Month: April 2024

When Just Going to the Movies is Dangerous: Indian Diaspora Targeted in Canada

Image: Shutterstock

Immigrants who take up a new life in what is often a culturally very different country from their original homeland naturally seek out the familiar by associating with those from “home” as part of the adaptation process. This is certainly true of the Indian diaspora, in Canada as elsewhere. Part of that comforting feeling of “home” comes from sharing cultural experiences, such as food, music, and movies. As is widely known, India has the world’s largest film industry in terms of output, so it is natural that Indian films will be an important part of cultural bonding for South Asian diaspora communities. But what is an Indian film? The Indian film industry is far from monolithic. There is Bollywood, to be sure, for Hindi language films, but also Tollywood, a term variously used to describe Telugu language films originating in Andhra Pradesh but also Bengali films from Kolkata, and not to be forgotten, a South Indian film industry based in Kerala in southwest India, using the Malayalam language, as well as Tamil language films. And others.

In other words, there are lots of Indian diasporas, many of which have a long tradition of producing their own filmed entertainment. Most of these groups are well represented in Canada. According the 2021 census, the South Asian population of Canada (those identifying as South Asian) was just over 1.8 million, or roughly 5% of the population. The term South Asian includes Muslims from Pakistan and Tamils from Sri Lanka, so if we are talking solely about Canadians originally from India, the total falls to 1.4 million. In terms of geography, the largest group is from the Punjab, the majority of them Sikhs, although there are significant populations of immigrants from Gujerat, Tamil Nadu and Kerala. Hindus make up 2.3 % of Canada’s population; Sikhs 2.1%. (It is interesting to note that Sikhs make up about the same percent of India’s population as they do in Canada). One characteristic of Sikhs in Canada is their degree of political activity. In the current Parliament there are no less than 18 Sikh MPs out of a total of 338, spread across three different parties. By contrast, India’s Lok Sabha, with 543 members, has just 13 Sikh Members. But I digress.

Let’s get back to Indian films, particularly South Indian films, in Canada. You might think that going to the movies to watch a flick from home would be a relaxing and pleasant pastime. If that’s what you think, you would be wrong. In fact, going to a Telugu, Tamil or Malayalam film in Canada can be very stressful, if not downright dangerous. For more than a decade there has been a history of violence against cinema operators screening such films. Screens have been slashed, stink bombs set off and worse. The most recent violence involved drive by shootings at four Toronto area cinemas, resulting in the cancellation of showings of the Malayalam language epic “Malaikottai Vaaliban” in Cineplex venues across the country. What’s going on? Is someone trying to stop the South Indian diaspora from enjoying their movies? Well, not exactly. They are trying to stop them from enjoying their movies in certain locations.

What is happening appears to be commercially motivated, with a turf war taking place over the distribution of these films, with distributors accusing a collection of independent theatres of violence and sabotage. (No arrests have been made or charges laid). Screening ethnic films can be a lucrative business with tickets reportedly going for as much as $30 a head. However, large mainstream multiscreen exhibitors like Cineplex routinely charge about half that amount and as the company has moved into showing Indian language films, it has been targeted. To date, the disruptors have succeeded, as on several occasions Cineplex has cancelled scheduled showings, including screening Malaikottai Vaaliban in BC, even though the most recent violence took place in Toronto. In the past there have also been violent incidents regarding the screening of South Indian films in Edmonton and Calgary.

It is natural for a national chain like Cineplex to want to move into the diaspora market, given the size of Canada’s immigrant population. As of the last census, almost 25% of the population was born outside Canada. The COVID pandemic, which for a time brought movie attendance to a standstill (Cineplex shuttered its theatres for several months in 2020), wreaked havoc on the theatre exhibition industry. Things are recovering, however, with revenues up substantially in 2023 although attendance has yet to reach pre-pandemic levels. But NATO (the National Association of Theatre Owners, i.e. the other NATO) is concerned about predictions of a drop in revenues in 2024 owing to a shortage of films after last year’s SAG-AFTRA strike. This is yet another reason for chains like Cineplex to move into screening of diaspora films, where strong attendance for limited showings can be anticipated.

In Canada, Cineplex, the nation’s largest cinema chain and the fourth largest in North America, struggled as much as others during COVID. One result was the collapse of its acquisition by Cineworld, the UK based exhibitor (which operates Regal Cinemas in the US) that had made a bid for Cineplex in 2019, just prior to the outbreak of COVID-19. With the onset of the pandemic, Cineworld backed out of the deal, and was promptly sued by Cineplex. The result was a $1.24 billion judgement in favour of Cineplex. Subsequently, however, Cineworld declared bankruptcy in the US. No collection on that debt.

Meanwhile, what should Canada’s Indian diaspora do when even going to the movies becomes a fraught and potentially dangerous outing? They should be demanding action on the part of the police! In my estimation, Canadian police forces have typically been slow to come to grips with what one might call “blue on blue” violence, where one element of a diaspora community will harass or intimidate other elements within the same community. In part, it is a result of certain institutions being behind the times and not reflecting the current ethnic make-up of the population; it takes time to win the trust of and to be able to penetrate some ethnic communities. But even allowing for these excuses, it is unacceptable that random (or maybe not so random) violence should be permitted when it comes to something as basic as going out with your family to watch a show. I guarantee it would not be tolerated in the non-diaspora community. Can you imagine the owners of the local indie theatre sending out gunmen to shoot up the local Cineplex because the theatre chain had the temerity to show “Live at the Met” on a Saturday morning? That is the equivalent of what’s been happening, and it’s been going on for far too long.

Even though to date no one has been injured or killed, if this violence continues something really bad is inevitably going to happen. Cancelling showings is not the answer; this only encourages the perpetrators. Toronto-area police forces need to make investigating and stopping this illegal activity a priority. It is like the “broken-windows theory”. If you can’t take your family in safety to the movies, what’s next for the unravelling of law and order?

I don’t think I will ever go to a Telugu or Malayalam language movie, but I respect the rights of those who do. I hope that the next diaspora blockbuster to come to Canada gets a proper screening across the country in popular venues that provide inexpensive, comfortable and safe viewing. Our immigrant communities deserve no less.

© Hugh Stephens, 2024. All Rights Reserved.

Public Lending Right (PLR) Registration in Canada is Still Open: Enrol If You Are Eligible

Photo: Author

If you know all about the Public Lending Right (PLR) program in Canada, you probably don’t need this reminder. However, if you don’t and are a Canadian (citizen or resident) writer, editor, translator, photographer, illustrator, or narrator who has published a printed, audio or e-book with an ISBN number in the last five years, you may qualify for a PLR payment—but only if you register by May 1. The PLR program, run by the PLR Commission in association with the Canada Council, has been in operation in Canada since 1986. It distributes annually approximately $15 million to qualified authors registered with the program, based on a sampling of major libraries across the country to determine whether registered works are present in library holdings. Payments are based on library holdings, not the number of times a work is loaned out, despite the name “lending right”. This year, payments were made to 18,247 authors of the 20,091 who have registered. The maximum payout to an author was $4,500. Minimum payment is $50. The average payment was $806 and the median (half above; half below) was $399.91. Once a book is registered and confirmed to be in the library inventory, payments can continue for up to 25 years.

Not all genres are eligible. While the program covers fiction, poetry, drama, children’s literature, non-fiction and scholarly works, “practical” books such as cookbooks, self-help, “how-to” guides, travel guides, manuals, reference works, educational books like textbooks or books resulting from a conference, seminar or symposium, and periodicals, are not eligible. Full eligibility criteria for registration can be found here. Registration is a bit old-school and not that simple. A form needs to be downloaded and completed by hand. Various codes have to be added to the form (there is a guide). Photocopies have to be made of the work’s title page, copyright page, and table of contents. For audiobooks similar information must be provided, such as a photocopy of the audiobook box cover. Next, this all has to be packaged up and mailed through Canada Post. Registered mail is advised. Applications are then assessed, compared against an electronic database of library holdings and cheques prepared for mail out by February of next year. (A recent innovation is an option for electronic deposit). All this is accomplished by a dedicated staff of just 4 people!

About 800 authors a year apply for the program. In a sense, this is a problem because funding has not been increased for around two decades. (While new authors are added, there is some natural attrition as the estates of deceased authors do not receive payments, plus there is a drop off as older works age out). But the end result is a net increase, with the same amount of funding being spread over an ever-increasing base. Not only that, with inflation over the years the value of payments has actually declined by almost 50%. The Trudeau government made a pledge to increase the PLR back in 2021 but so far has taken no action. The Writers Union of Canada has advocated for a doubling of annual funding from $15 to $30 million (it was just $3 million when first launched in 1986). A coalition of Canadian publishing and authors organizations has just sent a public letter to the Minister for Canadian Heritage and the Finance Minister prior to the release of the 2024 budget on April 16 urging that commitments to increase funding be fulfilled.

The formula for payments to authors is somewhat complicated. It is explained on the PLR website as follows:

“Payment per title = Hit rate × # libraries where title is found × % share × time adjustment”

The hit rate varies but last year was $61.53. That is multiplied by the number of libraries where the title was found. If the author claims full title there is no percentage share adjustment but where a work has more than one author claiming a share of title (e.g. a writer as well as an illustrator), there is an adjustment related to the amount of contribution each made to the creation of the work. The time adjustment is related to when the work is published. Older works are subject to a discount. Got it? The best way to find out what you might earn is to register, assuming your work qualifies. If you get a cheque in 2025 you will have some idea of your contribution to the literary base of Canadian libraries.

Canada is now one of more than 30 countries that has a PLR. (The US does not). The first PLR program goes back to 1946 in Denmark, followed by Norway and Sweden although the idea originated in 1919 with the Nordic Authors’ Association passing a resolution calling on governments to compensate authors for library lending of their books. The World Intellectual Property Association (WIPO) defines the PLR as “the legal right that allows authors and other right holders to receive payment from government to compensate for the free loan of their books by public and other libraries.” In Europe, the PLR is actually underpinned by copyright legislation in the form of the Rental and Lending Right Directive (Directive 2006/115/EC) that provides authors with an exclusive right over the lending out of their works, or remuneration for the lending of such works. PLR in non-EU countries, such as Canada, Australia, New Zealand and Israel is not dependent on a legal right but is in fact a form of government subsidy to authors. In some countries payment is based on how often works are loaned, in others, such as Canada, it is based on library holdings.

In most countries, including Canada, libraries do not pay for the PLR, and it does not affect their budgets. Instead, funding comes from central government sources. You would think, therefore, that being part of the writer/publisher/reader ecosystem, libraries would be enthusiastic supporters of such payments to authors as it encourages them to create more works, enlarging the base of books available to users of libraries. That, however, is usually not the case. Libraries generally don’t support, or give very lukewarm support, to the PLR for fear that funding for it might come out of their hide, as in the Netherlands. (WIPO tactfully says that “In the few cases where libraries pay for PLR, such as in The Netherlands where public libraries operate as independent entities, PLR is viewed by the library community as a legitimate charge that fairly compensates authors for the use of their works free of charge by the public”). That is a very rosy interpretation of the position of most library associations. Not only is there concern that somehow funding for authors will mean less money for libraries, but there is ideological opposition from library associations too.

The International Federation of Library Associations and Institutions (IFLA), in its policy statement on PLR, states that “IFLA does not favour the principles of ‘lending right’, which can jeopardize free access to the services of publicly accessible libraries, which is the citizen’s human right…” It goes on to say that “the justification usually given for PLR – that the use of copyright works through public libraries detracts from primary sales – is unproven”, arguing that lending by libraries often assists in the marketing of copyright works. (equally unproven, I would say). The Canadian Library Association has published opinion pieces echoing IFLA’s position, although its official position is that it supports payments to Canadian writers and endorses the use of library data to implement the PLR. There are caveats, however, such as opposition to any legal entitlement to PLR payments for writers plus assertions that library lending is of financial benefit to authors even without any PLR payments.

Despite reluctant library endorsement, PLR continues to grow globally. It now exists in 34 countries, with another 27 having it under consideration. As a result, in 2019 IFLA nuanced its outright opposition. For countries where there is not yet a PLR, members are urged to continue to oppose it. In particular IFLA opposes establishment of a PLR in developing countries (I guess writers in those countries don’t deserve support). If institution of a PLR appears inevitable, IFLA’s position is that national library associations must insist it not be funded from library budgets and that the administrative burdens on libraries be minimized.

PLR International, an advocate for expanding the PLR that holds an international conference every few years (the last one was in Brussels in September of last year), has addressed the IFLA position head on. It clearly states in its Charter of Best Practices that “PLR systems should be funded directly by central and/or regional government and should NOT be funded from library budgets.” Canada’s PLR Commission has “Celebrating Libraries” as one of its three fundamental pillars, the others being “Supporting Authors” and “Enriching Readers”, no doubt in acknowledgement of the generally tepid position of library associations on the PLR. (Interestingly, in the UK, the PLR system is run by the British Library).

The sometimes surprising misalignment between authors and library interests relates not just to the PLR, as I wrote a few years ago (“Are Libraries the Enemy of Authors and Publishers?”). I concluded they were not, although more recently the position that some in the library sector have taken on Controlled Digital Lending and collective licensing (“Chided by the Canadian Federation of Library Associations for Defending Authors: What an Honour!) for educational publishers makes me wonder.

But whether Canadian libraries are enthusiastic or lukewarm supporters of the PLR, it exists and has been in existence in Canada for almost 40 years, albeit without any legislative foundation. Although payments are relatively trivial, they are nonetheless a welcome supplement to the income of many writers and are a mark of recognition and partnership between libraries and authors, even though it seems some librarians are reluctant to see it that way. Published authors out there who have not registered should do so, if only to demonstrate to the government the wide base of creativity in Canada and to encourage a topping up of the PLR fund. You have two weeks left. Deadline is May 1. Don’t miss out.

© Hugh Stephens, 2024. All Rights Reserved.

A Cautionary Copyright Tale

My daughter’s (copyrighted) art, circa 1990, age 5 (Used with permission)

It is rare that a copyright story makes the national news, in Canada or elsewhere, but this one had all the needed ingredients. A teacher exploiting students, irate parents, and a possibly negligent school board. What’s not to like?

The Canadian Press reported that ten Montreal area parents have launched a lawsuit for CAD$1.6 million against a junior high school teacher for copyright infringement, and for negligence on the part of the Board. According to the report, Mario Perron is (or was?) an art teacher at Westwood Junior High in St. Lazare, QC, west of Montreal Island. Perron had assigned his class to prepare “creepy portraits” of themselves and other students in the style of artist Jean-Michel Basquiat who, despite his Quebecois sounding name, was an American neo-impressionist artist in the 1980s who worked with Andy Warhol. Some of the works produced by the students were quite interesting, judging by the samples displayed in this Google search. (Who knows? Maybe they relied on an AI program to produce Basquiat-like works “in the style of”, as I did a couple of years ago for an earlier blog). My prompt, however, was for an artist (Monet) whose work is in the public domain.

Their teacher clearly did not give much thought to copyright when he posted artwork created by the students on his website, including portraits of classmates and self-portraits screened on to tee-shirts and coffee mugs. They were offered for sale at various prices, over $100 in some cases. There is little question that this was a flagrant violation of the student artists’ copyright. You may ask why these students would enjoy copyright in these amateur works? The answer is simple. The works met all the criteria in Canada to be eligible for copyright protection.

There is no minimum limit on the age of a creator, although a creator has to be living, sentient human being, not an AI robot or a monkey with a camera. (Yes, in theory even an infant’s artwork could be protected by copyright). All that needs to be shown is that the work is original (not a copy), that it is the expression of an idea (the idea itself cannot be copyrighted), that it demonstrates “skill and judgement” and that it is fixed in some form (i.e. a physical incarnation as on a canvas, or on paper, a recording, a photograph.) Plus, the artist must be a resident of a Berne Convention country (which Canada is). These works met all these criteria. A work does not have to be a Rembrandt to enjoy copyright protection. The artist does not have to be famous or have produced any other work. It could be argued that even dipping your hand into a can of paint and placing it in a certain way on the canvas constitutes originality, skill and judgement. These works belonged to the student artists and neither their teacher, nor anyone else, had the right to appropriate them through unauthorized reproduction and distribution, let alone for commercial purposes. The law is very clear.  

In addition to copyright considerations, here are additional factors to take into account, such as the fact that the portraits were, according to the teacher’s instructions, either self-portraits or portraits of classmates. Since the instruction was to produce a “creepy portrait” à la Basquiat, it is not inconceivable that some of the subjects of the works might become the object of ridicule or harassment since their first names were attached to the portraits. This issue goes beyond copyright law, but it is important to remember that copyright law grants the creator the right to determine the means and extent of distribution of a work (for example, the author can decide not to publish or display it). These rights were violated. It is the potential damage from the unauthorized distribution of the works that could be even more harmful than the violation of economic rights. To usurp the right of the artist to decide where and how their work will be displayed is a clear violation of copyright law. I won’t comment on the personal harm aspects of the case, but they are clearly related to the copyright infringement elements.

The remedies sought are substantial, amounting to $155,000 for each of the ten families involved in the suit, based on statutory damages of $5000 per work times 31 works, the number created by each student. In addition, the plaintiffs are seeking $100,000 in punitive damages and $150,000 in costs. Canada’s Copyright Act, Section 38.1(1) provides for statutory damages (damages where the amount of actual damage does not have to be documented, nor actual injury proven) of not less than $500 and not more than $20,000 for commercial infringement, and not less than $100 and not more than $5000 for non-commercial infringement. Mr. Perron is potentially in big trouble.

As for the School Board, which is saying very little, the claim is that they were negligent in allowing this to happen. Are they any more negligent than a company whose employee carries out illicit after-hours activities, such as copyright violations of the work of others? I wouldn’t have thought so, but of course a teacher does exercise a position of trust over their students, and the Board is responsible for ensuring that the trust is exercised responsibly, so perhaps. The works were created in a classroom setting (this does not give either the school or the instructor any authorship rights over the works, by the way), yet the infringement occurred outside school hours and premises. Could or should the school administration have known? There certainly wasn’t a line in the policy book for teachers that said, “Do not make unauthorized use of student art for your own commercial gain”. Who would have thought of that?  Anyway, I am not a lawyer so what I think about the Board’s culpability doesn’t really matter. The court will decide, if it gets to court.

The parents (one of whom must surely be an IP lawyer) have also asked for a written apology, the removal of all the students’ art from the internet and an accounting of funds earned. To my knowledge, they have not demanded that Perron be fired, although that may happen. Perhaps the suit has been filed to get the attention of the School Board, which was dilatory in responding to initial complaints. Perhaps there will be a non-punitive settlement, with any proceeds to date being donated to school art programs. Hopefully Mr. Perron and others will have learned an important lesson about the role of copyright in protecting the work of creators, even if they are young students. Perhaps he won’t lose his job.

I would like to think the result will be a greater awareness by educators, students and the public of the importance of copyright in society today. Let’s hope that this particular teacher was simply blind or ignorant with regard to his actions, not malign. He will now know better. It is an important lesson for all concerned, and a cautionary copyright tale if there ever was one.

© Hugh Stephens, 2024. All Rights Reserved.

Would Anyone Copyright This Flag? (Not an April Fool’s Joke)

Image: Flags of the World (Used with permission)

No, this flag is not an April Fool’s joke, although I am posting this on April 1. As a flag design, it’s a dog’s breakfast. Not that a registered design has to be aesthetically appealing, but it needs to be original. And this one is original, in its own way. The flag of the Town of Ladysmith, BC, as Ladysmith councillor Jeff Virtanen has stated, is a “hodgepodge”. The mayor also agrees that it should be updated. Where it actually came from, no-one is saying but it is a pastiche of the red bars of the Canadian flag, with a maple leaf in the lower right, dogwood symbol (the provincial flower of British Columbia) in the upper left, and then, in the middle, a design of what appears to be a sail boat (Ladysmith does have a harbour) with two horseshoes superimposed on the sail (not sure what they are supposed to represent), with a diagonal slash that says “49th parallel”.

That is a reference to Ladysmith’s location, smack on the 49th parallel, the dividing line between Canada and the United States for most of North America west of Lake of the Woods. However, owing to a quirk of both history and geography, when the boundary west of the Rockies between the United States and British possessions in North America was settled by the Oregon Treaty of 1846, all of Vancouver Island, which extends south as far as Victoria at latitude 48’ 25” N, was included within British territory. Somehow, the fact that you can drive through the 49th parallel without being accosted by the US Border Patrol or the Canada Border Services Agency is part of Ladysmith’s appeal. Actually, it is a nice little town of 9,000 originally established as a coal mining centre back at the beginning of the 20th century, with a great location, some nice heritage buildings—and a very eclectic flag.

Last year I wrote about flags and copyright (“Flagging Copyright Concerns: Vexillologists Take Note”), given the controversy over the Australian Aboriginal flag, when the Australian government had to fork over AUD$20 million to purchase the copyright to a flag design that it had adopted, as the Aboriginal flag, under the Flags Act. Aboriginal artist Harold Thomas had designed the flag back in the 1970s and an Australian court had upheld his copyright on the design. I doubt if there is going to be any dispute over ownership to the Ladysmith flag, although you will note that the flag image gracing this blog at the top of this page is used with permission of the website Flags of the World, which has a depiction of the Ladysmith flag along with 188,000 other flags. It is very detailed. If you want to know what the flag of Tannu Tuva between 1933 and 1941 looked like, this is the place to find out.

Generally, most country flags are not copyright protected either because the designs have lost protection owing to the lapse of time or because governments have made them copyright exempt. However, there may be other forms of intellectual property protection to ensure the national flag is not misused in such a way as to misrepresent a commercial entity as a government institution, or to prevent it from being disfigured or dishonoured.

Flags of the World has an extensive section on copyright, noting that,  “Our editorial policy is to include images only when we can ascertain that we have permission to use them”. The website gives permission to use any of the flags on the site under the following conditions;

  • you limit your use to a maximum of 5% of the images or content of the website (let’s see, 5% of 188,000 is 9,400 so I am OK there)
  • you quote the author (Check, did that)
  • you quote the website (Check, yup)
  • you do not alter in any way the images or the content of the text (Check)
  • you use the material for non-commercial and non-political purposes only (And Check)

It looks like I am in the clear when it comes to using this particular flag image. However, just to be extra vigilant I asked for and was granted permission to use the flag design on the website which was designed by Masao Okazaki from a photo located by Dave Fowler. It is not clear who the original designer of the Ladysmith flag is or was.

Now, whether and when Ladysmith’s municipal flag will get a makeover is a good question. It may not be top of mind for residents who are dealing with other issues, like inflation, world peace or whatever. Still, a flag is a branding tool, and this brand needs updating.

But here are some copyright considerations that Ladysmith Town Council might want to consider.

When the new design is approved by Council, no doubt after an extensive public consultation process, the flag designer (or their estate) will hold the copyright for the work for the duration of their lifetime, plus 70 years. That is unless they are an employee of the town and were assigned the task of flag design as part of their duties, in which case ownership would vest in the township (unless there is an agreement between the employee and employer to the contrary) although the copyright term of protection will still last for the life of the author plus 70 years. In Canada, there can be a distinction between authorship and ownership. If the artist is not an employee but if the work is produced under a “contract of service or apprenticeship”, (as opposed to a simple “contract for services”), the township will also own the copyright. But if the work is done under a “contract for services”, i.e. as an “independent contractor”, the author of the work will control the copyright. What is the difference between the two types of contracts? That is why we have lawyers!

If you want to add another layer of complexity, even if the copyright is owned by the township, the author will still enjoy moral rights in the work, that is the ability to protect the integrity of the work, unless there is an agreement to the contrary. So, if we take the current flag as an example, and Council decides to remove the two horseshoes from the sailboat’s flag, in theory the creator of the original design (if anyone is aware of who that is) could assert their moral rights to oppose the modification of the flag. Better to get a new one designed and, if possible, control the copyright through contractual provisions.

Replacing a poorly designed flag may be a good idea, but keep in mind the copyright ramifications. I am sure that the Town has a legal department, or at least a lawyer on retainer for legal advice, so they will no doubt do it right. I can hardly wait to see the new flag floating proudly over Ladysmith harbour.

© Hugh Stephens 2024.  All Rights Reserved