is implicit), yet the Canadian Intellectual Property Office (CIPO) has issued copyright certificates for AI-generated works. (This fact, and the blog post I wrote about it, was referred to in the current ISED discussion paper at Footnote 50. I guess some of the mavens do read the blog. Thanks mavens).

Ironically, while the tech sector has no hesitation about freely ingesting copyrighted content to create “new” AI-generated works (which often compete with the original work in the marketplace), it wants to eat its cake and have it too. Notwithstanding its position that taking copyrighted content without permission to produce AI generated outcomes is legitimate (and if not, it should be), tech companies producing AI generated content still want that content to enjoy all the benefits of copyright protection. If not, the output of content developed by AI could be freely used and copied with no ROI for the content creators, and thus no economic incentive to produce it or use it.  

Moreover, producing content with a heavy element of AI generated content that may have been trained via copyright infringement is drinking from a potentially poisoned chalice. This is a key issue that needs to be dealt with in any attempt at regulation and is one of the questions addressed in the current ISED discussion paper. To show how quickly things are changing, back in September of last year, Getty Images announced it would ban from its repertoire all images generated by AI in order to protect its users. A year later, in September 2023, Getty launched its “commercially safe” generative AI offering, built exclusively on licensed content. Content providers are compensated for any inclusion of their content in the training set and subscribers using Getty content, including Getty’s AI-generated content, are fully indemnified against lawsuits by Getty. That’s the value of a licensing solution.

But back to the consultation paper just issued. It builds on an earlier discussion paper issued in 2021 seeking input on “A Modern Copyright Framework for Artificial Intelligence and the Internet of Things”. The government received about 40 responses at the time, from groups and individuals representing the creative community as well as the tech industry. Nothing happened, and the world has moved on. Now, we have a second consultation paper that addresses three principal questions;

Text and data mining – i.e., whether any clarification is needed on how the copyright framework applies to the use of copyright-protected works and other subject matter (e.g., a performance or sound recording) in the training of AI systems;

Authorship and ownership of works generated by AI – i.e., how the copyright framework should apply to AI-assisted and AI-generated works; and

Infringement and liability regarding AI – e.g., who are the persons liable when AI-generated works infringe copyright-protected works.

Let’s look at these three questions. Canada does not have a text and data mining (TDM) exception in its copyright law, unlike a number of other countries. In my view, this is something that should be addressed although an approach that would protect creators by limiting a TDM exception to non-commercial research purposes, as in the EU, will be attacked by the tech industries as too little, too late. On the authorship issue, the blending of a requirement for human creativity with the ability to use AI to create, and defining the boundaries between AI-assisted versus AI-created works will not be easy. Finally, on infringement and liability, an important element will be documentation of inputs, something that AI development companies are loath to do. Getty’s approach of verifying legitimate inputs in order to be able to certify the legality of outputs is a good example of the need for transparency.

Responses are sought by December 4, via online consultation form. Then what? This is not an area where rapidity of action is rewarded as it is all too easy to get it wrong, given the rapid pace of adoption of AI, plus the various court cases underway (although not in Canada). On the other hand, the more one dithers, the more the regulatory regime becomes outdated and no longer fit for purpose. It is not an enviable position to be in. The consultation paper will have the virtue of buying time while seeking yet more input from all players. I am glad to see that Canada finally “got the memo” and is taking some action. If you have views, weigh in.

© Hugh Stephens 2023. All Rights Reserved.

Image: Shutterstock

I had the opportunity to visit Taiwan in August, where I once (in the last century) served as Director of the Canadian Trade Office in Taipei, aka the Canadian Representative to Taiwan. (The word “Ambassador” cannot and shall not be used for obvious diplomatic reasons). While there I was able to get updated on a couple of interesting developments regarding copyright issues in this bastion of democracy in Asia. One has to do with a longstanding scourge that has faced Taiwan, broadcast and streaming piracy, a problem faced by many countries; the other was how Taiwan is addressing the global problem of dealing with generative AI (artificial intelligence) and its relationship to copyrighted content.

Piracy has and continues to be a problem in many parts of the world, and Taiwan is no exception. The forms of piracy change with changing technologies, and given that Taiwan is a sophisticated, advanced economy, one would not be surprised to learn that the main forms of piracy are also relatively sophisticated. It also faces the challenge of sharing a more or less common language with China and being close and exposed to the machinations of various enterprising pirate operations based in the Mainland. The situation is aggravated by the fact that China does not seem interested in combatting piracy when it is based there but targets users in other jurisdictions.

One of the major forms in which audio-visual content piracy occurs is through sale of ISDs (Illicit Streaming Devices), also referred to by the innocuous descriptor of “set top boxes”, devices that if suitably reconfigured can provide users access to pirated content. As I wrote  in a blog post a couple of years ago (“Pirate Streaming Boxes: An Abuse of Legitimate Technology…), legitimate devices, like Kodi boxes, can be reconfigured or adapted with software, altering  them to become distribution platforms for pirated content, which is often accessed through codes provided via offshore websites to “subscribers”. Vendors facilitating piracy often feign ignorance of the ultimate use of the devices they are selling (even though they often actively advertise them as offering “free TV’ or “unlimited channels” or something of that nature). In many cases, until a device is actually put to an illegal use, it is difficult to take legal action.  Sellers openly marketing ISDs are hard to stop because of the dual-use nature of the boxes and the fact that the providers of the software giving access to the pirated content are often separate entities located offshore.

Singapore and Malaysia are other Asian jurisdictions that have faced the challenge of piracy facilitated through  ISDs sold openly in electronics markets. In reforms finally enacted in 2021, Singapore’s Copyright Act was amended to make it illegal to sell set top boxes and associated software applications that offer access to pirated content, or to advertise that they provide access to such content. Taiwan tackled the problem by adding to the definition of “deemed as copyright infringement” an additional provision making it an offence for a person (who has knowledge of pirated content on the internet, and the intent to distribute it to the public), to provide the public with access to computer programs having links to pirated content, or to manufacture, import or sell equipment preloaded with such computer programs, or to direct, assist or provide paths to the public for using such computer programs. A person who undertakes such activity shall be deemed to have the required “intent” when the advertising or other active measures employed by the person “instigates, solicits, incites or persuades” the public to use infringing programs. It is never easy for copyright authorities to get new legislation passed when there are understandable concerns by legislators that too broad a brush will capture non-infringing activity. The Taiwanese legislation was carefully drafted and to date has had some success in reducing (although not entirely eliminating) the open sale of ISDs providing access to infringing content (movies, sports programming, music and television shows) distributed over the internet.

But with each tightening of the law, the bad guys come up with a new workaround. The latest in Taiwan is the “Ubox”, produced in China (of course). UBox is made by Unblocktech (whose name says it all). Uboxes caught the public’s attention in 2021 when several prominent Taiwanese personalities, including the president of a professional basketball league that relies on broadcasting licensing for revenues, were outed for watching the Olympics on a UBox. As with many other ISDs, the UBox itself does not violate the law, but its applications do, which allowed viewers in Taiwan to watch Olympic feeds not authorized for the Taiwan market. UBoxes are difficult for a rights-holder to target with an injunction because the configurations of the apps providing the pirated content keep changing, and so far Taiwanese courts have not permitted dynamic injunctions as a way to combat this. But the publicity given to the consumption of pirated content by prominent Taiwanese figures was noted; local legislators and copyright advocates bemoaned the hit to Taiwan’s reputation. And as Taiwan updates its legislation to prepare for negotiations to join the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), further efforts are being made to tighten the anti-piracy provisions of the Copyright law. These include making “serious” digital piracy cases (based on extent of reproduction and amount of economic damage) indictable without complaint.

Another topical issue that Taiwan is just beginning to address is the impact of artificial intelligence (AI) on copyright, an issue that is on the agenda of copyright authorities around the world. A key question, one that is being tested in US court proceedings as we speak, is whether ingestion of copyrighted materials to train AI algorithms involves “reproduction” in the sense of the law. The New York Times is reportedly considering suing OpenAI for copyright infringement, given that the output of ChatGPT is seen to compete with content produced by the Times, yet is based on the original reporting and research conducted by the newspaper’s reporters. The potential suit is part of manoeuvering to convince AI companies to license proprietorial databases and content, rather than just scraping if for free from the internet. As the US Copyright Office is doing, the Taiwan Intellectual Property Office will convene experts’ meetings to explore this issue. There is no Text and Data Mining (TDM) exception in Taiwanese law either for “old AI” (data analysis) nor “new AI” (generative AI that creates new content), although it has a “fair use” provision similar to that found in Section 107 of the US Copyright Act. As in any democracy, stakeholders need to be consulted and there will be no speedy resolution.

Meanwhile, Taiwan continues to come under pressure from China on many fronts. Despite economic and political pressure, even attempted intimidation, Taiwan is working hard to develop its own society, values, and approaches to domestic and international challenges. Copyright is but one small piece of this much larger puzzle, but the progressive improvements in Taiwan’s intellectual property framework, while still incomplete, are further evidence that this small island of almost 24 million people is charting its own path in the world, focussed on the needs of the people of Taiwan.

© Hugh Stephens, 2023. All Rights Reserved.