Month: November 2025

The CRTC’s “Rube Goldberg” Definition of Canadian Content (CanCon): More Complicated..but Also More Flexible

An old television displaying the words 'CANCON REDEFINED' over a background of the Canadian flag.

Since it is frequently in the news, it’s worth asking the question. What is Canadian Content (Cancon)? It can be many things to many people. Unlike pornography, you don’t always know it when you see it. Blogger Michael Geist illustrated the problem well a few years ago with his Cancon quiz. If you want to do well in the quiz, select just about any production that the general public is likely to regard as Canadian– i.e. based on a book written by a Canadian, starring a prominent Canadian actor or notably taking place in Canada–as not qualifying as certified Cancon. Then select all the obscure productions you have never heard of including several with no identifiable connection to Canada as certified Canadian content. You will be a winner! This perverse outcome is because of the way the system is set up, as I have written about in previous blogs, such as this one (Unravelling the Complexities of the Canadian Content (Cancon) Conundrum).

In brief, up to now Cancon has been primarily defined by the number of points (out of 10) that a production accumulates, in addition to other factors such as the requirement that it be produced by a Canadian and reach a minimum 75% production expenditure in Canada (except for co-productions). Cancon is defined in regulation by no less than three entities, Telefilm Canada for co-productions, the Canadian Audio-Visual Certification Office (CAVCO), part of Heritage Canada, to determine eligibility for subsidies, and the broadcast regulator, the CRTC, with respect to meeting Cancon broadcast quotas. All use the points system, with some productions requiring 10/10 to obtain maximum subsidies, while most others  meeting a minimum 6/10 requirement. Points are awarded for the positions in the production filled by Canadians, such as the writer, director, performers, director of photography, production designer, music composer and picture editor. For CAVCO productions, the copyright must also be held by a Canadian producer for a minimum of 25 years. The actual story and its setting are completely irrelevant. In short, it is more of an industrial than a cultural policy, based on the assumption that if Canadians are in charge, they will produce content that reflects Canada. It often doesn’t work out that way.

Now the CRTC has updated its definition of Cancon as part of the implementation of the Online Streaming Act, which brings streaming services in Canada under the oversight of the broadcast regulator. Foreign streaming services over a certain revenue threshold are being required to make a financial contribution to Cancon (although they are challenging this in court) and may be required to promote Cancon on their services (“discoverabilty). The CRTC cannot impose broadcast quotas on an à la carte streaming service, whether domestic or foreign, thus the financial contribution and likely discoverability requirements. The survival and promotion of Canadian content, both domestically and internationally, is at the core of the legislation. Thus, the CRTC’s new definition of Cancon is very relevant.

If you thought the definition was going to get simpler, think again. However, it has been updated to incorporate new positions in productions, like a showrunner, plus those responsible for costume design, make-up artists, and hair artists. But not all productions, especially those in Québec, have all these positions, especially the new category of showrunner. As a compromise, having a Canadian showrunner will be worth an optional 2 bonus points, but if you don’t have one you won’t be penalized. What exactly is a showrunner? There is a lengthy CRTC definition related to the position being the creative leader of a production, managing the production process etc. With respect to costume design, make-up and hair artists, if collectively all these positions are filled by Canadians the production will garner another bonus point. If a production does not utilize all of these positions, it must fill the ones that it does with Canadians to get the optional point. Is Canadian makeup and hair design different from non-Canadian? I wouldn’t have thought so, but there you go. As I said, it is an industrial policy as much as a cultural one.

Here is another example of what is starting to look like very much like a Rube Goldberg machine, with add-ons, exceptions, secret doorways and special conditions. For animated productions, the Commission will now award 2 points (instead of 1 point) for each of the key creative positions Director, and Scriptwriter and Storyboard Supervisor, when filled by Canadians. There are various other tweaks; for animated productions, the Commission will award the points noted below for the following key creative positions, when filled by Canadians; Director (2 points; previously 1 point); Scriptwriter and Storyboard Supervisor (2 points; previously 1 point); and First Voice (or first lead performer) and Second Voice (or second lead performer) (1 point each; previously 1 point for one or the other, but not both). It goes on. For animated productions, the Director OR Scriptwriter and Storyboard Supervisor, and either the First Voice (or first lead performer) OR Second Voice (or second lead performer), and Key Animation AND Camera Operator must be Canadian. There’s more, adding Visual Effects Director and Special Effects Director to the list of key creative positions in a film, adding one bonus point if both are Canadian.

If all this has your head spinning, be assured that this stuff is of intrinsic interest to the industry but of not much relevance to Canadian consumers. What Canadian consumers want are Canadian stories in Canadian settings. On this score, there is a bit of a breakthrough, recognizing the importance of these factors for the first time. It is only a small opening but is the first time that location depicted in a film has been included as a factor in assessing Canadian content, as well as points for the source of the story.

The Commission will award 1 bonus point where identifiable Canadian characters and identifiable Canadian settings are included in a production, but all lead characters (up to 5 main fictional characters in dramatic productions) must be identified as Canadian or members of First Nations, Inuit or Métis in Canada and all persons on screen in non-dramatic productions (presenters, musicians, dancers) might likewise be Canadian, First Nations, Inuit or Métis (as if the latter were not, by definition, Canadian). As for location, “The location of the story must be set in Canada. The story or narrative must take place entirely in an identified Canadian city/region/province/territory. The location can be identified by a Canadian landmark or by identification on screen or otherwise identified overtly in the narrative or text of the program.”

All this for one lousy point! If you want to incorporate a visual reference to a place outside Canada (for example, one’s homeland for immigrant Canadians) could you do it in a dream scene if the dreamer’s bedroom has a shot of the CN Tower through the window. Not clear. But it is a start toward recognizing that settings, characters and stories are relevant to Cancon. A bonus point will be awarded for a production based on a Canadian story and another point for using Canadian music.

Finally, on the copyright front where the current CAVCO policy requires a Canadian to control the copyright for 25 years, there is mixed news. In a recent blog post, I argued that the CRTC should not impose a Canadian copyright restriction if the goal is to get foreign streamers to produce more Cancon for distribution abroad. Content is softpower. Content exported abroad not only helps cover the cost of production, it projects an image of Canada to the world through Canadian stories. To penalize foreign producers by preventing them from acquiring copyright in productions they have financed or partially financed, should they wish to acquire it, is shortsighted in my view. The CRTC took account of this concern but also had to listen to the instructions it received from government requiring it to consider the need to support Canadian ownership of intellectual property.

The end result is a compromise; Canadians must retain at least 20% of the copyright ownership in a program. In other words, up to 80% of the copyright in a production can be held by a foreign enterprise. In such cases, however, the production must accumulate at least 80% of possible points and the director and screenwriter must be Canadian. Where there are greater degrees of Canadian copyright ownership, some of these requirements are relaxed. There will be no minimum copyright retention period. A recent blog on MediaPolicy.ca goes into more detail on this.

Finally, there is the question of AI, just about the only point in the CRTC decision picked up by the mainstream media. The new positions created to increase the point count have to be staffed by humans, not AI. The rest of the CRTC package was likely too difficult to compress into something readable for the average news consumer.

What does this all add up to? An incredibly complex and bureaucratic system yet that is, believe it or not, a bit more flexible with respect to defining Canadian content than previously. It is a result of the classic compromises that must be made between idealism and reality, between promoting Canadian content in a bubble and ensuring its presence in the real, competitive world. It attempts to strike a balance between heavy lobbying by domestic constituencies such as Canadian independent producers and licensed broadcasters, and the foreign streamers that increasingly dominate the market. It tips the balance a bit more toward being a cultural than an industrial policy, but from the point of view of the average Canadian, is about as arcane as a bureaucratic process can get.

As noted, it is a Rube Goldberg machine with many levers needing to be pulled to get to the desired end, often by the most complicated route possible. But the Commission had little choice given that the current Cancon policy was clearly outdated. Maybe at the end of the day, we will actually get more recognizable Canadian content that finds audiences both domestically and internationally, on a variety of platforms. And while purist Canadian nationalists may disagree, if the new policy encourages additional investment in Cancon from the streamers, that can only be a benefit to Canada.

© Hugh Stephens, 2025. All Rights Reserved.

If anyone is not familiar with Rube Goldberg and his penchant for drawing overly complicated solutions to simple problems, this link will provide more detail.

We need more Canada in the Training Data, but through Licensing not Loopholes

Canada Has a Choice When it Comes to AI Training Content

Scrabble tiles arranged to display the words 'LOOPHOLES' and 'LICENSING' on a game board.

Michael Geist, Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa has argued, in an appearance before the Heritage Committee of the House of Commons, that “we need more Canada in the training data”. He is absolutely right, but just not in the way he proposes. Dr. Geist is what I would call a well-known skeptic when it comes to the intrinsic value of copyright, a copyright “minimalist” if you will (probably an understatement).

With respect to the unauthorized and uncompensated use of copyrighted content for AI training, he states that “in the context of AI, the application of copyright isn’t clear cut. The outputs of AI systems rarely rise (to) the level of actual infringement given that the expression may be similar or inspired by another source, but it is not a direct copy of the original.” Whether the outputs mirror the inputs is not the sole issue. In some cases, such as when music and images have provided the inputs, they do. This is an infringement of the reproduction right, and likely also an infringement of the distribution right and the right to produce a derivative copy (under US law). In Canada the right to create another work from an original work comes from the right of adaptation. However, even without a mirrored output, full reproduction still takes place at the input stage, creating an infringement unless the copies meet a fair dealing purpose and fulfill fair dealing criteria, even if the copies are later deleted. As Keith Kupferschmid, CEO of the Washington DC based Copyright Alliance has pointed out in a recent blog post discussing the copyright principles that apply in AI training cases,

“Some people mistakenly believe that in order to establish an infringement during the input stage, the copyright owner needs to establish substantial similarity between the ingested copyrighted work and AI-generated output and if no substantial similarity exists there is no infringement in this stage. That is incorrect.”

Even without mirrored outputs, full non-transitory copies of copyrighted works are being made at the ingestion stage of AI training. That is an infringement, just as making a photocopy of a complete work, such as a book, would be an infringement unless covered by an explicit exception such as preservation purposes by a library or archive. 

Dr. Geist’s second line of argument is that if Canada makes it more difficult or costly to develop large language models, AI development will shift outside the country. This is a tried-and-true but tired pretext frequently employed by those seeking to justify the appropriation of copyright protected content in the name of “innovation”, as I pointed out in an earlier blog post. (CanLII v CasewayAI: Defendant Trots Out AI Industry’s Misinformation and Scare Tactics -But Don’t Panic, Canada). This is a race to the bottom, throwing the content industry under the bus on the pretext that everyone is doing it, even though that is untrue. One provision that has been selectively incorporated into the laws of some jurisdictions, like the UK and the EU, is an exception for “text and data mining” (TDM). Dr. Geist states this is why Canada also needs to introduce a similar statutory exception to promote AI.

However, not everyone is engaged in this race to the bottom. In fact, there are increasing doubts that establishing a statutory TDM exception for AI training is the best way to go. Australia has just firmly rejected the creation of a TDM exception in its copyright law even though it is also grappling with the same issue of how to incentivize AI training and research in that country. The UK’s current TDM exception is limited to non-commercial research purposes and in the face of strong opposition from its creative sector, Britain has put proposals to expand TDM on hold. Even the EU’s TDM law, which has two aspects, one limiting the data mining to non-commercial scientific research conducted by scientific research organizations or cultural heritage institutions while the other is a general purpose TDM that is open to commercial organizations, has guardrails. These include an opt-out provision whereby rightsholders can block ingestion of their content through technical measures, contract provisions or other means, in which case the TDM exception does not apply.

While opting-out by rightsholders is one way to limit the damage of unrestricted text and data mining, this is controversial because it places the onus on the rightsholder to take action whereas normally a party wanting to use someone else’s property would have to obtain permission in advance. Opting out is not a preferred solution for the creative community. It doesn’t work well in practice as rightsholders often lack the technical means or awareness to apply their opt-out rights. Because of this, the European Parliament’s Committee on Legal Affairs has just published a study examining how generative artificial intelligence interacts with European Union copyright law. The study recommends moving from opt-out to opt-in for rightsholders.

Thus, far from TDM being or becoming the norm, it is being rejected or constrained in a number of countries where the AI industry has been pushing it as the ultimate solution. The Canadian creative community, like the creative sector in Australia,  has spoken out strongly against introducing a TDM exception into Canadian law. Indeed, there is no need to do so as licensing solutions allowing AI training and text and data mining are becoming more and more common, including in Canada. For example, the Writers Union of Canada is studying a proposed agreement between select nonfiction authors, HarperCollins, and Microsoft to license full texts for the purpose of training artificial intelligence. Licensing agreements have taken off big-time in the US and elsewhere as the AI industry begins to understand this is the safest way to protect their investments. Canadian creators risk being left by the roadside if Canada brings in a TDM exception that would allow AI developers to steam ahead, appropriating content without payment or permission and ignoring licensing requirements by hiding behind a TDM exception.  The surest way to kill a nascent and growing licensing market is to give the AI sector a TDM loophole to exploit, removing any incentive to reach licensing agreements with rightsholders.  The solution is licensing, not loopholes.

Dr. Geist stated in his testimony to the Heritage Committee that AI developers would take the view that if they had to pay for (i.e. to license) content from Canadian creators, they would simply exclude it. The record of licensing deals being reached elsewhere suggests this is completely off base. Instead, the record shows that when AI developers want reliable, curated content to make their product better than the competition, they are ready to pay for it. But they will never pay for it if they are given a blank cheque through a legislated loophole. He also claims the position of the creative community is “Don’t use my stuff”. Again, the record of licensing deals to date and in the pipeline disproves this characterization in spades. Rather than blocking use of their content, creators are saying, “If you want to use my content, let’s talk”. Finally, Dr. Geist managed to completely mischaracterize the position of the creative community with regard to licensing. He said in his testimony that creators are advocating for a change to copyright law to mandate payments for AI training use. On the contrary, the creative community is simply asking that existing copyright law not be gutted. There is no need to create a mandatory payment requirement; existing copyright law is fit for purpose in dealing with how those wishing to use copyrighted content for purposes that fall outside fair dealing can do so. Negotiate a licence.

If any proof is needed of how the creation of a loophole will kill a licensing market is, all one needs to do is look at the sorry state of educational publishing in Canada. The industry has been decimated, and many authors have lost their livelihood because of the ill-conceived educational exception that was introduced into Canada’s Copyright Act in 2012. With that loophole in place, educational institutions across the country, with the notable exception of Quebec, began to tear up the reproduction licenses they had held from Access Copyright, the copyright collective representing authors. The educational exemption as part of fair dealing criteria could still be fixed, but the educational sector, facing severe financial pressures, has a powerful lobby working against it. The financial pressures are real, but taking a free ride on educational publishers and authors is wrong.

What happened with educational publishing is a cautionary tale for Canada. It should not make the same mistake twice. The way to promote a strong AI industry, alongside vibrant content industries, is licensing, not loopholes. Building a robust AI/TDM licensing market is the way to get more Canada into the training data, not giving the AI industry a blank cheque to help itself to the proprietorial content of others. With voluntary licensing everyone benefits. AI developers get secure access to quality content; the creative sector is rewarded for its efforts and becomes a partner in developing responsible AI. It’s a shame that the Canada Research Chair at the University of Ottawa doesn’t understand this.

© Hugh Stephens, 2025. All Rights Reserved.

Poppy Day, 2025 (Willis Point, B.C. and Your Community)

Sign for Willis Point Community Centre and Fire Hall, indicating Remembrance Day service on November 11 at 10:45 AM, surrounded by trees and autumn foliage.

Around this time of year I usually write a post about Remembrance Day, throwing in some history of how the poppy came to be the symbol of remembrance of all those who served and all those who died in the First and Second World Wars but also in the series of wars that have taken place since, while making reference to some of the intellectual property controversies relating to the sale of poppies.

Earlier this week, we held a Remembrance Day ceremony at the Community Centre and Fire Hall in Willis Point, a small community about 20 kilometres north of Victoria, B.C. where I am fortunate enough to live. I am happy to report that we had a larger crowd than ever.  About 75-80 people were there which, out of a community of 400, represents a 20% turnout of the entire population. Pretty damned good. The brisk, sunny autumn weather no doubt helped. We have no cenotaph as the community was not established until the mid 1970s, being just a collection of fishing cabins accessible only by water until the road was put through. However we have a Firehall and an active Volunteer Fire Department with a flagpole that serves just as well. A retired naval officer played the Last Post (beautifully), followed by the flag lowering, readings from Laurence Binyon’s “The Fallen”, a reading by a local high school student of John McRae’s moving poem, “In Flanders Fields”, the laying of the wreath by a uniformed officer of the Royal Canadian Navy, who fortuitously happens to also be a local resident. The Fire Department controlled the road. Then we all went inside for refreshments (use your imagination), displays of military memorabilia, and neighbourly chit chat.

A service member in uniform plays the trumpet during a Remembrance Day ceremony, with a wreath decorated with poppies in the foreground and a gathering of community members in the background, surrounded by trees.

Similar ceremonies took place at 11 am on November 11 in communities large and small across Canada, the UK, other Commonwealth countries and at Veterans Day events in the US. In Canada, after years of declining attendance, the crowds seem to be increasing, including at Willis Point. Perhaps the recent rising spike in Canadian nationalism, (driven in large part by Donald Trump’s 51st state nonsense), and the significant contribution that Canada made in the two great conflagrations of the 20th Century is a factor. Poppies were ubiquitous at our ceremony. No newscaster or politician in Canada can appear on air or in public without wearing one. I am sure that each minister has a designated poppy assistant whose task it is to replenish the lapel of the minister each time the poppy falls off, as it inevitably does.

This year a quick search of the internet did not turn up any of the usual stories about people selling “unauthorized” poppies, especially through online marketplaces, although they could easily be found with a quick Google search. The sponsored Remembrance Day poppy listings on my computer were from Etsy, Poshmark Canada, Ali Express and eBay. The eBay item appeared to be a genuine Royal Canadian Legion poppy, on sale for $4.50 (of which $2 was apparently going to be a donation to the Legion) but when one added the cost of shipping by Canada Post at $18.26 for delivery in 10 days, I doubt if the seller had many takers. I did notice one news report about Legionnaires selling poppies at a municipal polling station in Quebec being asked to leave because you cannot solicit people in a voting lineup. They were obviously a bit too eager to go after that captive audience. However, the Legion would be quick to say that it never “sells” poppies; it makes them available for a donation. And that donation is to a good cause, supporting various veteran’s welfare activities.

That is surely the reason why in both Canada and Britain, the Legion, (Royal Canadian and Royal British Legions) have trademark rights to commemorative poppies, in theory restricting their sale to these two organizations. They also both operate authorized retail outlets selling poppies, the Poppy Store in Canada and the Poppy Shop in Britain. Just about anything you might need with a poppy on it, they are likely to have. So shop where your purchase will do the most good.

In the US, I am told that poppies are usually worn on Memorial Day in May. Both the Veterans of Foreign Wars (VFW) and the American Legion produce poppies. The VFW markets its “Buddy Poppy” through its site and has trademarked the name Buddy Poppy. According to the VFW, the Buddy Poppy program provides compensation to those who assemble the poppies, provides financial assistance in maintaining state and national veterans’ rehabilitation and service programs and partially supports the VFW National Home. The American Legion promotes US Poppy Day, which will be on May 22, 2026. Indeed, it was an American woman, Moina Michael, who campaigned to make the poppy the international symbol for remembrance of Allied war veterans, and to use their sale for veteran’s welfare. Through her efforts the poppy was adopted as a common symbol of remembrance in the US, Britain, Canada, France, Australia, New Zealand and probably elsewhere. You can read about her, and some of the controversies surrounding the sale of Remembrance poppies in my original 2019 post here.

As for Willis Point, we will thank all those who contributed to the successful ceremony this year and look forward to doing it again next year.

© Hugh Stephens, 2025.

AI Training and Nurturing Cultural Industries in Asia: Finding the Right Balance

Text and Data Mining (TDM) Exceptions and Compulsory Licensing Solutions Carry Heavy Risks

A scale balancing two labeled blocks, one marked 'TDM' and the other marked '©', representing the debate between Text and Data Mining and copyright.

Text and data mining (TDM) is a hot topic in many countries. In jurisdictions where exceptions to copyright protection are embedded in legislation rather than determined by the courts on a case-by-case basis (as in the US), TDM has become a favoured vehicle of AI developers, although compulsory licensing has also been floated by some as a potential solution. AI developers see TDM as a loophole allowing access to copyright protected works for algorithm training without payment or permission. Compulsory licencing would establish a statutory regime requiring rights-holders to provide access to their content upon payment by users. While seemingly offering a middle ground, it is fraught with problems. Meanwhile, content industry stakeholders have been vocal on the need to protect their intellectual property, while in some cases resorting to legal action.

TDM has been on the front burner in the UK, Australia and Canada, and Asia is facing many of the same issues. From India to Malaysia to Japan, and from Korea to Hong Kong to Singapore, access to copyrighted content for AI training is front and centre although being played out in different ways. Some countries already have instituted limited TDM exceptions while others are reviewing options. In India, which has long used compulsory licences in the patent field, and which has provision for compulsory licences under certain narrowly specified circumstances in its Copyright Act, both TDM and wider compulsory licensing are being pushed by the AI industry. A common thread in all countries is the concern by rightsholders that their valuable proprietorial content is being or may be taken and reproduced to provide training inputs to a commercial process without authorization or compensation. These concerns are not misplaced.

Compulsory licensing is a “solution” (actually opposed by many in the AI industry who believe that all content should be “free”) that strips away the rights of content owners to determine how their valuable intellectual property will be used. In effect, it is a form of expropriation. While compulsory licences may set a price for use (which may or may not be seen as fair), they don’t address other issues that are normally included in licensing deals such as how the work is to be used, or any specific limitations related to the content. There is also the difficult issue of equitably distributing collected funds.

Voluntary licensing where rights-holders can opt-in is a fairer and more feasible solution, offering mutual benefit to both the content and AI industries. A growing voluntary licensing market exists for print, AV and music content—but AI developers have been slow to respond, a key reason being the mixed signals they are receiving from various governments. Rather than negotiate, the AI industry would rather push for a broad exemption legalizing the practice of helping themselves to protected content owned by others. The pretexts advanced are either a) they are not really copying (just turning content into data tokens is the argument) or, b) if they are, they should be allowed to continue doing so in the name of “innovation”. There is also the implicit threat that if laws and regulations are too protective of the creative sector, AI development funds will go elsewhere, to more compliant jurisdictions.

This argument does not hold water as many factors go into making investment decisions regarding facilities such as data centres, notably the availability and cost of talent, land, power, etc. It is worth noting that while Malaysia does not have a TDM exception in its copyright law (whereas Singapore does), investment is pouring into Johore Bahru–just across the causeway from Singapore–because of Malaysia’s relative competitive advantage in input costs. The AI industry’s “fear factor” threatens to start a race to the bottom as governments around the world don’t want to be left behind as the AI race heats up. While it is clear that AI will transform some industries and has the potential to increase productivity in many areas, it may lead to more job losses than gains whereas the cultural sector is both a key economic driver in all the Asian economies in question and an important pillar of national identity.

India

India is a good case in point. It is a well known cultural and technological powerhouse with a  creative economy that was estimated by WIPO to be valued at over $30 billion (USD) in 2023, with 20% growth in creative exports generating over $11 billion. Prime Minister Modi has called on the creative sector to further increase its share of GDP. Yet the TDM issue has raised its head in India, especially after OpenAI was sued by several Indian media entities for copyright infringement. In May Reuters reported that the Ministry of Commerce had set up an expert panel to examine the AI training issue. Both domestic and international content industries in India are concerned that creation of a TDM copyright exception or widening of compulsory licensing in India’s copyright law will undermine the incentive to create new content, and stall the development of a voluntary licensing market for AI training. Careless implementation of TDM or bringing in a misplaced compulsory licensing regime risks throwing out the baby with the bathwater.  

Malaysia

As in India, AI industry lobbyists in Malaysia have called for implementation of a TDM exception. The case of neighbouring Singapore is often cited, but Singapore is a particularly poor example to follow. Singapore’s overly-broad TDM exceptions, referred to locally as exceptions to facilitate “computational data analysis”, combined with severe limitations on use of contract law to control access to copyright protected works, have weakened Singapore’s creative sector and held back the development of licensing options. There is no need for introduction of a TDM exception in Malaysia. Kuala Lumpur can distinguish itself by offering an appropriate balance between AI development and fostering important cultural industries, encouraging the development of a mutually beneficial licensing market. Its other attributes have helped it to successfully attract significant high-tech investment without undermining its investment in content creation.

Japan

Japan, which has a TDM exception in its copyright law, is often held out by AI developers as a model for the kind of copyright law they would like to see replicated elsewhere, but the impression that anything goes in Japan with respect to use of copyrighted content is mistaken and based on misunderstandings. As I outlined in a blog post last year (Japan’s Text and Data Mining (TDM) Copyright Exception for AI Training: A Needed and Welcome Clarification from the Responsible Agency), Japan’s TDM exception does not apply if the user of the copyrighted data “enjoys” the content. As an example, this means that if a user derives benefit through using the copied material to create outputs based on the reproduced content, the TDM exception does not apply. As this website succinctly puts it, “Expressive intent invalidates the safe harbour.” As is the case elsewhere, the limits of the law are being tested in court. Yomiuri Shinbun, Japan’s largest paper, as well as Nikkei and Asahi Shinbun, are suing Perplexity AI for copyright infringement in Tokyo District Court. Meanwhile a market for licensing content is beginning to develop.

Korea

Korean content companies are also turning to the courts for redress against unrestricted copying by digital platforms. Korea’s three terrestrial broadcasters, KBS, MBC, and SBS filed suit in January against Korean tech giant Naver claiming the platform used their news content to train its AI application. The broadcasters had earlier put Naver on notice not to use their content without permission. Naver is, broadly speaking, the Korean version of Google. It has recently been reported that more lawsuits are pending against Naver, this time from the Korean Newspaper Association.

Korea does not have a TDM exception in its copyright law, but it has (at least in theory), adopted the US fair use doctrine as a result of the US-Korea Free Trade Agreement. However, although fair use was incorporated into Korean law in 2011, its has seldom been used and the Korean courts have been very reluctant to apply it, and where they have, the application has been very narrow, essentially limited to non-commercial use. To date there have been no fair use cases brought to the Supreme Court, and lower courts tend to rely on the specified exceptions that apply in Korean law. Because of this there have been attempts to introduce a TDM exception, and more are expected in the current National Assembly. Various versions have been proposed that are of concern to rightsholders, including broad interpretations that would not distinguish between commercial and non-commercial use. Korea, one of the cultural giants in Asia, needs to tread carefully if it wants to maintain this leading cultural export, while encouraging development of content licensing.

Hong Kong

Hong Kong does not have a TDM exception in its current copyright law but under pressure from the AI sector is considering the idea. The Intellectual Property Department launched a public consultation late last year, receiving input from stakeholders representing both sides of the argument and has come forth with recommendations to the legislature (Legco). It has proposed a TDM exception for both commercial and non-commercial use but with a number of limitations; 1) access to content must be lawful (i.e. no use of pirated content); 2) a public record must be kept of copyrighted works used in AI training (transparency requirement); 3) the TDM exception will not apply where licensing schemes (i.e. licences that have been issued by the Copyright Tribunal) exist; and 4) rightsholders can reserve their rights by opting out.

There are problems with this proposal, despite the limitations. Requiring rightsholders to opt-out stands the existing basis of copyright on its head, as it has in the EU (i.e. users normally need to obtain permission from rightsholders in advance) while the licensing provision provides limited relief.  While not as potentially destructive as some proposed TDM exceptions elsewhere, it is questionable if Hong Kong needs a TDM exception given that voluntary licensing alternatives are increasingly available. At present, the recommendations are with the Legco; given public skepticism about the proposal, legislation is not expected until 2026 at the earliest.

Conclusion

Lawmakers and regulators in Asia are grappling with a common problem; how to incentivize the development of responsible AI while continuing to encourage and promote all-important content industries. Cultural expression is particularly important in Asia as an expression of values, and throwing the cultural sector under the bus in the hopes of attracting some ephemeral hi-tech AI jobs is a false bargain. It’s like eating the seed grain from which the bounty of cultural creativity springs. Undermining the nurturing environment provided by sound copyright protection, whether through compulsory licensing or creation of TDM exceptions, is bad public policy.

Strong cultural industries enable the development of strong content licensing markets for AI development, enabling a virtuous circle of further creativity. A strong cultural sector and strong, sustainable digital industries, especially those powered by AI, go hand-in-hand. Asian regulators need to exercise prudence and weigh the consequences of rash action. The winners will be those that find the right balance between encouraging innovation and fostering creativity.

© Hugh Stephens, 2025. All Rights Reserved

The Online Streaming Act: Dealing with US Industry Concerns (The Cancon Factor)

A vintage television set displaying the Canadian flag.

Image: Shutterstock

Last month I wrote about the spectre of US trade retaliation against measures impacting or possibly impacting US streaming services as the Canadian Radio-Television and Telecommunications Commission (CRTC) proceeds with implementation of the Online Streaming Act (formerly Bill C-11). The Computer & Communications Industry Association (CCIA), a US trade association that includes, among others, Amazon, Google, Meta and Apple, has taken aim at this process, claiming it is discriminatory and violates Canadian commitments under the CUSMA/USMCA, the trade agreement that replaced NAFTA. A core element of CCIA’s argument is that the very concept of Canadian content (Cancon) is discriminatory because it violates Article 19.4 of CUSMA which calls for “national treatment” of a digital product;

“No Party shall accord less favorable treatment to a digital product created, produced, published, contracted for, commissioned, or first made available on commercial terms in the territory of another Party, or to a digital product of which the author, performer, producer, developer, or owner is a person of another Party, than it accords to other like digital products”

What is Article 19.4 intended to cover? As an example, if rules are imposed prohibiting digital products from causing harm to children, the same rules should apply to both domestic and foreign products. However, do special requirements regarding Cancon audiovisual or music products (such as airtime quotas on radio or possible “discoverability” requirements for streamers) constitute discrimination against US digital products? Maybe. Is all music and AV content fungible or is Cancon somehow different, i.e. not a “like digital product”? If Cancon is “different”, what is it that differentiates it? That is not an easy question to answer because of the many criteria that go into determining whether a product is considered Canadian for regulatory purposes.

I took a stab a couple of years ago at explaining how Cancon is defined (“Unravelling the Complexities of the Canadian Content (Cancon) Conundrum”). For AV products, it is basically a combination of four elements; production control, copyright and distribution rights, creative positions and production spend. The CRTC definition and the definition used by the Canadian Audio-Visual Certification Office (CAVCO), which distributes certain tax credits, are slightly different with the latter being more stringent. For music there is the MAPL system. As explained by the CRTC, to qualify as Canadian content, a musical selection must generally fulfil at least two of the following conditions: M (music): the music is composed entirely by a Canadian; A (artist): the music is, or the lyrics are, performed principally by a Canadian; P (performance): the musical selection consists of a live performance that is recorded wholly in Canada, or performed wholly in Canada and broadcast live in Canada, and L (lyrics): the lyrics are written entirely by a Canadian. The CRTC is proposing that the “P” criteria be dropped owing to changing patterns in the music industry, notably the many Canadian artists recording outside Canada, such as in Nashville.

Qualifying as Cancon is complicated, but it has value. Cancon certification provides access to various subsidies and funds as well as providing a product that meets airtime and broadcast obligations, where and when they exist. In the aftermath of the enactment of the Online Streaming legislation, a key question is whether streamers (like broadcasters) will be required to meet certain content quotas, if indeed it is even feasible to impose content quotas on streamers. The different delivery model, where it is the consumer who “pulls” content from a broad menu rather than a broadcaster who “serves up” a given offering, makes it almost impossible to impose content quotas. Theoretically, you could require a streamer to make available a specified inventory of Cancon, or even to promote Cancon (referred to as “discoverability”), but there is no way of making consumers actually watch or listen to Canadian productions. Trying to apply a 20th century broadcast model of regulation to 21st century streaming is not a good fit. Regulators around the world are grappling with this reality. One of the arguments for imposing an expenditure requirement on streamers, both domestic and international, to support the creation of Cancon is to compensate for the lack of applicability of content quotas in a streaming environment.

A core feature of certified Cancon at present is that it cannot, by definition, be produced by a non-Canadian regardless of whether all the creative talent (writers, directors, performers, designers, composers etc.) and production spend would otherwise meet Cancon criteria. There is a complicated formula that awards points for creative roles filled by Canadians, with a specified number of points required to qualify under different programs.  The fact that a non-Canadian production may be a Canadian story filmed in Canada with Canadian actors is irrelevant with respect to Cancon certification. In short, the colour of the money (the production company) is a determining factor. Additionally, under CAVCO rules, a foreign studio or producer cannot hold the intellectual property, (the copyright) in a Cancon production. A Canadian production company must be the copyright holder for all commercial exploitation purposes for a minimum of 25 years.

As part of implementing the Online Streaming Act, the CRTC was instructed to review the definition of Cancon. The Commission subsequently held public hearings in which ownership of copyright became a key issue. Opinions ranged from expanding the CAVCO requirements to all forms of Cancon to eliminating copyright ownership as a factor. The streamers, who now have (contested) financial obligations to fund Cancon, generally prefer to own copyright in productions. It is not a surprise that they object to being required to fund Cancon productions while being denied the opportunity to own and exploit the rights. Supporters of a more restrictive Cancon definition point out that foreign streamers are free to license Cancon qualifying productions from the Canadian rightsholder. However, a restrictive definition tied to financing and copyright ownership eliminates the possibility of direct financing by foreign streamers and could mean they would in effect be paying twice, first by contributing to the Fund that financed the production and second, by paying to acquire the rights. Moreover, there is no guarantee that the rights would be available on acceptable terms.

Those advocating for a comprehensive Cancon definition that includes financing and IP ownership as factors argue this is necessary to create and maintain a viable Canadian industry. But such restrictions have two effects. First, if copyrights must be retained, this removes from Canadian producers/rightsholders the ability to sell the rights at a time of their choosing (and possibly use the funds to produce more Cancon). Not all productions will have a sustaining revenue stream over time. It should be left to the producer to judge whether to cash out now or license the product while retaining ownership. Second, requiring that the producer be Canadian for a production to be certified as Cancon disincentivizes foreign streamers from self producing content showcasing Canadian stories, artists, locations etc. They can do so but are denied all Cancon credit for such productions. The cost of such productions does not count against their required financial contribution (currently 5% of revenues) nor does the production qualify as Canadian content in terms of meeting existing (or possibly future) content quotas. If a goal of Cancon policy is to promote expressions of Canadian culture through creation of financially viable productions, disincentivizing foreign producers from putting their toes into the Cancon lake makes no sense. Production of Cancon by global enterprises like the streamers will help ensure global distribution, meeting both cultural projection objectives as well as exposing Cancon to new markets.

There is also the question of subsidies provided to producers of Cancon. Under current definitions, the US studios are not eligible to access funds earmarked to produce Cancon (even though they are required to contribute to these funds). This could be dealt with giving foreign studios “contribution credit” for self-financed Cancon productions. It’s worth noting the studios are already offered generous subsidies–euphemistically referred to as tax credits–to undertake non-Canadian production in Canada, and no-one complains about that, except Donald Trump. Trump has been rattling the chains over so-called “runaway production” and has threatened to impose tariffs on movies made outside the US.

While I think many of the concerns of the foreign streamers could be addressed through a more flexible definition of Canadian content, I am not confident the CRTC will see it this way given the policy instructions it received from the government at the time the legislation was proclaimed. Can it comply with this guidance while not painting itself into a CUSMA corner? The Commission is directed to take international commitments into account, although there is no specific reference to CUSMA, only the 2005 UNESCO Convention on Cultural Diversity.

From my perspective it is not realistic for US streamers to expect a free ride (and they probably don’t) but Canada and the CRTC need to avoid being too greedy. They should also be flexible in defining Cancon, focussing more on the promotion of Canadian stories, music and talent and less on maintenance of an industrial policy that relies on protectionism for a favoured few. A policy that calls on foreign streamers to invest in Canadian creativity, given the revenues that they generate in Canada, is not unreasonable; denying them the ability to take a direct ownership stake in the products to which they contribute funding would be short-sighted. The policy straitjacket that exists with respect to Cancon sets up a search for draconian solutions, like the CCIA’s threats. In short, remove the Cancon handcuffs and keep the required contributions reasonable. Give credit for funds expended on content that meets Canadian artistic and cultural criteria. I think this would help blunt the frontal attack from US audiovisual streamers. Music is more complicated. Meanwhile, Canada needs to be careful not to negate any trade obligations it has taken on and avoid being forced into the Article 32.6 “cultural exemption” corner. 

But wait, I have an idea! If all else fails, there is also CUSMA Article 32.2 (b). “Nothing in this agreement shall be construed to…. preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to …the protection of its own essential security interests.” If Donald Trump considers that importing kitchen cabinets from Canada threatens the national security of the United States perhaps it is not such a stretch to conclude that the preservation of Canadian culture (whatever that is) is just as essential to Canada’s national security, justifying any measures one chooses to employ. Is this a serious option? You decide.

© Hugh Stephens, 2025.  All Rights Reserved.

In writing this opinion piece, I have drawn on my background both as a former Canadian government official who has had some dealings with international trade issues over the years, as well as past experience as an executive with one of the US companies which, at the time, controlled a major Hollywood studio. (Time Warner). However, whatever “solutions” I have proposed to address US industry concerns regarding Cancon are mine alone. I hope they are a useful contribution to the debate, but I want to be clear that I do not speak for the CCIA or the streamers.