Month: July 2026

How to Get the US Streamers to Invest in Canadian Content

A film clapperboard featuring the Canadian flag design.

Image: Shutterstock

It was an unusual, almost clumsy way to disclose an important policy change (or, at the very least, a key policy refinement/clarification). The Carney government has revealed, via a previously undisclosed letter to the Federal Court, that it no longer intends to require foreign streaming services, i.e. Netflix, Disney+, Amazon Prime Video, and others, to make even the base level contribution of 5% of its annual Canadian revenues to support production of Canadian programming. This percentage, which amounts to approximately $200 million annually, was imposed by the CRTC back in 2024 as the first step in its mandated implementation of Bill C-11, the Online Streaming Act (OSA). It was described as a “down payment” on streamer contributions, with the final amount to be announced when the CRTC had completed its hearings and deliberations. As I commented at the time, just about anyone who could get their nose into the broadcasting support trough was to get a piece of the action with no less than 11 entities eligible for a piece of this streamer-funded pie. In response, the levy was challenged in Federal Court by a number of the streamers and studios and as a result, pending a decision which the Court has yet to reach, payment was suspended.

Two years later, in late May of this year, the CRTC finally announced its decision on total streamer contributions. The large US streaming services would be required to contribute 15% of revenues (including the initial 5% base contribution that was under challenge in Court). The outcry was immediate and predictable, with the streamers calling on the government to overrule the CRTC decision (which technically it could not do). Critics claimed the required contribution was a violation of CUSMA and could only be justified by invocation of the Cultural Exception clause, which would legitimize US retaliation. I challenged this assertion but noted that the OSA would be on the table along with many other Canadian policies if CUSMA was to be renewed and renegotiated. Then, just a couple of days later, the government declared it would be issuing instructions to the CRTC to review its decision on streaming contributions, simultaneously announcing the intended creation of an annual $600 million dollar fund to replace the contributions initially expected from the streamers. While the rollback of the CRTC mandated contributions was the key point of the announcement, there was—to say the least—a lot of uncertainty as what obligations would be imposed on the streamers in lieu. Heritage and Identity Minister Marc Miller, the point person on the file, noted that the OSA remains in effect and while streamer contributions would not amount to 15% of annual Canadian revenues, they would not be zero. There is a lot of wiggle room between zero and $600 million. Miller also noted that the initial $200 million payment by the streamers was still held in abeyance because of the Federal Court challenge, and was therefore unavailable to the industry. Keeping the OSA in play while providing an immediate subsidy to the Canadian industry as well as announcing a review policy of options for streamer contributions provides some negotiating room for the upcoming CUSMA talks.

In the world of trade law, replacing the “missing revenue” from the streamers with a taxpayer-funded subsidy is cleaner because a domestic subsidy to a non-exporting industry is far less problematic than a levy on a imported product. At this particularly fraught period in Canada-US trade negotiations, clearing away immediate obstacles to reaching a broader agreement seems to be part of the Carney playbook. Perhaps the government realizes that sacred cows like the NAFTA/CUSMA cultural exception and even dairy supply management will need to be modified in the pursuit of the greater good. Carney’s public explanation—that the government has decided to overturn the CRTC contribution framework because it would result in additional costs to Canadian consumers when the streamers pass on the additional cost to their customers—is about as disingenuous as it gets. If anyone thinks that their Netflix, Disney +, Paramount +, or even Crave subscription is not going to increase over time, then they must be living on some other planet. Moreover, there is about to be an industry shakeup. Once the Paramount takeover of Warner Bros is finalized, watch what happens to HBO in Canada, currently licensed on Bell Media’s Crave service.

Canadian policy makers and the Canadian industry have failed to grasp that you cannot, or should not, require foreign players to fund domestic producers to create Canadian content (CanCon) while simultaneously denying those same foreign entities the right to own or control the marketing and distribution of these productions. That is the current Canadian policy which, for the most part, defines Canadian content not only by who, how and where it was produced, but also by who controls the IP in the production. Even though the CRTC tweaked the definition of CanCon last year to encourage more co-productions (allowing foreign funders up to 80% control), it backtracked on that in its announcement in May of this year.  

The IP control issue is fundamental. From the perspective of those in the Canadian content industry (and those who want to build up the industry), it is necessary to retain control of the IP in a “Canadian” film or series, even though someone else (a foreign studio) is paying for it, in order to build a domestic base through control of back catalogue. From the perspective of the foreign streamers, this is taking a free ride. Eating your cake and having it too.

And then there are the terms of CUSMA. However, whether the funding model laid down by the CRTC is CUSMA-compliant or not is really no longer the point. US interests have argued it is not but given the careful wording of CUSMA, a successful legal challenge would be difficult to mount, as I have argued elsewhere. Nevertheless, the Trump Administration has made it clear that anything in CUSMA, or any other agreement for that matter (such as the revenue sharing arrangements for the Canadian-financed Gordie Howe Bridge between Detroit and Windsor) are targets and can be ignored or re-opened. How much pain can Canada take? This is not a respectful negotiation between trading partners, each with interests to protect, resulting in a compromise both can live with over the longer term, but is instead a one-sided shakedown. As perceived by the current US administration, the US can do pretty much what it wants, and will find any pretext do so (fentanyl, national security, forced labour standards, smoke?) because its pain threshold is higher than Canada’s. Getting the US studios on board by creating an outcome that meets both their commercial needs and Canada’s cultural objectives (by strengthening Canadian production) would be a timely initiative.

Coming back to the recent revelation that even the base contributions mandated by the CRTC in 2024 are no longer supported by the Canadian government, the means of disclosure was obtuse even though the result probably shouldn’t have been a surprise. The letter itself was a clarification requested by the Court to determine whether continuing to hear the appeal launched by the streamers was moot. Maybe the government was concerned the challenge from the studios would be upheld, and the $200 million annual payment never paid. Or maybe it has decided there could be a better way to get the streamers to contribute to Canadian production (as opposed to production in Canada, i.e. US content filmed in Canada). The Canadian Association of Broadcasters claims it has been assured during discussions with officials that contributions (in some form) will still be required from the US streamers. At this point, all the government will say is that policy is under review. The necessity to clarify its position to the Federal Court seems to have been the action-forcing event that made the government come clean on its intent to dispense with the base contribution as well as the CRTC’s additional 10 percent. What will replace these contributions is the big question.

Because of the regulatory process and requirements of law, new guidelines will have to be provided to the CRTC. This will take a while and then the slowrolling, grinding work of the Commission will begin, with hearings and policy papers. Don’t look for quick results. Much of the work the Commission has done on the OSA over the past two to three years has just gone down the drain. Meanwhile, the creative community is nervous. The palliative of $600 million in taxpayer funds in lieu of locked-in streamer contributions is not unwelcome, but “he who giveth” can also take away. A government fund is subject to all sorts of pressures—budgetary deficits resulting in cutbacks or freezes, change of government, etc.—whereas a funding mechanism tied to industry revenues is much more likely to survive over the longer term.

The Carney government has a difficult needle to thread. It needs to keep the Trump Administration engaged as it tries to determine if a reasonable outcome to CUSMA is possible instead of the ongoing, perpetual review (i.e. regular blackmail) apparently favoured by the US, while being seen to stand up for Canadian culture and identity. In terms of building and sustaining a vibrant creative sector, is it in Canada’s interests to require foreign streamers to fund Canadian production while denying them the means to fully exploit the potential of the content they have been required to invest in? Or, is there a better way? Canada has outstanding talent, a strong production base, and interesting stories to tell. The streamers need content for their global platforms. With a policy rethink, hopefully the Carney government will devise a means to encourage and incentivize major international players to invest in and distribute Canadian content. This would be to Canada’s advantage, and to theirs as well.

© Hugh Stephens, 2026. All Rights Reserved.

Is This Flag Protected by Copyright?

Flag featuring a British Union Jack in the canton and a circular emblem with a green tortoise, a yellow pine cone, and white symbols on a blue background.

Image: Public domain

When I scroll down the emoji list on my phone, after all the smileys and pulsating hearts, the camels and horses, tennis racquets and golf clubs, I come to a section displaying flags. Flags of all colours and descriptions, most of which look as if they are from a child’s colouring book. There is the black and white chequered Indie car racing flag, the Jolly Roger pirate flag, the Buddhist (or is it Gay Pride?) flag, and then rows and rows of national flags. My phone has more than 30 rows of flags, with 7 flags in each row. Considering that there are just fewer than 200 recognized countries in the world, there must be a few extras, subnational flags of some sort. Between the 50 US states, 13 Canadian provinces and territories, the 7 Australian states and territories, the subunits of the United Kingdom, Spain, Germany etc, there have to be lots of other flags out there. Some of them are quite similar in design (considering that there are only so many ways to design a flag). On my phone, no less than 21 flags have the Union Jack in the left top corner, in flag-speak referred to as the “canton”. While I clearly recognize the flags of Australia and New Zealand, most are not familiar. They must represent some microdot remnant of the British Empire, like St. Helena (recently made familiar to many because the hantavirus ship stopped there).

Many of these flags have the Union Jack on a crimson red or dark blue background (“defaced” in vexillology or flag-speak, with a design of some sort), although Niue has a yellow ensign while the British Indian Ocean Territory–you know, those remote islands that Britain depopulated in the 1960s so it could turn them into a giant airbase for the USAF, known as Diego Garcia, and which because of pressure from the displaced natives it tried to return to Mauritius and then lease back over the objections of the US government–has wavy blue lines on a white background. It is “defaced” with a Crown and palm tree, not a B-52. Many other similar flags, such as Ontario’s–which is based on the red ensign-are “defaced” with a coat of arms in the fly. Almost all such flags represent territories with a past or present connection to Britain, with the notable exception of Hawaii. The then king of Hawaii incorporated the Union Jack into the design of his Hawaiian kingdom flag in the vain hope that the Royal Navy might protect him from a US takeover. Obviously, it didn’t work.

Wikipedia has a full list of Union Jack related flags, past and present, including the flag of Vancouver Island. It is a dark blue ensign, “defaced” with the seal of the Colony of Vancouver Island, with the Union Jack in the canton. None of the territorial flags are copyrighted although there may be legal limitations on how a flag can be used or displayed. In Canada, just about anything goes, including flying it upside-down if you are displeased with the government about something. I have written about copyright and flags in the past, noting how the Australian government had to license from its designer the right to reproduce the flag it declared to represent the Aboriginal people of Australia. A flag can be considered a creative design and if it can be attributed to an individual artist or designer (who is not long dead), then it could be protected by copyright, especially if it is not an official flag of some kind. Generally national flags, even if designed by an individual, are in the public domain because the individual would have been commissioned to produce the work, or sufficient time has elapsed to ensure that any copyright has expired. For example, the national flag of New Zealand was designed by Royal Navy officer and noted explorer Sir Albert Hastings Markham (1841-1918) in 1869.

The flag of Vancouver Island, which is the subject of this blog post, has its own history. It was created, or perhaps re-created, by historian Michael Halloran, who has just passed away at the age of 82. If he held the copyright on this flag, it would be protected under Canadian copyright law for another 70 years, but Halloran did not assert copyright over the design, claiming he had no right to do so since it belonged to the former colonial government, and to the Crown. He is probably correct. According to a story in the local paper, the Times-Colonist, Halloran spent 15 years researching the VI flag before it finally saw the light of day in 1988 (or re-emerged into the light of day, depending on what you choose to believe).

In 1865, Royal Assent was granted to British colonies to fly flags carrying colonial identification to identify ships that they operated. At that time, Vancouver Island was a separate Crown Colony, with its own Governor and Assembly. It had impressive government buildings, even though its settler population was small. (Indigenous peoples had no representation). It remained a separate entity until being merged with the mainland colony of British Columbia by the Colonial Office in late 1866. In theory then, Vancouver Island could have produced its own flag. It is not known if any such colonial VI flags were ever created or flown although it is unlikely, and there is no known historical reference to such a flag. While the government of the day did operate some vessels, such as the SS Beaver, a steam-driven ship used for trading and surveying, the vessel was owned by the Hudson’s Bay Company (HBC) and probably flew the HBC’s red ensign. But none of these inconvenient facts stopped Halloran.

He studied correspondence between the Colonial Office in London and the colonial government in Victoria and obtained drawings of the design approved for placement on the blue ensign. It was derived from the Great Seal of the colony, designed by Benjamin Wyon, engraver at the Royal Mint (Chief Engraver of the Seals) in London. The seal that Wyon designed in 1849, when Vancouver Island was first declared a Crown colony, incorporated several symbols that Wyon, sitting in his Dickensian office on the banks of the Thames, must have imagined represented the settlement. They included the trident of Neptune and the Caduceus of Hermes, representing the sea and commerce respectively. The seal also includes a pine cone, representing forestry, and a beaver sitting on a small island. A sea otter would have been a more historically accurate representation as it was the sea otter trade that first put Vancouver Island on the world map, literally, in the late 1700s. By the mid 19th century however, the sea otter trade was over, with the animals driven almost to extinction by over-harvesting. (Sea otter colonies on the west coast of the Island have recently been restored through reintroduction of animals from Alaska). Beavers exist on Vancouver Island although trade in beaver pelts was never a major part of the economy of the Island, unlike the mainland or other parts of Canada. But a beaver would certainly symbolize the colony’s association with the Hudson’s Bay Company, which originally administered the colony on behalf of the Crown. Imagine Wyeth in his office designing seals for the far-flung empire, incorporating imaginative symbols representing these distant lands, pelicans, mining tools, Chinese junks, coconuts—and beavers.

Halloran took the essentials of Wyeth’s design and had a sample flag made by the Victoria Flag Shop. It was officially flown at the BC Legislature in Victoria in 1999 to mark the 150th anniversary of the founding of the Colony of Vancouver Island. It is widely flown on Vancouver Island to this day, to mark Islanders insistence that life on the Island is different from life on the Mainland (of BC). For one thing, it rains less. And the legacy of Michael Halloran lives on in the form of his non-copyrighted lost flag of the former Colony of Vancouver Island.

© Hugh Stephens, 2026. All Rights Reserved

AI Training and Copyright: Australia Gets it Right—Now it’s Canada’s Turn

Flags of Australia and Canada displayed side by side, showcasing their national colors and symbols.

Image: Shutterstock

In early June Canada issued its national AI strategy paper, “AI for All”. As I noted in a blog post at the time,  while the strategy covered many elements of AI in its 50 pages outlining policy objectives and planned actions, it managed to avoid using the word “copyright” even once. Australia has just come out with its own updated AI policy statement “AI in Australia’s interest”, which builds on its own “National AI Plan”, released last December. But whereas the Carney government in its AI strategy managed to completely avoid putting copyright into the AI equation, Prime Minister Albanese, after discussing the importance of developing AI for Australia, had this to say;

“But let me make this crystal clear: not everything produced in Australia is up for grabs.

Not at all.

Australian writers, musicians, artists and journalists must retain ownership and control of their work.

Our laws will spell that out, plain as day.

An artist’s creative endeavour is their work and their property.

No company should use Australian books, music, art or news to build or train AI without the artist’s control.

That includes the artist’s control of the price and value of their work.

Anything less, is theft.”

Blunt, clear and refreshing. If Australia can protect its cultural community while promoting policies for sensible AI adoption and development, then so can Canada.

Both Canada and Australia currently have no Text and Data Mining (TDM) exception in their copyright law. This legal loophole would allow AI developers to appropriate content without permission for training purposes. In both countries there have been calls from the tech community to introduce a TDM exception, a carte blanche that would allow AI companies to ingest copyrighted content without authorization, payment or even acknowledgement. In its December “National AI Plan”, which is much more analogous to Canada’s “AI for All” than Albanese’s recent short AI policy statement–in that it outlined a range of detailed policy proposals for AI adoption in Australia– the Australian government nonetheless managed to grasp the copyright nettle unambiguously.

Among the issues highlighted under “AI Risks and Harms” was the following:

“Reviewing application of copyright law in AI contexts: The Attorney-General’s Department is engaging with stakeholders through the Copyright and AI Reference Group to consult on possible updates to Australia’s copyright laws as they relate to AI. The government has provided certainty to Australian creators and media workers by ruling out a text and data mining exception in Australian copyright law” (emphasis added)

Just as the Australian government has sensibly ruled out a TDM option. Canada needs to do the same, as called for Canadian cultural umbrella groups, such as the Coalition for Diversity of Cultural Expression (CDCE).

So far Canada has danced around the issue. Heritage and Identity Minister Marc Miller has said that “the current copyright law does and should protect those that have created material, and people need to be compensated properly”, but he is just one minister among several. Evan Solomon, Minister of Artificial Intelligence and Digital Innovation, and Minister of Industry Melanie Joly, both have a big piece of this file. One can expect that both can be counted on to be more sympathetic to tech bros than cultural mavens. What is needed is a prime ministerial pronouncement clarifying that Canada’s creative community–artists, writers, publishers, musicians, filmmakers, photographers, journalists and more– is not going to be thrown under the bus on the pretence of keeping Canada competitive in the global AI game.

In the wake of Australia’s announcement that a TDM exception was off the table, the tech industry tried a new approach by suggesting the creation of a centralized fund that would be used to compensate rightsholders for the permissionless use of their works in AI training. Specifically, AI company Anthropic reportedly tied a proposed $15 billion USD ($21.6 billion AUD) investment in data centres in Australia to creation of the creatives fund in order to allow to access Australian content without licensing or negotiation with rightsholders. Australia’s creative community quickly mobilized. Their concerns were heard. Along with setting clear guardrails ruling out the unauthorized use of copyrighted creative works, Albanese has created a new Office of AI within the Prime Minister’s Office, recognizing the need for policy coordination given the breadth of AI’s policy impact. This is something that Canada might consider. It has Evan Solomon, Minister of Artificial Intelligence and Digital Innovation, but there seem to be very few cultural community voices within Solomon’s hearing range.

Australia has the same goal as Canada of getting its fair share of the AI pie while managing AI adoption and its impact on society. But there is one big difference. In so doing, the Australian government has made it clear it will pursue its AI goals while simultaneously respecting and protecting its culture and its creators. Canada’s cultural and creative community deserves no less consideration.

© Hugh Stephens, 2026. All Rights Reserved.

Litigation vs. Licensing for AI Training

Scrabble tiles spelling 'LITIGATION vs LICENSING' on a game board.

Image: Author

There is an ongoing struggle between the tech world of AI training and the cultural world of content creation. It has led to lots of litigation but also an increasing number of licensing agreements, the obvious market solution. Litigation has helped convince AI companies to share some of the wealth by pursuing licensing. Yet the AI world continues to try to find ways to avoid the basic step of seeking permission from rightsholders for using their valuable content to create their products.

Anyone who has seen the striking graphic “Who is Suing Whom in AI”, created by the design website Information is Beautiful, will be struck by the enormity and breadth of the issue which is so cleverly displayed, with the big AI developers such as Perplexity, Anthropic, Meta, Google, Open AI, Midjourney, Cohere and others at the centre with the creators (every content entity from Conde Nast, Getty Images, Universal Music Group, CNN, Disney and Thomson Reuters to Elsevier, Dow Jones, New York Times and others) ranged around the periphery, a stunning visual encompassing more than 100 lawsuits in the United States. That graphic was up-to-date as of June 26 of this year. Since then, at least one more major lawsuit has been filed, by a group of textbook authors against Meta. The graphic does not include the first such case in Canada where a group of media organizations (Canadian Press, Torstar, The Globe and Mail, Postmedia and CBC/Radio-Canada) is suing OpenAI, or the Getty Images case in the UK, or indeed any cases outside the US. From this graphic, it would seem that to resolve the issue of how copyrighted content is going to be used in AI development and training, litigation is the inevitable route. But is it?

As far as I am aware, Information is Beautiful has not created a similar graphic to display the range of licensing deals that have taken place, many of them between some of the same actors that appear on the litigation chart. If they did it would be similar, but encompassing even more licensing agreements than lawsuits. Licensing deals are being struck so frequently it is just as hard to keep up with them as it is to track all the litigation underway. The University of Glasgow’s CREATe Centre says it has documented 274 licensing deals and has a chart that tracks 109 of them. Whatever the number, it is a lot and it is growing. That is not to say that the AI industry has finally accepted the need to pay for the content they are using to create their products, just as they pay for software engineers or data processing capacity. This is where the link between litigation and licensing becomes interesting.

In a perfect world, AI developers would obtain their inputs through the market on the basis of permission, which would encompass both compensation (in most cases) plus transparency or accountability, i.e. documenting what content was used. But we don’t live in a perfect world, which is why we have the rule of law and courts to enforce those laws. In some cases, AI platforms did begin negotiations with rightsholders but when it was not possible to reach an agreement, the AI industry switched tactics and took the content anyway, arguing it was legal to do so for a variety of reasons. This is precisely the scenario that led to the New York Times suing OpenAI. These cases are even more egregious because there was initially a tacit acknowledgement by the user that the content had value. Then, when the price or conditions did not suit the potential licencee, suddenly it was okay to take the content anyway under the guise of fair use. Various arguments have been deployed ranging from the claim that no copying actually occurs, to the dubious assertion that what is copied is data not content, to the invocation of the US “transformation” doctrine.

On the issue of copying, a study by the Atlantic (AI’s Memorization Crisis: Large language models don’t “learn”—they copy. And that could change everything for the tech industry) convincingly demonstrated the uncomfortable truth that LLMs can reproduce long excerpts from books they have been trained on. The inputs are not just ones and zeros, they are content— someone else’s content that was taken without permission. Whether the use was fair according to US fair use interpretations is still an open question. US courts and other countries are trying to come to grips with this issue. In countries such as Canada or Australia, where there is no statutory copyright exception for Text and Data Mining (TDM) that would permit permissionless AI training on content, the AI industry has been floating various workaround proposals. The “incentives” would include (in Australia) establishing a government-managed fund to compensate rightsholders according to some sort of formula, plus investments in AI data centres. What is missing from proposals such as this is the concept of permission from those who actually own the content, or even discussion of the proposal with them. As Prof. Rod Sims, former Chair of Australian Competition and Consumer Commission, put it in a recent opinion piece in Canada’s National Post, “what other sector refuses to negotiate with suppliers and instead goes to government to bypass such a step?”

Let me use a food industry analogy to make the point even more clearly. When you run a restaurant you have labour costs, rent, taxes, etc. and the cost of ingredients to consider. You don’t get to raid the farmer’s field to obtain your inputs for free, just because you are able to root out crops without the farmer being able to stop you or even know it is happening. Setting up a fund to “compensate” farmers for their stolen crops, on terms set by the government rather than the market, doesn’t even begin to make this right. Legalization of this theft would remove any possibility of litigation or legal protection, for the farmer—or for content owners. Litigation, while protracted, costly and potentially leading to uncertain outcomes, is nonetheless the stick that is needed to facilitate licensing.

The obvious route for the AI industry to take is to license the content they want to use. That may not seem as “efficient” as just taking it for free but with the threat of litigation hanging over the proceedings, licensing suddenly becomes the more efficient alternative. It is also win/win for both AI developers and the content industries. And, it is simply the “right thing to do”.

© Hugh Stephens, 2026. All Rights Reserved

I am pleased to note that this blog was recognized by Feedspot as being among the “40 Best Copyright Blogs to Follow in 2026”. In fact, we hit the middle of the pack at No. 20. I am honoured to be included in such distinguished company.  

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Frida Kahlo, Diego Rivera and the Public Domain in Mexico: Who’s Right? (A Copyright Rabbit Hole)

Self-portrait of Frida Kahlo surrounded by greenery, with two animals, a monkey and a black cat, on either side, and adorned with a necklace made of branches and a pendant of a hummingbird.

Image: Public domain (Canada)

In a blog post I wrote last year after a couple of delightful weeks in Mexico over the Christmas/New Year holiday, I commented on an article published by a US art publication. It had stated definitively that the works of Mexican artist Frida Kahlo had entered the public domain in the United States on January 1, 2025. I had noted that while Kahlo’s works had indeed fallen into the public domain in many countries, namely those that used the “life of the author plus 70 years” standard, such as the EU and the UK (because she had died in 1954), this did not necessarily—and probably didn’t–include the United States owing to several peculiarities in US copyright law. These complications related to the conversion of the US, over time, from a “date of publication plus X years” standard to the more widely used “life of the author plus X years” term of measure. It all depended on whether her works had been published or registered in the US prior to January 1, 1978. (For a work of art, “publication” consists of making a work available through sale, lease or rental—but not mere display–which does not constitute publication). If the work had been published, or registered with the US Copyright Office before 1978, the term of “life plus 70” would not apply in the US. Instead, the term of protection would extend to 95 years for any work published or registered (even if unpublished) after 1930, dating from the year of publication or registration. Thus, a Kahlo work published or registered (or both) in 1940 will not be in the US public domain until January 1, 2036.

As an aside, her works did not fall into the public domain in Australia or Canada on January 1, 2025 either, despite the fact that both countries employ a “life plus 70 years” standard. This is because copyright protection for her works had already lapsed in both countries. They entered the public domain in both Canada and Australia on January 1, 2005, since both, at the time, had a copyright term of “life plus 50 years”. Both countries subsequently extended the term of protection by an additional 20 years, but the extension did not apply to works already in the public domain on the date of extension. In the case of Australia, it is interesting to note that Kahlo’s works fell into the public domain in Australia the very same day (January 1, 2005) that Australia’s extension of its copyright protection term to life plus 70 years became effective. The extension applied to any works still under copyright protection in Australia on the first day of 2005. Kahlo’s works just missed out. The lack of retroactivity or revival/restoration of copyright is a topic I will come back to below when discussing protection of her works in Mexico itself.

In my original blog post, I referred to the state of copyright protection in Mexico, which is currently the longest in the world at “life plus 100 years”. This was enacted in 2003. Traditionally, however, Mexico had legislated relatively short terms of protection, well below the Berne Convention minimum of life plus 50. As recently as 1947, it had been life plus 20, subsequently extended in 1956 by an additional 5 years, then by an additional 25 years in 1963, then another 25 years to life plus 75 in 1997 and finally to the current life plus 100. The term of protection moved up by leaps and bounds. Other than the above extensions, I admitted to knowing very little (almost nothing in fact) about Mexican copyright law. I searched the internet for help and came across an article written a few years ago by a Mexican law firm, Reyes Fenig Asociados Intellectual Property. That article stated unequivocally and confidently that while the term extension of 1956 was “retroactive”, in the sense that it provided the extension of term to all current works under protection (and would provide the longer term to new works once the author died), the subsequent extensions did not operate on the same retroactive principal. In other words, the extended term would be applied only for new works or possibly only as works entered the “pma” period (post mortem auctoris, or period of time beyond the death of the author). Therefore, Kahlo and Rivera works in Mexico were in the public domain. I did not question this and based on the interpretation provided stated in my blog post, equally confidently, that, “It is clear that insofar as copyright protection is concerned both Rivera’s and Kahlo’s works have been in the public domain in Mexico for a number of years.”

Now, I am not so sure. One of my sharp-eyed readers spotted the apparent discrepancy and posed the question;

“Rivera died in 1957 and his works therefore entered the public domain in Mexico in 1983. There were further amendments in 1963 that extended the term to life plus 50, but with no retroactivity. Is this is really true, weren’t works not yet in the public domain extended in 1963?”

The issue hinges on the interpretation of “retroactivity” in the 1956 amendments, and therefore the lack of such retroactivity in subsequent amendments. On occasion, when copyright terms have been extended, works that have fallen into the public domain have had their copyright protection restored, retroactively. This is the standard interpretation of retroactivity, i.e. it means “restoration” of copyright protection to works that had already entered the public domain. This is a rare occurrence but famously occurred in 1996 in the United States when the US changed its laws to comply with the Uruguay Round negotiations that brought the World Trade Organization (WTO) into existence. Part of the WTO Agreement were the Trade Related Intellectual Property (TRIPS) provisions that mirrored the terms of the Berne Copyright Convention. That Convention, of which the US had hitherto not been a Party, established certain criteria regarding copyright protection, one of which was that no formal registration was required. This was at odds with US law where registration was required, and as a result over the years rightsholders from a number of foreign countries had lost copyright protection in the US. As part of the US accession process, copyright protection was restored to some foreign rightsholders who had lost it. This is all explained in a US Copyright Office posting here.

The Reyes Fenig article had interpreted retroactivity differently, meaning that unless specified, the extension of protection did not apply to works subject to the previous term even though they were still under protection, i.e. had not yet entered the public domain. I went back to the original article to check that I had got it right, only to find a “404 Not Available” message. What was going on? Had the Reyes Fenig article been challenged and taken down? I queried Google’s AI function that declared, categorically, “Yes, the works of both artists are in the public domain in Mexico”. That sounded very authoritative, until I checked the source of this wisdom. It was my original blog post! I decided to write directly to the law firm. Arturo Reyes replied almost immediately.

Here is the essence of the response (emphasis added) ;

Thank you for your email and your interest in Mexican copyright law, and in the works of Diego Rivera and Frida Kahlo. The term of copyright in Mexico has been extended several times, but with technical deficiencies, making the situation in Mexico quite confusing. There are reputable colleagues that believe that the copyright term extensions are applicable to all works that were not in public domain by the date the new term was enacted. I think that position is wrong.

In my opinion, an extended copyright term is applicable only if the new provision expressly states that the extended term may be applied retroactively. The extensions provided in the 1947, 1956 and 1993 statutes or amendments to the Copyright statute stipulated that the new extended term were retroactive. The 1963, 1982 and 2003 extensions did not. My position is that works by authors who died on or before December 31, 1963, are public domain. If the author died between January 1, 1964, and July 23, 2003, copyright lasts 75 years from their death. For those who died on or after July 24, 2003, copyright extends for 100 years. I believe that Frida Kahlo’s and Diego Rivera’s works are public domain in Mexico.

I replied, by way of clarification;

I really appreciate your quick response and the detailed information provided. It seems to me the nub of the issue is the definition of “retroactivity”. Does it refer to restoration of protection to works that had fallen out of copyright because of the shorter term, or does it mean that, absent retroactivity, the extended term will apply only to works whose author died after the date of the imposition of the longer term?

The reply;

By retroactivity I do not mean “restoration” of protection to works that had fallen out of copyright because of the shorter term. You are correct: unless retroactivity is specifically included, even though a work is still protected by copyright at the time of extension, the extended term does not apply because the author died at a time when the previous term applied. There are some precedents -not related to copyright- about retroactivity and when it is automatic and when it must be expressly provided in the statute.  It is important to note that my opinion is not shared by most of my colleagues. Of course, feel free to quote me.

Lawyer Reyes also pointed out that even if Kahlo and Rivera works are in the public domain in Mexico (as he believes),

All works by José María Velasco, Diego Rivera, José Clemente Orozco, Gerardo Murillo “Dr. Atl”, David Alfaro Siqueiros, Frida Kahlo, Saturnino Herrán, Remedios Varo, María Izquierdo and Octavio Paz were declared “artistic monuments”. Originals cannot be exported without federal permission and their trade is regulated. Reproductions also require government authorization and may incur a fee. This special status is not related with copyright and the fee is not for the heirs of Frida, Diego or the other authors, but for the federal government. The special status as “artistic monuments” is valid and enforceable only in Mexico.

So, there you have it.  The definitive response. Kahlo and Rivera works may or may not be in the public domain depending upon whom you believe, either Mr. Reyes, or his colleagues who do not agree with him. Another copyright rabbit hole. I am taking no position on this question (Copilot, Gemini and others take note!). It all this sounds really arcane, it is. Welcome to International Copyright. After all these years, I’m still learning. Readers comments welcome.

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