Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores.

As Creator’s Rights Face New Challenges, Canada Needs to Keep Pace with International Developments

Image by Greg Altmann/Pixabay

This blog post appeared first in Open Canada, the journal of the Canadian International Council, on November 20, 2023.

In the past few weeks there has been a flurry of activity with respect to international regulation of Artificial Intelligence (AI) such as the Bletchley Declaration spearheaded by UK Prime Minister Rishi Sunak, the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence signed by US President Biden, as well as the G7 AI Code of Conduct. Canada has been involved in some of these initiatives but will be affected whether or not it participates, including aspects of the AI issue dealing with protection of intellectual property, specifically creator’s rights protected through copyright laws. Indeed, there is a huge emerging issue related to whether the indiscriminate scraping of copyrighted content by AI developers to train their algorithms is legal under existing copyright laws, plus whether the output of content generated by AI can be legally protected under accepted copyright norms.

When it comes to copyright challenges today, Canada has just launched a public consultation on this issue (”Copyright in the Age of Generative Artificial Intelligence”) as part of the process of updating Canada’s copyright framework in the digital age. The implications of the extent to which AI and copyright are compatible illustrate the interdependent nature of national copyright protection regimes, notwithstanding the fact that each nation interprets and applies copyright law in slightly different ways. The key point here is that countries that are too lax in protecting their creative sectors could see their copyright-protected cultural industries suffer negative economic impact; countries that are overly protective could see investment in AI innovation flow to countries with lower copyright standards. Whatever international consensus emerges and whatever framework to regulate AI is developed, whether it be OECD guidelines or a more formal arrangement, Canada will need to be a party. Such is the nature of international issues these days, with respect to digital issues, copyright and intellectual property generally.

Canada is already bound by a number of international commitments with respect to its application of copyright, and these will undoubtedly have an impact on future and long overdue revisions to Canada’s Copyright Act. For example, the current international framework for protection of copyrighted works (books, films, music, performances, television and streaming content, broadcasts and other forms of copyright protected works such as software, paintings, drawings, photographs, etc.) is embedded in the TRIPS Agreement (WTO Agreement on Trade-Related Aspects of Intellectual Property Rights) that was a part of the establishment of the World Trade Organization in 1995. Canada, was of course, a party to TRIPS. With respect to copyright, TRIPS incorporates the terms of the Berne Convention, with the added benefit of a dispute-settlement mechanism to resolve disputes, something lacking in Berne. However, the WTO’s dispute settlement process is currently suspended owing to the inability to appoint new members to the WTO’s Appellate Body because of US opposition. The Berne Convention of 1886 (along with its periodic updates over the years) remains the bedrock of international copyright cooperation.

When it comes to copyright legislation, it is generally accepted that the first modern copyright law is the Statute of Anne, passed by the British Parliament in 1710. The stated purpose of legislation was for “the encouragement of learning”. For the first time it gave authors (or those to whom they assigned their rights) rather than printers the exclusive right to print or reprint their books. The period of protection lasted for an initial period of fourteen years. This provision was included in the US Constitution “to promote the progress of science and useful arts…”, again with an initial period of protection of fourteen years.

During the 18^th and most of the 19^th century, copyright laws were applied to nationals only of the country concerned or to works first published in a that country. Thus, British copyright applied in Britain (and the British Empire) to British authors but works by nationals of other countries could be freely reprinted in Britain unless first published there. The same applied in the US and other countries. Attempts were made to negotiate bilateral treaties under which reciprocal protection would be afforded the nationals the two countries concerned, but this resulted in a confusing patchwork quilt of protection. Eventually, under the leadership of the French novelist Victor Hugo, in 1886 the first international copyright treaty, the Berne Convention, was signed. Only eight countries ratified it initially, (Belgium, France, Germany, Great Britain, Italy, Spain, Switzerland and Tunisia). Notably absent was the United States which did not join Berne until 1989. Today, over 180 countries are members and some economies (like Taiwan, Hong Kong and Macao) that are not accessory states to Berne but are members of the WTO) also apply its terms.

When Britain joined Berne in 1886, the Convention’s provisions applied to all parts of the British Empire, including Canada, as Canada was not at that time a fully sovereign state. Nonetheless, copyright was a power conferred on the new dominion established in 1867 and in 1868 Canada enacted its first Copyright Act. This ambiguity led to conflicts with the imperial government, and on several occasions Canada tried to exit Berne, before acceding in its own right in 1928. Canada also tried to pass legislation favouring Canadian works over those from Britain, only to have the legislation vetoed by the Governor-General.

One of the issues was Canada’s desire to promote the Canadian printing industry. British works were protected by copyright in Canada but Canadian printers could normally not get printing rights from British publishers, despite the high cost of the imported British books. However, in the US, British works were freely printed without permission (“pirated”) because US copyright law did not protect British works. Canadian booksellers, instead of importing the expensive British editions of Charles Dickens and other British writers, would import the much cheaper pirated US editions. This was technically illegal, but the border was long and leaky. British publishers tried to pressure the British government to lean on Canada to block importation of their works printed in the US, but with limited success.

Just as British works were not protected in the US, nor were US works protected in Britain or other countries such as Canada. Thus, Canadian printers freely reprinted Canadian editions of US works by writers such as Samuel Clemens (Mark Twain), without permission or payment of royalties. That was legal at the time but what was not legal was the resale of these Canadian editions back into the US, a frequent occurrence. Thus, Clemens famously complained about “Canadian pirates” and tried to publish some of his works first in Montreal so he could claim British and Canadian copyright. Finally in 1891, the US agreed to respect the copyrights of other nationalities but only on condition that their works be typeset in the US.

For many years before it finally joined Berne in 1989, US publishers sought to obtain the benefits of Berne’s widespread international protection (applicable only to acceding parties) by simultaneously publishing works in the US and in Canada, through their Canadian publishing subsidiaries. This became known as “the back door to Berne”. Berne establishes a number of basic principles and commitment to minimum levels of protection by acceding states. For example, under Berne no formal registration is required to establish copyright provided that the fundamental requirements of originality, nationality and fixation are met, although registration can be provided as an option as is the case in both Canada and the United States. In the US registration is required if a legal action is taken to enforce a copyright. Berne also requires a minimum term of protection of the life of the “author” (meaning the creator of the work, even a visual work) plus 50 years after the author’s demise, although countries are free to establish a longer period of protection. The US, EU, and a number of other states, now including Canada, have extended the duration of copyright protection to “life plus seventy”, with a twenty-year extension allowing an author’s estate, or those who have acquired the rights, to have a longer period during which to exploit the work.

A key principle under Berne is “national treatment”. That is, each country is required to apply the provisions of the Convention within its area of jurisdiction to both nationals and non-nationals on an equitable basis consistent with Berne’s minimum standards. Today Canada and the US are both parties not only to Berne but also to many of the myriad of specialized copyright treaties, such as the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled”, which establishes exceptions to copyright for visually disabled people.

It is not only international treaties that impose certain commitments on Canada, but also bilateral agreements such as the updated NAFTA, the CUSMA (called the USMCA in the US). One of the commitments that Canada made in CUSMA was to extend its term of copyright protection to align with that in the US. The implementing legislation for this commitment has now been enacted and the longer term of copyright protection came into effect in Canada on December 30 2022. However, the longer term applies only to works still under copyright protection. Any works that entered the public domain prior to that date do not benefit.

Given recent Canadian government initiatives, such as Bill C-11 (the Online Streaming Act) and C-18 (Online News Act), both of which will require US companies ranging from Netflix and Disney to Facebook and Google to contribute financially to production of Canadian content, in the case of streaming, or in the case of C-18 and news content, to Canadian journalism, one could well ask whether the US will try to intervene on behalf of these large US content and tech companies. After all, one of the basic principles of CUSMA is national treatment for US companies in Canada, and vice versa, with specified exceptions.

One of these exceptions is the so-called cultural exception, Article 32.6 of CUSMA, which relates to what could be called “copyright industries”. This article allows Canada to take actions to protect culture in ways that would be inconsistent with the Agreement but for the exception. Film and television production, as well as the publication of magazines, periodicals and newspapers, and radio, TV and cable broadcasting, are all included in the definition of a cultural industry. However, Article 32.6 has a sting in its tail. It allows the other parties (the US or Mexico) to take equivalent measures of retaliation in any sector of the economy if the cultural exception is invoked. In effect this means that if Canada uses the cultural exception to justify measures against US (or Mexican) companies, other sectors of the Canadian economy could suffer the consequences. As such, it is a poison pill, which explains why it is very improbable it will ever be used. Instead, if there is a US trade challenge to these pieces of legislation – which is unlikely given the range of US interests involved, (some of which support the legislation) – the Canadian government will not invoke the cultural exception but will argue the measures it is implementing are not aimed at US companies per se, but rather at specific commercial entities that have an excessive degree of competitive market power. Thus, there is no violation of the national treatment principle. At the present time, the only companies that fit the definition happen to be American, but in future the definition could extend to European companies or Chinese entities like TikTok or, potentially, Canadian companies.

All this just goes to show that no nation is an island, whether it concerns specialized areas like copyright or broader issues like AI harms. Copyright has adapted over the years to technological change, with AI being but the most recent example. Likewise, Canada has adjusted to the international framework regulating copyright, to its advantage and to the benefit of its creative industries, and it will need to continue to do so in future.

AI’s Copyright Challenges: Searching for an International Consensus

Image: Shutterstock

This has been a busy couple of weeks for national and international declarations on Artificial Intelligence (AI). First the G7 issued its International Code of Conduct for Advanced AI Systems on October 30. The same day US President Biden signed the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, followed by the Bletchley Declaration at the conclusion of the “AI Summit” hosted by UK Prime Minister Rishi Sunak in Bletchley Park, Buckinghamshire, a couple of days later. Meanwhile, the EU’s AI Act is being touted by its sponsor as a potential model for AI legislation in other parts of the world (although its enactment is currently bogged down in the trilogue process between the Commission, EU Council and European Parliament). Notable was the fact that the US Executive Order, a wide-ranging framework document covering many aspects of the AI issue, effectively “scooped” the Brits by a day or so, allowing Vice President Kamala Harris to highlight steps the US had just announced when speaking to the press at Bletchley.

The declarations all addressed many of the concerns surrounding AI, ranging from safety and security, fraud and cybersecurity to privacy, equity and civil rights to protecting consumers, supporting workers and promoting innovation. A key issue only lightly touched on in these declarations, however, was that of AI’s intersection with copyright. This was a missed opportunity to come to grips with a major concern regarding how AI will be able to co-exist with copyright law. (The EU’s draft AI Act includes a transparency requirement to “document and make publicly available a sufficiently detailed summary of the use of training data protected under copyright law“, Article 28(b) 4(c).)

AI faces two significant challenges when it comes to copyright protection. First, with respect to the inputs that AI developers use to populate their models to produce generative AI, there is the unresolved question as to whether the free use of copyrighted content violates copyright law by making unauthorized reproductions. There are currently a number of lawsuits underway in the US examining this fundamental question. Many creator groups, such as the News Media Alliance in the United States argue that “the pervasive copying of expressive works to train and fuel generative artificial intelligence systems is copyright infringement and not a fair use”.

Second, with respect to outputs, the work generated by AI has two challenges in terms of obtaining the benefits of copyright protection. If its inputs are infringing, that clearly casts doubt on the legality of the derivative outputs. In addition, there is the problem posed by the current position of the US Copyright Office (and most other copyright authorities) that to be copyright-protected a work must be an original human creation. After the infamous Monkey Selfie case, the USCO issued an interpretive bulletin reiterating the need for human authorship and, to date, it has hewed to this line when examining applications for copyright registration from authors claiming works produced by AI.

The G7 Declaration was broad, covering a wide range of issues related to AI. It included a reference to the copyright issue under Point 11, “Implement appropriate data input measures and protections for personal data and intellectual property”, specifically stating that, “Organizations are encouraged to implement appropriate safeguards, to respect rights related to privacy and intellectual property, including copyright-protected content.” This is hardly prescriptive language, but it is a beginning. I understand that the creative community had to fight hard to get this wording included, but it is at least recognition of the issue.

With respect to the US Administration’s Executive Order, the issue of copyright was also acknowledged, but in a somewhat backhanded way. Section 5.2 (Promoting Innovation), addresses copyright as part of clarifying issues “related to AI and inventorship of patentable subject matter”. Paragraph (c)(iii) declares that the Under Secretary of Commerce for Intellectual Property and Director of the US Patent and Trademark Office shall;

“within 270 days of the date of this order or 180 days after the United States Copyright Office of the Library of Congress publishes its forthcoming AI study that will address copyright issues raised by AI, whichever comes later, consult with the Director of the United States Copyright Office and issue recommendations to the President on potential executive actions relating to copyright and AI. The recommendations shall address any copyright and related issues discussed in the United States Copyright Office’s study, including the scope of protection for works produced using AI and the treatment of copyrighted works in AI training.”

This is not exactly a ringing endorsement of the need for respecting the copyright of those who, willingly or not, provide the raw material for the voracious AI machines that are busy scooping up creator’s content, but it is nonetheless an acknowledgment that there’s an issue that needs addressing.

The US Copyright Office (USCO) launched its study on Artificial Intelligence and Copyright on August 30 of this year “to help assess whether legislative or regulatory steps in this area are warranted”. By the end of October, the USCO had already received more than 10,000 submissions. The comments range from statements by AI developers as to why they shouldn’t be required to pay for copyrighted content used as inputs in developing their models (while of course claiming they should enjoy the benefits of copyright protection for their AI generated outputs), to submissions by creator organizations that argue, among other things, that the ingestion of copyrighted material by AI systems is not categorically fair use and that AI companies should license works they ingest. Licensing their content to AI companies as an additional revenue stream is precisely what major media companies are currently engaged in.

If the US, currently and for the foreseeable future the leading country in development of AI, is thrashing around trying to address this question, one can imagine the process taking place elsewhere. Will the need to set standards inevitably lead to some form of international consensus for the regulation of AI, including the role of copyrighted content? I think it will be essential. Countries that are too lax in protecting their creative sectors will see their copyright-protected cultural industries suffer negative economic consequences; countries that are overly protective of content are worried that investment in AI innovation will flow to countries with lower copyright standards, becoming a race to the bottom for creators.

The UK government has already felt the pinch of this dilemma. In a misguided attempt to gain a head start in the AI development race, about a year and a half ago the British government unveiled a proposal sponsored by the UK Intellectual Property Office (of all entities!) to create an unlimited text and data mining (TDM) exception to copyright, at the same time stripping rights-holders of their ability to license their contact for TDM purposes, or to contract or opt out. In the words of the discussion paper accompanying the draft legislation, in order to reduce the time needed to obtain permission from rightsholders and to eliminate the need to pay license fees;

“The Government has decided to introduce a new copyright and database right exception which allows TDM for any purpose …Rights holders will no longer be able to charge for UK licences for TDM and will not be able to contract or opt-out of the exception.”

This outrageous attempted expropriation of intellectual property rights aroused a storm of protest from the UK’s vibrant cultural sector, a backlash that found resonance in Parliament. As a result, the British government backed off, and withdrew the proposed legislation. However, one wonders if the stake has truly been driven through the heart of this hi-tech gambit or whether, like Dracula, this misguided policy will rise again. “UK Parliamentary Committee Shoots Down Copyright Exemption for AI Developers–But is it Really Dead”? Certainly, British publishers are not convinced the content grab is over. According to the Guardian, they have just issued a statement urging the UK government, “to help end the unfettered, opaque development of artificial intelligence tools that use copyright-protected works with impunity.”

Canada has just launched a public consultation on AI and Copyright, (”Copyright in the Age of Generative Artificial Intelligence”), and others will be doing the same. In Australia, Google, responding to a review of copyright enforcement, urged the government to relax copyright laws to allow artificial intelligence to mine websites for information across the internet (even though this wasn’t the topic of the enquiry). Meanwhile, the Attorney-General’s Department has been conducting several roundtables to explore the issue, the most recent being at the end of August. In that roundtable, representatives of the Australian creative community called for greater transparency around how copyright material is being used by AI developers during the input training and output process.

And so, the search for the right formula goes on. It will not be easy to find the elusive international consensus, especially since at the moment (with the exception of China) this is an issue on the agenda only of the so-called Global North.

How the heavy-hitters will deal with the issue of AI, including its intellectual property dimensions, remains to be seen. There could be something as relatively powerless as OECD Guidelines that emerge or regulation could go a lot further, including the establishment of some kind of international agency with the “authority” to regulate in the area of AI, as suggested by Elon Musk and others. However, as we have seen with every international organization created to date, whether it be the UN, World Trade Organization, International Atomic Energy Agency, or any of the myriad other supra-national structures created in recent years, the authority granted them is only as good as the commitment of its signatory states. It makes sense to harmonize and set broad international standards for the way in which AI is created and used, but it will be a long road to get there.

The challenge of how copyright can intersect with AI–to the mutual benefit of both–has still be worked out. The courts are playing a role, as is technology, evolving business models, and legislation. Society needs to find the sweet spot where both human creation and technological advancement in the form of AI can co-exist for the benefit of society at large. Despite recent pronouncements, the search continues.

This post has been updated to include reference to the ongoing roundtable process underway in Australia under the aegis of the Attorney-General’s Department to explore, inter alia, questions of AI and copyright.

Chided by the Canadian Federation of Library Associations for Defending Authors: What an Honour!

Image: Shutterstock

All my life I have tried to behave well around librarians lest I be given a steely stare and be chided by the person on duty. I have tiptoed, suppressed coughs, and whispered in hushed tones. And generally, I have succeeded in avoiding reprimand. Until now.

Lorisia McLeod, Chair of the Canadian Federation of Library Associations (CFLA) is not happy with me, nor is Victoria Owen, Chair of the Copyright Committee of the CFLA. The source of their displeasure is an op-ed I wrote in July for the Globe and Mail (“Why We Need Copyright Reform Now”). In it, among other things, I stated that there was a need to narrow the overly wide “education” fair dealing exception introduced in 2012 that has led to Canadian authors and publishers indirectly subsidizing the post-secondary sector for more than a decade. As a result, writers have suffered a precipitous decline in income and fewer Canadian educational texts have been published. According to Ms. McLeod, my suggestion that the drastic decline in income for creators is related to the education sector’s refusal to negotiate reprographic licenses for copying hard copy and digital course material (under the pretext that the broader education fair dealing exception introduced in 2012 removes the need for it to do so), constitutes an attack on libraries that “needs to stop”.

When it comes to the payment of royalties by publishers to authors whose works have been licensed by libraries, she says “Copyright is not part of that transaction”. This makes no sense. I surmise she means it is a contractual issue, but contractual payments by publishers to authors are based on copyright, which confers the rights on the creator. While all contracts may not be identical, publishers who have licensed rights to a work share the licence fees with the author. For example, in the case of my recently-published book, “In Defence of Copyright”, I get a share of the revenue on each copy sold whether for hard-copy or digital works, with the payment for a digital copy amounting to fifty percent of the revenue that the publisher receives. But payment by publishers to authors is not the issue when it comes to the education exception.

The issue is an abuse of fair dealing, the user’s rights that are built into copyright law to provide limited permissionless access to copyrighted works for specified purposes and under specific conditions. McLeod refers to these as a “sliver of balance” offering limited rights to users. At the present time, some $200 million in uncompensated copying in the educational sector is in dispute. Some sliver! The “limited rights” she refers to have been turned into paper and digital course packs comprising significant portions of works that authors and publishers have produced, predominantly for the educational market, all without a nickel of payment for copying these materials, under the guise of educational fair dealing. And guess what? In many cases, the educational institutions charge students for these course packs through the university bookstore.

McLeod states that “Libraries purchase access to content including books, periodicals, and data and pay publishers hundreds of millions of dollars each year to provide students with digital access to these works.” Yes, they do. That is not in question. But as the Writers’ Union of Canada, supported by ten other copyright, authors and publishers groups, stated in a response to the CFLA statement, (“CFLA Statement Contains Damaging Inaccuracies”);

“In no way do current subscription, transactional, and access fees paid by libraries offset or excuse the massive amounts of unlicensed copying that happen every year elsewhere in Canadian education because of the misinterpretation that fair dealing permits such copying. Such use requires a license, and that license is currently not being paid.”

The basis of McLeod’s argument, amplified in a recent podcast hosted by well-known copyright critic Michael Geist of the University of Ottawa, featuring CFLA’s Victoria Owen (mentioned above), is that there is no need to acquire a blanket reprographic licence from the copyright collective, Access Copyright, because most works today are in digital format and libraries gain access to these works through digital licences. But do licences that provide access to a digital work and, in the case of libraries, lending rights as well, also allow for reproduction? Victoria Owen is categorical that they do. “Reprographic[i] permissions are bundled into the licences” (Podcast at 23:40). That is no doubt true in the case of some publishers, particularly the larger ones, but by no means do all publishers, especially smaller Canadian publishers, offer reprographic rights when they license digital content to a library. In situations where reprographic rights are included, students have full online access to those materials, so they seldom show up in paper course packs or uploaded on learning management systems. What does show up in course packs and on learning management systems are individual works, older materials, and other content that is not licensed in the manner alleged. Moreover, a licence to service a specified number of users at any one time is not a blank cheque for unlimited unlicensed digital copying of works or excerpts of works as is currently the case on most university campuses.

If “the market has changed”, to again quote Owen from the Geist podcast, and there is no unlicensed reproduction of materials in Access Copyright’s repertoire, why are the universities so opposed to submitting their case to fair examination and adjudication through the Copyright Board of Canada? Instead, they prefer to hide behind an expansive definition of education fair dealing to justify opting out of collective licensing for the considerable unlicensed copying they still resort to.

Owen goes on at length about user rights, clearly taking delight at the progressive dismantling of copyright protection for creators that has occurred in recent years. We all know that creator rights are not absolute and there is a balance in the form of user rights. Where that balance lies, or should lie, is a legitimate topic for debate, but in the eyes of many creators the scales have been unduly tilted in favour of, not users (i.e. students), but rather institutions who because of tight budgets are happy to cut costs by taking a free ride through a unilateral interpretation of fair dealing. They cannot escape direct licensing fees for digital works that in many cases have replaced book purchases, so they don’t, but if they can invoke an expansive definition of fair dealing to avoid payment of fees for reproducing all the other works in their holdings, current and historical, hard copy and digital, they will.

The CFLA statement further muddies the waters by confounding the situation of public libraries with those in the post-secondary sector, where licence terms differ. Public libraries continue to have large physical holdings and continue to acquire physical books along with e-books. That is understandable as there continues to be a strong public demand for books—books you can hold and take home. Just look at the still vibrant business model for independent bookstores alongside online platforms like Amazon and Indigo. And users often want to photocopy information from these books which explains why public libraries continue to have “paper only” comprehensive reprographic licences with Access Copyright. The copyright collective also offers reprographic licences for digital content.

Victoria Owen is right about one thing; rights-holders are trying to reclaim ground lost–to an unnecessary and excessive widening of educational fair dealing–and are seeking to restore some balance. She argues that it was really several court decisions, such as CCH v Law Society in 2004, not the 2012 legislation, that undermined the collective licensing model. While court rulings can indeed change the legal landscape, it is legislation that ultimately determines the law. Courts interpret the law, but if they get it wrong, Parliament can clarify its intent through legislative change. That is what authors and publishers are now seeking. The 2012 amendments that included education as a fair dealing exception went too far. Research and private study were already accepted fair dealing exceptions. The addition of education allowed institutions to substitute themselves for their students in proclaiming a user right. The solution, proposed by the Heritage Standing Committee report, Shifting Paradigms (Recommendation 18), is eminently reasonable.

“That Government of Canada amend the Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.”

This tweak would not eliminate education as a fair dealing exception but would limit it to the unlicensed reproduction of copyrighted works by educational institutions when, and only when, no commercially available alternative (that is, content available through licence) is available. This would include the digital reprographic licenses that the CFLA claims libraries are obtaining directly from some publishers as well as a blanket hard copy and/or digital licence from the copyright collective for use of works included in the repertoire.

Fixing the education fair dealing exception by narrowing it in this way is needed to restore fairness and balance in the market. It would also be an important step in helping stem the decline in incomes of our creative sector. While other means to increase incomes to writers mentioned by the CFLA, such as expanding the Public Lending Right or the Canada Book Fund are not mutually exclusive to fixing the fair dealing free riding problem, it is far better to have a market-based solution to guarantee a vibrant creative sector than to rely on various forms of government hand-outs, welcome as they may be.

The CFLA is crying foul, but they need to look at themselves in the mirror and ask what is really going on. The sector of the library world represented by post-secondary institutions in English Canada (noting that Quebec institutions have agreed to continue their licences with Access Copyright’s Quebec counterpart, Copibec) is exploiting the ambiguity of the education exception to throw Canadian authors under the bus. How is that in the “public interest” that Victoria Owen talks so much about?

The relationship between libraries (and librarians) and writers and publishers should be mutually supportive. They have a complex but mutually dependent relationship. No authors means no books, digital or otherwise. No books means no libraries, or librarians. A few years ago, a Canadian publisher, Kenneth Whyte, accused libraries of “pimping free entertainment to people who can afford it”. As I noted in a blog post that I wrote at the time (“Are Libraries the Enemy of Authors and Publishers?), the Association of Canadian Publishers (ACP) was quick to distance itself from Whyte and his accusations. The Executive Director of the ACP stated that “Canadian publishers recognize that libraries are an important part of the reading ecosystem and a primary channel for book discovery….Library sales are also an important part of the publishing business model” . As for the CFLA, it will claim that it supports writers but then go to great lengths to undercut a fair market model for content.

I started this blog by talking about being chided by librarians. I accept that some in the library sector have a different view of the value of copyright than I do. They seem to rejoice when copyright is weakened, and exceptions widened. I don’t. I want to see a fair balance restored. All writers, myself included now that I have published my book “In Defence of Copyright” (which I hope will become a useful reading for students of creative writing, film-making, music performance and composition and, yes, library science), recognize the necessity for prescribed exceptions to copyright. We build on the work of others, using citations, references and so on. But we don’t appropriate the work of others to teach the next generation of creators by copying without fair compensation.

So, while I have always been respectful toward librarians and the library setting, creeping around quietly and following the rules, this time I am going to stand up and loudly shout, “Enough. You know damned well what is going on. The obfuscation needs to stop!”. The specious argument that authors are not getting paid by publishers, or that the growing use of digital content eliminates the need to pay for the massive amount of unlicensed copying that takes place on Canadian campuses—promoted by the CFLA and amplified by copyright minimalists like Michael Geist—are smoke-screens that need to be called out. The legislative fix that is needed to restore balance to the system is clear and has been recommended by an all-party Parliamentary committee. Now, Parliament and the government need to move.

[i] Reprography is a form of reproduction, i.e. the duplication of a published graphic image or text. The word derives from the combination of two words: “Reproduce” and “Photography.”

Reprography produces a facsimile of a published graphic image or text using mechanical or electronic means, for example by the following processes:

1. Printing

2. Photocopying

3. Scanning

4. Digitizing

5. Electronic transmission, such as faxing

6. Electronic storage in databases

The exact definition of reprography varies from country to country, but essentially it boils down to making a copy by mechanical or electronic means of an existing image or text.

Click to access Reprography-Memo.pdf

Remembrance Day Poppies: Who Can Produce and Sell Them, including Designs Incorporating Them?

Photo: Author (Poppy paid for!)

I was at a store a couple of days ago and as is common at this time of year, there was the tray of Remembrance Day poppies on offer, with the proceeds going to the Royal Canadian Legion. I slipped in my $5 donation (is that enough in these days of inflation?) and took my GST-free decoration. It will no doubt be the first of several that I purchase this year as the poppies, at least in Canada, seem cunningly designed to fall off your jacket or sweater at the first possible opportunity. The parking lots of shopping centres are littered with them this time of year. One solution to the enormous poppy attrition rate is to pierce the black centre of the poppy with one of those small Canadian flag lapel pins—you know, the ones with a small spike secured by a tiny plate on the reverse side of whatever garment you are wearing—thus ensuring a degree of permanence at least through November 11. But then the Legion would get to sell you only one poppy per season instead of the multiple poppies required to keep up with the poppy-wearing Joneses.

Maybe the Legion, which holds the Canadian trademark on the red poppy when used for commemorative purposes, could design a better mouse trap–but then that would cost more to produce and would result in fewer sales, further reducing the flow of funds dedicated to veteran’s welfare. British poppies, which are larger than the Canadian version and usually adorned with a bit of fake greenery, perhaps don’t fall off as easily. I don’t actually know, as I have never worn one and am not sure how they are attached. Perhaps one of my British readers could enlighten me as to the relative lapel longevity of British poppies. These are also trademarked, and are marketed exclusively by the Royal British Legion, manufactured by an enterprise staffed by veterans and originally started by the Legion, the Poppy Factory. Despite the trademark protection for commemorative poppies in Canada and Britain, not to mention copyright protection of the designs of various products displayed on their websites, unauthorized versions proliferate at this time of year, marketed through various online platforms. Last year, the CBC reported that the Royal Canadian Legion took note of at least 1600 violations of its trademark, “Did you buy a poppy online? It may be one of hundreds of unauthorized products”.

The controversy over misappropriation of the symbolic poppy are as ubiquitous at this time of year as the poppies are themselves in the fields of Flanders in summer. While there are lots of unauthorized versions of the poppy motif out there, as a consumer you have a choice. Yes, you can buy your poppy memorabilia through Etsy, Amazon, or whatever, or you could go directly to the Legion websites; the Poppy Store of the Royal Canadian Legion or the Royal British Legion’s Poppy Shop to get your poppy-fix. The prices are competitive, and you will have the satisfaction of knowing where your funds are going.

Over the past few years, I have written an annual blog post around November 11. If you are not aware of the history of the poppy campaign and the challenges it has faced from unauthorized competition, here are some updated excerpts from my original Remembrance Day blog post in 2019.

Remembrance Day Poppies and Intellectual Property Controversies

At the 11th hour of the 11th day of the 11th month in 1918, the guns on the western front in Europe fell silent. An armistice was declared. Germany didn’t formally surrender although it soon collapsed, and the 1919 Treaty of Versailles treated it as a defeated country (with the results twenty years later that we all know about). Thus Armistice Day, now known as Remembrance Day in many countries including Canada, the UK and Australia, and Veteran’s Day in the US, was born.

Today, in particular in Canada and the UK, Remembrance Day is marked by the wearing of poppies. They spring up on the lapels of TV news broadcasters, politicians, and members of the public like mushrooms in autumn. In the US, although they are not so ubiquitous as north of the border or in Britain, they are more typically worn on Memorial Day, which is in May, and in Australia and New Zealand I am told that poppies generally blossom around Anzac Day, April 25. It is probably fairly well known (although with today’s young people it is perhaps wrong to make assumptions) that the wearing of the poppy is a memorial to the sacrifices made by those who fought and died, initially in WW1 for the Allied cause, today more generally extended as a memorial to all those who perished in wars. Poppies grew prolifically in the killing fields of Flanders in Belgium, and still cover the countryside today. The poppies were made famous by the poem “In Flanders Fields” written by Canadian military doctor John McCrae in 1915 after seeing poppies on the battlefield after the loss of his friend in the second battle of Ypres.

It was an American teacher, 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. (Another prominent campaigner was Anna Guérin, who took inspiration from Ms. Michael and actively promoted adoption of the poppy). Between 1920 and 1922 the poppy was adopted by veterans’ organizations in the US, Britain, Canada, Australia and New Zealand. In Britain an organization known as the “Poppy Factory”, which still exists today, was set up to manufacture the paper poppies for sale for the support of veterans causes. That leads us to the main point of this blog, the intellectual property (IP) controversies that have arisen around the sale of poppies and poppy-related memorabilia.

There is an important intellectual property angle as to who gets to produce and sell poppies, although it is more of a trademark than a copyright issue. There have been controversies in both Britain and Canada involving production and sale of the little red flower. In both countries (and possibly elsewhere) the poppy is trademarked, by the Royal Canadian Legion (RCL) and the Royal British Legion (RBL), respectively, both respected veterans organizations. The Royal Canadian Legion’s website notes that the trademark was conferred by Act of Parliament in 1948, and is limited to the use of the poppy in remembrance;

“The Canadian trademark for the Poppy includes both the Legion’s Poppy logo, as well as the Poppy symbol, as it relates to Remembrance. The trademark does not apply to the use of the actual Poppy flower, unless that usage is misrepresented as the Legion’s Poppy by associating it with remembrance or the raising of monies for a purpose other than the Poppy Campaign.”

However, the trademark extends to any colour or configuration of the poppy when used as a symbol of remembrance. This is increasingly relevant as various groups make their own versions available, from a white poppy symbolizing peace (some would say pacifism) to a rainbow-hued LBGTQ poppy that has caused some controversy.

Whether either of the Legions would take legal action against someone for producing and selling poppies of a colour other than red is an interesting question, but last year in Britain a seller at an outdoor market pleaded guilty to selling red poppies that had no association with the RBL. In Canada a group of knitters who were knitting poppies for the price of a donation, which they say they intended to give to the RCL, were reminded that they were violating the Legion’s IP. In addition to its statement of trademark, the RCL has a very clear copyright warning on its website;

“The material on this site is covered by the provisions of the Copyright Act, by Canadian laws, policies, regulations and international agreements. Reproduction of materials on this site, in whole or in part, for the purposes of commercial redistribution is prohibited except with written permission from The Royal Canadian Legion…”

And what are the materials marketed on the site? Just about anything that you can stick a poppy symbol on—playing cards, bags, baseball caps, pins, brooches, watches, T-shirts, magnets, umbrellas, scarves, toques, mittens, stuffed animals, even cellphone cases. You get the idea. And then there are digital versions of the poppy that you can purchase and use to embellish your Facebook page. All the proceeds go to the Legion and then on to its veterans’ welfare programs (although the Legion is not a registered charity).

Well, who knew that the innocuous looking poppy on people’s lapels on Remembrance Day carried such weighty IP concerns on its shoulders? When you drop your donation into the collection box, and pin your poppy on your jacket or shirt, remember…even the humble poppy can be controversial when it comes to trademark and copyright issues.

Are Canadians Born Pirates?

Credit: Pixabay.com

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

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

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

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

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

“Are Canadians Born Pirates?”

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

by Peter S. Grant

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

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

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

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

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

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

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

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

Canada Gets the Memo: It’s Time to Come to Grips with the AI/Copyright Conundrum

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

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

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

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

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

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

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

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

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

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

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

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

Copyright Developments in Taiwan: Fighting Piracy and Coming to Grips with AI

Image: Shutterstock

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

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

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

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

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

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

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

A Tale of Two Copyrights

Registration of AI-Generated Works in the United States and Canada: A Comparison

Credit: Shutterstock

Human Creation

The question of whether works that are generated in whole or in part by Artificial Intelligence (AI) should enjoy copyright protection is a hot topic at the moment. It is wrapped up in the question of who can claim the protection of copyright. As we learned from the Monkey Selfie case, in the US the holder of a copyright must be a human, which has obvious implications for works created by AI where there is no or minimal human engagement. That is generally true everywhere although UK copyright law has a limited exception. [i] Although humans could use AI to assist them in creating a work, yet still retain creative control, when AI is introduced into the creative process the question arises as to whether there is sufficient human creativity in the work to qualify for copyright protection.

Optional Registration

The question is further complicated by the nature of how copyright is established. Under the Berne Convention, to which 181 countries have acceded, copyright is established automatically when three fundamental conditions are met; the work is original (not copied from another work), when it is the expression of an idea, i.e expressing creativity (rather than the idea itself) and it is fixed in some material form. It is not necessary that it be registered, as used to be the case in the early days of copyright and until 1989 in the US, when the United States joined the Berne Convention. However, in both the US and Canada, registration is possible as a voluntary option. (In the US it is required if legal action is to be brought in an infringement case). The advantage of registration is additional proof that a creator owns the copyright in a particular work, although registration and receipt of a certificate is no guarantee that the copyright will not be challenged or that it is not infringing on the rights of another copyright holder. Those issues must be decided in a court of law. Nonetheless, registration could help clarify whether AI generated works qualify for copyright protection. That is certainly the case in the United States; in Canada not so much.

Situation in the US

When we put the two requirements of human creativity and registration together, we face the possibility that registration could be denied because the work was created not by a person but instead by an autonomous AI program. That issue has played out recently in two cases in the US where the authors of works using generative AI were seeking copyright registration from the US Copyright Office (USCO). In the first, the case of Stephen Thaler and his self-described “Creativity Machine”, Thaler sought to register a work of art he claimed was created entirely by his machine. I wrote about this case last year in a blog post titled “The Humanity of Copyright”. Thaler first tried to register the work, a two dimensional image called “A Recent Entrance to Paradise”, back in 2018. He was refused and appealed through various channels. His final appeal was dismissed in August of this year by the US Court for the District of Columbia.

The most recent unsuccessful attempt to register an AI generated work with the USCO was a request by artist Jason M. Allen for a copyright covering an award-winning image he created with the generative AI program Midjourney. As reported by the Verge, Allen shook up the art world last year by submitting his AI generated work “Theatre d’Opera Spatial” to the Colorado State Fair fine arts competition in the “Digital Arts / Digitally-Manipulated Photography” category, winning first prize. In his appeal of the USCO’s initial rejection of his copyright registration application, Allen told the Copyright Review Panel that he input over 600 text prompts to arrive at the initial version of the image using the Midjourney program, with the images later altered with Adobe Photoshop. But the USCO wasn’t buying it. The Board’s rejection letter states, “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.”

As a result, the Review Board, concluded, ;

“…the Work contains more than a de minimis amount of AI generated content, which must be disclaimed in an application for registration. Because Mr. Allen has refused to disclaim the material produced by AI, the Work cannot be registered as submitted.”

That decision could not be clearer nor better substantiated. See the full 9 page ruling (here). Works of non-human authorship, including those produced by generative AI programs with minimal human intervention, are not subject to copyright protection and cannot be registered with the US Copyright Office.

The Canadian Experience

Now let’s compare the situation in Canada, where copyright registration is handled by the Canadian Intellectual Property Office (CIPO), an agency of the Department of Innovation, Science and Economic Development. CIPO doesn’t actually care what is in a copyright application, nor does it examine a registration application or keep any record of what the application contained other than the title and brief description of the work. As a result, an AI generated work can be, and has been, accorded Canadian copyright registration as I demonstrated with my application for registration of a piece of AI generated doggerel produced by ChatGPT accompanied by an image produced by the AI program DALL-E-2. (“Canadian Copyright Registration for my 100 Percent AI-Generated Work”).

You can read about it through the preceding link, but suffice to say that I submitted a request for copyright registration for a work titled, “Sunset Serenity”, being “an image and poem about sunset at an Ontario lake created entirely by AI programs DALL-E2 (Image) and ChatGPT (Poem) on the basis of prompts demonstrating minimal skill and judgement on the part of the human claiming copyright”. I inserted the phrase about “skill and judgement” as these are supposed to be the criteria by which originality is determined in Canada, according to the Supreme Court of Canada ruling in 2004 in CCH Canadian Ltd. v. Law Society of Upper Canada. I had exercised almost no skill and judgement, except to make two prompts and two choices (DALL E2 provided me with 4 images to chose from in response to my request for it to generate an image of me on the cottage dock at sunset, and ChatGPT generated several poems when I asked for a poem in “in iambic pentameter involving watching the sun set over a lake in northern Ontario while I sit in a Muskoka chair at my dock sipping on a cool drink, listening to the haunting cry of the loon”. I chose the least worst one. You can enjoy this now-copyright registered work here. And I have a nicely designed Copyright Certificate of Registration no. 1201819, dated April 11, 2023, produced on parchment paper, that I can use to adorn my office wall. (Or I could sell it on eBay).

It seems we have a situation that I could call, “A Tale of Two Copyrights” where the US Copyright Office goes to inordinate length to determine if AI generated content is included in a work submitted for registration, and denies registration for those parts of the work that are based on AI, yet the Canadian Intellectual Property Office is perfectly happy to issue a registration certificate for a work that by its own admission meets neither the requirement of originality nor human creation. The fact that no copy of the work is either submitted or retained also undermines the utility of the process as I discussed in a blog over a copyright dispute regarding who owned the name to the Okanagan Lake cryptid, the Ogogopo. Even though the Copyright Office had issued a certificate in 1953 for “an unpublished artistic and literary work entitled Ogopogo”, nobody living had a clue as to what it purported to protect. It does make one wonder what the point is of copyright registration in Canada if no effort is made to examine the bona fides of the work or to keep a copy on file.

What is the Utility of a Canadian Copyright Certificate?

It has been put to me that I shouldn’t be stirring up this pot lest the CIPO suddenly bestir itself and start taking copyright seriously by actually examining requests. That could push up the $50 fee and make it a bit more complicated to get a certificate. I would note, however, that the fee for filing a copyright request with the US Copyright Office is only US$45 for online filing for a “Single Application (single author, same claimant, one work, not for hire)”. If you want a paper filing, it will cost more. With CIPO, online filing is the only option. There is no question that filing a Canadian copyright application is simpler, but is it worth the expensive paper that it is printed on?

But what if we look at it from another angle. Under the Berne Convention to which both Canada and the US are parties, copyright protection is reciprocal and based on national treatment. Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of “national treatment”). Should Stephen Thaler and Jason Allen have first published and registered their works in Canada, and then sought reciprocal treatment in the US? I guarantee they would have received a bona fide copyright registration certificate from CIPO. Unfortunately, under the principle of national treatment, the US is obliged only to provide them with the same level of copyright protection as they would have received had they registered, or attempted to register, in the United States.

Whether the protection in Canada actually covers AI generated works is still an open question, despite my copyright certificate No. 1201819. In the US clarity reigns; in Canada, confusion and ambiguity.

This post has been updated to correct the reference initially made to the national treatment provision of the Berne Convention.

[i] Under the Copyright, Designs and Patents Act, 1988, there is a provision (Section 178) that states computer generated works are works “generated by computer in circumstances such that there is no human author of the work”. These works are currently provided with a more limited term of copyright protection (50 years from the date of creation) as opposed to the standard life plus 70 years provided to works made solely by human authors or authors assisted by AI. (The rights-holder for a fully computer-generated work is “the person by whom the arrangements necessary for the creation of the work are undertaken” even though that person played no creative role.)

UK Parliamentary Committee Shoots Down Copyright Exemption for AI Developers–But is it Really Dead?

The all-party Culture, Media and Sport Committee of the British House of Commons has just (August 30) issued a welcome report condemning plans announced by Britain’s Intellectual Property Office (IPO) in June of 2022 to create a limitless copyright exemption to enable tech companies to develop artificial intelligence (AI) applications without having to obtain permission from rights holders or to acquire a licence. I commented on the IPO’s recommendations in a blog post back in November (“Britain’s Proposed Approach to Text and Data Mining (TDM) for AI: How Not to do It (A Lesson for Canada and Others”), calling it “nothing short of outrageous”. The UKIPO’s proposal meant throwing the British cultural community under the bus in a misguided attempt to make Britain more attractive than the EU for AI developers by making the British Text and Data Mining (TDM) exception broader and less restrictive than the one that exists currently in EU law (which allows TDM only for non-commercial research purposes). All this supposedly in the name of promoting innovation. To me this reeked of one more desperate attempt to show that Brexit was not the colossal mistake that it clearly was. The IPO claimed (at para. 60) “These changes make the most of the greater flexibilities following Brexit. They will help make the UK more competitive as a location for firms doing data mining.”

It would be an understatement to say that the IPO’s announcement that the government had “decided” to introduce a new copyright and database right exception to allow permissionless TDM for any purpose set off a furor. It was vigorously attacked by various British cultural industries, from publishing to music to film-making. The CEO of UK Music, Jamie Njoku-Goodwin, called the IPO’s proposals “a green light for music laundering”. While boosters of Britain as an innovation hub played up all the “jobs of the future” that would (maybe) be created, they seem to have forgotten that cultural industries contributed £115 billion in 2021 to the British economy, employing over 2 million people while being a significant source of exports as well as “softpower”. In the face of the furious reaction from many quarters (which, frankly, the government should have anticipated), earlier this year it was finally announced that the proposal had been shelved. The IPO’s ill-conceived proposal was attacked not just by cultural industry groups and creators, but also by Parliamentarians. The first to take aim was the House of Lords Communications and Digital Committee, now followed by the Culture, Media and Sport (CMS) Committee of the House.

The main findings of the CMS Committee were pointed and scathing;

The Committee is pleased that the Government has been listening to stakeholders on text and data mining intellectual property for commercial benefit and is encouraged that Ministers are looking again at this…

The Government must work to regain the trust of the creative industries following its abortive attempt to introduce a broad text and data mining exemption. The Government should consider how creatives can ensure transparency and, if necessary, recourse and redress if they suspect that AI developers are wrongfully using their works in AI development…

The Government’s initial handing of the text and data mining exemption to copyright for AI development, though eventually correct, shows a clear lack of understanding of the needs of the UK’s creative industries. All branches of Government need to better understand the impact of AI, and technology more broadly, on the creative industries and be able to defend their interests consistently.

Apart from criticizing the earlier approach, the Committee strongly supported the status quo with regard to TDM,

“…the current framework, which provides an exemption for text and data mining for non-commercial research purposes and otherwise allows creators to licence their work for any further purpose, provides an appropriate balance between innovation and creator rights”. (emphasis added)

It also made other concrete recommendations such as addressing skills and personnel shortages in both the hi-tech and creative sectors, improving digital skills, and strengthening protection for creators to prevent misuse of their likenesses and performances by emerging technologies. (These are some of the same concerns currently at issue with the Hollywood writers and actors strike).

This is all good stuff, but will it stick? Don’t count out the power of Silicon Valley and the tech lobby in Britain. While the Culture, Media and Sport Committee has done good work through its research and hearings, and has made sensible recommendations, remember that it is just one all-party Parliamentary Committee among many. While chaired by a Conservative MP, the government is under no obligation to take its recommendations on board. True, for the moment, the British government has backed away from the “decision” announced by the IPO, but various proposals are still under study. Not insignificant is the fact that Prime Minister Rishi Sunak is planning on holding the world’s first AI summit before the end of this year, at Bletchley Park, of Enigma fame. (I remember well my visit to Bletchley a couple of years ago. It helped bring all the books I’ve read about the “codebreakers”, of which there are many—books that is–to life). The focus will be on AI safety, but it is part of Sunak’s agenda (remember, he has a high-tech business background) to make Britain a leader in AI. If copyright is seen to get in the way of this ambition, the fight will not be over. That is probably why UK publishers have lobbied Sunak to make it clear that IP rights must be respected when any content is ingested by AI systems by adding this topic to the agenda of the AI summit.

It may also be telling that in the middle of all the debate about whether AI developers should be given the keys to the copyright kingdom, at no charge, the former Department of Digital, Culture, Media and Sport (DCMS) had the digital file taken away from it and conferred on a newly created department, the Department for Science, Innovation and Technology (DSIT). And let’s not forget that the Intellectual Property Office (responsible for the Copyright Act, among others) does not report to the minister responsible for the Department of Culture, Media and Sport, nor to its predecessor DCMS, but falls under the ministerial responsibilities of DSIT. This is reminiscent of Canada where statutory authority for the Copyright Act, and for the Canadian Intellectual Property Office which administers the Act, falls under the Department of Industry, currently labelled Innovation, Science and Economic Development (ISED). While the “culture” ministry, Canadian Heritage, plays an important role in shaping copyright, the lead rests with ISED where, in my opinion, it gets short shrift. Given that the UKIPO, responsible for copyright, was the author of the unprecedented copyright exemption proposal, one cannot help but wonder when and how Silicon Valley’s acolytes will strike back.

The report of the Culture, Media and Sport Committee is important and welcome, but don’t expect this issue of “free” access to copyrighted content, wrapped up in the garb of “innovation” (in the US the operative phrase would be “transformation”), to go away. Creators must remain alert while working to find ways to make it possible for AI developers to access the copyrighted content they need to produce credible outputs. Already discussions are underway between rights-holders such as media companies and image/photostock management companies such as Shutterstock, and AI companies, to provide access to valuable, curated content. AI developers can scrape unlimited garbage off the internet, and they do, but if AI generated works are to have credibility and contribute to learning, they need to ingest reputable content and respect the rights of those who have created it. Furthermore, the outputs have to be legal. What is, and is not, legal at the moment is very much open to question. Ingestion of licensed content would help make the case for legality (non-infringement) of AI generated content.

Giving AI developers a blanket free pass, as the UKIPO originally suggested, is clearly not the way to go. The Culture, Media and Sport Committee report has helped redress the balance. But “it ain’t over ‘till its over”. Creators in Britain and elsewhere need to stay alert, speak up and fight to protect their intellectual property or the hi-tech industry will take another free ride.

India Government Adopts New Tool to Tackle Film Piracy and Modernizes Content Classification

The morning view of Taj Mahal monument reflecting in water of the pool, Agra, India on 04 October, 2014. (Under licence from Envato Elements Pty)

On August 4, 2023, India’s Cinematograph (Amendment) Bill, 2023, received Presidential assent and became the law of the land. Enactment marked the culmination of a decades-long process to update the country’s anti-piracy laws by cracking down on camcording in theatres and imposing significant penalties for distribution of illegally recorded films. This legislation marks a real breakthrough in upgrading the governance of India’s theatrical industry in terms of anti-piracy measures and modernization of the certification system. In addition to imposing deterrent punishments for piracy, the legislation has brought the film rating system into alignment with internationally recognized best practices and standards, removed the federal government’s power to review a film’s certification after the Central Board of Film Certification (CBFC) has certified a film and replaced the ten-year validity of censorship certificates with perpetual validation.

The new legislation was hailed by both India’s film industry as well as the government. The Producers Guild of India welcomed the increased penalties for piracy, which stipulate a jail term of up to three years and a fine that can total as much as up to five per cent of a film’s production cost. This is a significant financial penalty that begins to reflect more accurately the impact of lost revenues for producers. The sanctions are not just for illegal camcording, but also for distribution of an infringing copy to the public for profit, both offline in physical premises and online. Through the imposition of significant financial penalties, the new legislation punishes not just the perpetrator of the camcording, who may be a low-level operative hired to take the risk of making the infringing copy, but also goes after the distributors behind the piracy. In other words, it “follows the money”. It is estimated by the Indian government that piracy costs the Indian film industry up to US$2.4 billion annually. The Indian courts and authorities have since 2018 done an excellent job of promoting online content protection via site blocking orders related to “rogue” piracy websites, and the new, focused provisions will give rightsholders and law enforcement an additional strong tool to tackle film piracy at the source.

The government of India, the Minister of Information and Broadcasting, and indeed senior officials within the Ministry all deserve credit for pushing the initiative through. This significantly more robust stance against piracy, which has been the scourge of the industry for years, reflects the greater emphasis placed by the Indian Government on establishing and reinforcing India’s role as a source of innovation and creativity. As Information and Broadcasting minister Anurag Thakur stated so aptly, “India is known as a country of story tellers which shows our rich culture, heritage, legacy and diversity”. That storytelling tradition as expressed through film was under threat. Not only does the industry contribute to the country’s cultural richness and diversity, but it also provides employment for hundreds of thousands of workers, from film stars to caterers, designers, hairdressers, directors, choreographers, film technicians, musicians; indeed the full panoply of talents and occupations that make up the film industry. And that is not to mention the contribution of the film industry to the country’s GDP. A study commissioned by the Motion Picture Association in 2019 concluded that the film and television industry directly and indirectly generated employment of 26.6 lakhs (2.6 million) and contributed over INR 415,000 crore (US$50 billion at current exchange rates) in economic output.

While the anti-camcording and anti-piracy elements of the legislation constitute a major breakthrough, the other elements of the legislation are also important. Updating the age-related categories for “U/A” films, by creating new categories of classification in the U/A category that fills the gap between Unrestricted and Adult, has modernized the film rating system, allowing parents to determine with much greater accuracy what sorts of films their children can watch. The new categories of U/A 7+, U/A 13+, and U/A16+ will allow for content differentiation, expand viewing options for young people and allow parents to make the call as to what films are suitable for various ages. The previous “all or nothing” approach was not serving the needs of the viewing public and led to uncertainty as to the suitability of general U/A films for particular age categories. The regulation’s adoption of revised television ratings is another improvement on a previously informal process.

One of the more politically delicate elements in the legislation was the decision to delete any provisions that would empower the federal government to overrule the censorship authority (Central Board of Film Certification, CBFC) by revoking a film’s certification. Such reserve authority not only undermines the effective working of the CBFC but opens the film censorship and rating process to political interference. Given the judgment in the Union of India v Shankarappa case, doing away with the revocation of the certificate clause is a wonderful change. It provides greater autonomy to the CBFC and builds predictability and certainty for a film’s producer.

Last but not least, an additional welcome feature is replacing the previous ten-year validity of a film certificate with one that is valid perpetually. If a film clears censorship and is released, why would its certificate need to be reviewed in ten years’ time? If there is no good reason to do, the renewal simply becomes a bureaucratic exercise that unnecessarily burdens film producers.

To manage the vicissitudes of the parliamentary process, where bills can fall hostage to unrelated political issues and die on the order paper, the government introduced it first into the upper house, the Rajya Sabha, thereby ensuring it would not be expunged each time a parliamentary session ended. This was an astute move. It passed the Rajya Sabha on July 27, 2023, and the Lok Sabha, by voice vote, on July 31, 2023. That is an amazing feat after more than 40 years of delay since the legislation was last amended in 1982.

The film industry is truly one of India’s cultural gems, along with its great art, literature and religions. Indian films are a dynamic cultural and economic force domestically and globally. Now the investment that goes into producing them will be better protected and there will be much greater certainty regarding the sanctity of cleared and rated content. The industry will continue to grow and flourish through the creativity and artistry of Indian talent. But the Government of India has played an important role helping to secure this future. Shabash!

Author: hughstephensblog

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