Ay, There’s the Rub: When You Cannot (or Should Not) Copy Something Despite its Lack of Copyright Protection

Credit photo: author

Several decades ago, in my younger days, my wife and I spent a summer in England visiting the many historical sites of that great country. During that trip, we visited a number of cathedrals. I don’t remember them all, but Winchester was one for sure. I still have vivid memories of young students sprawled out on the floor of the cathedral taking rubbings from the brass effigies of knights and clergy inlaid in the stone floor. That was a popular pastime “back in the day” (and earlier going back to Victorian times) although today it is discouraged because of the obvious impact on the integrity of the originals from repeated rubbings. It can still be done, but normally from reproductions, such as those found at St. Martins-in-the-Fields in London, where reproductions of famous effigies from throughout England have been collected so tourists can take rubbings from them. You can also buy reproductions of the rubbings for a modest sum.

My mind flashed back to these brass tomb rubbings when I recently visited Gabriola Island, one of the southern Gulf Islands in the Salish Sea between Vancouver Island and the mainland of British Columbia. Gabriola is home to large numbers of petroglyphs (more than 70 in total), rock carvings executed by the native people of the area, the Snuneymuxw (pronounced Snoo-nai-mu), over many hundreds of years. While it is hard to date the carvings, most are believed to be several hundred years old, or older, although some may be of relatively recent vintage. They depict all manner of wildlife and anthropomorphic figures and are scattered around the island, some near the coast, others in auspicious rocky areas, most on private land.

Gabriola is also known for its unusual sandstone features. Over the centuries the soft sandstone has been eroded by the ocean to create waterside “galleries”, clearly visible at low tide. The most famous of these are the “Malaspina Galleries”, covered arcades that people can walk into. The galleries and the petroglyphs have been an attraction ever since the days of the first European explorers. The University of Washington has a photograph of an engraving dated 1792 made from a sketch drawn by Spanish explorer Jose Cardero showing European and native visitors viewing a petroglyph carved on the underside of one of the Gabriola gallery roofs.

Given the attraction of the petroglyphs, and in order to prevent damage to the originals, a few years ago a project was started to make casts of most of the glyphs and display the castings on the grounds of the local museum, laid out on the ground amongst the trees. As they soon became covered in the soft moss typical of the island, they took on the aura of the originals. People, especially student groups, were encouraged to visit the castings and the museum to learn the history of the Snuneymuxw people and as part of the educational experience, they were allowed—even encouraged—to take rubbings of the images displayed in the reproduced castings. The museum even supplied rubbing kits for a small fee.

That was then—a few years ago. Now the signs encouraging the making of rubbings have been (sort of) painted over and the rubbing kits are no longer for sale. The Gabriola Museum has posted a sign saying that after consultation with the Snuneymuxw Nation, the taking of rubbings from the castings is no longer permitted. Why the change? After all, these are “just” reproductions. And aren’t they public domain works? They are not protected by any form of copyright.

To answer this question, we need to look deeper at the origin and meaning of the glyphs, and also to understand the broader global context regarding the protection of indigenous cultural expression. As I discussed in a blog last October (Can Copyright Law Protect Indigenous Culture? If Not, What is the Answer?), a number of countries are grappling with how to adapt copyright laws to protect Indigenous Cultural Expression (ICE). One solution may be an international treaty which has been under negotiation at the World Intellectual Property Organization (WIPO) for a number of years, called the Treaty on Intellectual Property on Genetic Resources, Traditional Knowledge and Folklore, but this is a slow process that may ultimately not be productive. Another might be to establish a rights-management agency for indigenous culture, along the lines of what is being considered in Canada. This would allow users to gain consent and license the use of protected cultural expressions (images, designs, music, dances and so on) while at the same time protecting them and restricting their use, even if they are not subject to copyright. A key piece of the puzzle is the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) that has been endorsed by 144 countries, including the US and Canada. The Declaration, although not binding in domestic law in many countries (US and Canada are examples) gives indigenous peoples the right to maintain, control, protect and develop cultural heritage including literature, designs, visual and performing arts, and other aspects of traditional knowledge.

In line with the right to control and protect cultural artifacts, it may be that some are considered so sacred that they should not be reproduced at all. There are numerous petroglyph sites in the US (in Arizona, New Mexico, Nevada, Utah, Washington, Illinois, Michigan, Missouri, even Hawaii) and there is a major petroglyph site in eastern Canada, north of Toronto. At Petroglyphs Provincial Park all the glyphs are protected by a weatherproof building, and even photography of the images is not allowed. At the Petroglyphs National Monument in New Mexico, the National Parks Service has this advice for visitors; 

We encourage you to respect the beliefs of the descendants of those who carved the images on the rocks. The petroglyphs within the park are sacred to many people living in the area today. Out of respect and consideration of present day peoples, we currently do not post any images on our website or place any images in our publications that display the human form. We would encourage you not to use the images for commercial purposes.

As you can see, if even photography is often not allowed or is constrained, it is understandable that taking rubbings, even of reproductions, can cross the line of what is acceptable. There is obviously a balance somewhere between limiting access and reproduction for spiritual reasons, and promoting dissemination of the images for purposes of education and awareness.

It seems to me that the Snuneymuxw people and the Gabriola Museum have been able to find that balance by keeping reproductions of the glyphs on display in a natural respectful setting–along with providing suitable explanations and interpretative materials–while avoiding demeaning the symbolism of the images by allowing them to become a form of children’s activities or “entertainment”.

As for the connection with copyright, while copyright cannot be invoked to prevent unauthorized reproduction in this case—it’s just not the right instrument—many of the principles of copyright, including the concept of moral rights, are in play here. Fundamentally, it is a question of respect; respect for the artist (or artists) who created the work, and respect for the meaning and essence of the work. While the artists who created the works are not in a position to give or withhold permission to use or reproduce them, the stewards of the works (the current leaders of the tribe or First Nation) are entitled to do so. To me that is similar to basic elements of copyright—respect for the results of creative endeavour through appropriate use with permission (with or without an incentive as the case may be).

© Hugh Stephens 2021. All Rights Reserved.

Opera and Copyright: Why is Mozart Performed More Often than Modern Composers? (Is Copyright the Reason?)

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Early in the New Year I thought it might be fun and interesting to look at how copyright and opera intersect, not that much opera is being performed these days. However, if the COVID vaccines are rolled out quickly and effectively (right now this seems more like a hope than an expectation), allowing public performances to resume, then La Scala, the Met and all the other famous venues may be back in business by the end of 2021. That’s something for lovers of opera to look forward to.

Many of you may fall into the category of true opera aficionados. You’re able to hum famous arias, know all the main characters in The Magic Flute, can sing the libretto in Italian of The Barber of Seville, and are able to recite Beverly Sills’ most renowned performances. I also suspect that many others are a bit like me. We love to go to the opera occasionally, for the music, the costumes, the whole spectacle. And when we go, we usually choose to see some very familiar work—Carmen, or Marriage of Figaro or La Bohème, for example—because, well, they’re familiar.  We like to hear the music and songs that we remember, and follow the stories that we more or less know (while recalling that all opera plots are generally ridiculous and that most of the characters on stage will eventually come to a tragic and unhappy end). To keep us—the average opera-goer—coming back for more, artistic directors ensure that their programming includes a healthy dose of the classics. More avant-garde, experimental pieces are usually mixed in but the bread-and-butter of most companies, seeking to ensure balanced budgets and full houses where possible, are the tried and true “recognizable” works. There is nothing very surprising in this. Symphony orchestras work much the same way, balancing the need for popular appeal by regularly playing the classics combined with trying out new pieces to expose audiences to something different.

Thus it was with great interest that I recently read a research piece from WIPO, the World Intellectual Property Organization, that suggested copyright might be the reason why more classical operas, which are in the public domain, are performed than are modern pieces that are still under copyright protection. (There was the usual disclaimer for such think pieces that the views expressed were those of the authors, and did not necessarily reflect the views of WIPO or its member states.). The study’s focus is stated as follows; 

“Today, the works of almost no living composers are performed on global opera stages….Why are we not seeing more performances of modern operas? What are the factors that have driven new works off the stage? While previous research has focused around how copyright incentivizes composers to create new work, we’ll be taking a look at the economic role of copyright and how it affects opera houses’ decisions around staging and reusing works. Is granting exclusive rights to new opera works actually excluding them from the stage?”

The paper points outs that of the 50 most widely performed operas globally in 2017-18, only 1 percent of them were written by composers born in the 20th century (29% of composers were born in the 18th century and 70% in the 19th century). The only 20th century work in the top 50 was Leonard Bernstein’s Candide. It had 111 performances during this time period. The most popular, Verdi’s La Traviata, had 853.

To the question of whether copyright encourages creativity in the opera world, the paper argues that while in theory copyright incentivizes composers to create new operas by granting them exclusive rights, in the case of opera this might not be true because “new, avant-garde works tend to attract smaller crowds and sell at lower ticket prices compared to the many popular works in the public domain. Opera houses have low expected revenues from these performances so the cost of licensing them from composers becomes too high.”

The first part of this statement is certainly true, but does it follow that lower revenues mean that the cost of licensing new works is too high relative to anticipated income? To me this is a questionable conclusion although the paper states that it can document that works are performed more frequently (plus 15 %) once they are out of copyright than when they are under copyright protection.

The extension of the argument that new works are performed less often because of licensing costs is that artistic directors select which operas they will perform based on whether or not they have to pay royalties. Why not go for Mozart, when his work is in the public domain, over, say, John Adams, the composer of Nixon in China, Doctor Atomic and a number of other modern operas. Could licensing fees really be that significant a disincentive and does payment of royalties skew the decisions as to which works to produce? I think this is a dubious proposition where adding 2 plus 2 has yielded 5. Yes, many fewer modern operas are produced than classical works, and yes, modern operas require payment of copyright licensing fees whereas classical works don’t. But is there a direct correlation between these two sets of facts or are there other factors at play—factors such as the tastes of “average” opera-goers like me?

In a search to find out, I contacted the artistic director of my local professional opera company (Pacific Opera Victoria), Maestro Timothy Vernon, putting the question to him. He responded that “royalty payments are important in drawing up a workable budget, but are seldom if ever a determining factor in deciding to produce any given opera.” Maestro Vernon said that if a copyrighted work is chosen, there will be a negotiation with the publisher, taking into account factors such as the size of the company, its audience and budget, and the popularity of the work. As artistic director, while mindful of financial parameters, first and foremost he considers artistic aspects in making choices as to what works to offer to his audiences, recognizing that there are 400 years of opera creation to draw from.

That is only one view, but I suspect it is a common view among those who determine what works to offer audiences in the opera world. Artistic considerations come first.

Another factor to consider is the cost of royalties in comparison to the considerable expense in putting on an opera. I am not privy to what it costs to license an opera production but as Timothy Vernon noted, often a negotiation takes place. In the elusive search for truth, I went on the internet and tried to research the cost of vocal scores and full scores for a couple of modern operas, namely two by John Adams, Nixon in China and Doctor Atomic. Some well-known sources of musical scores are the famous British music publisher Boosey and Hawkes and the longstanding US firm of J.W. Pepper (which sells the Boosey and Hawkes produced vocal score of Nixon in China). Ordering the vocal score of Nixon directly from Boosey and Hawkes will cost $99 (all prices in USD). If ordered from J.W.Pepper the price is a bit cheaper at $85. The full score is available for only one piece from the opera, Chairman Dances, for $45. Boosey and Hawkes informed me that the full score for Nixon was not available for sale, but perhaps it could be available “to hire”. The full score of Doctor Atomic is available from J.W. Pepper for $175 and just the vocal score for $75. This seems like a pretty modest sum, but then I am not sure how many copies are required. I assume that if a large number are purchased for the choir, a bulk rate could be negotiated. In sum, the amounts involved are more than trivial but less than significant, and compared to the total cost of mounting an opera, the cost of copyright licensing can hardly be considered the key factor in determining whether or not to stage a particular work. To the question posed “Does copyright actually encourage the creation and promotion of new opera works?”, I would have to answer that it certainly does not discourage it.

While I disagree with the proposition that “copyright may act as a barrier to entry and licensing cost hurdle for new, more avant-garde operas, particularly for new productions that are outside of an opera house’s standard production repertoire” (because the WIPO research piece overstates the role of copyright fees in determining which works get air time), the issue of how new pieces can get performed in order to attract recognition and popularity among audiences is a real one. The author of the WIPO document (Alexander Cuntz) offers a couple of suggestions to remedy this problem. First, he proposes that consideration be given to establishing a new collective management system for licensing opera productions, which would require that a new collective rights management organization be established.

Another is to encourage the testing of new opera on both stage and on digital platforms, in order to give new productions greater exposure. If copyright fees are truly a disincentive to staging more new operas (a conclusion about which I have reservations), he argues that lower streaming royalties could be negotiated to encourage digital productions. However, if copyright fees are not the real problem but simply mask the basic issue which is the unfamiliarity of audiences with new works, distributing productions online will only partially solve the problem. Digital distribution will reach more audiences, but there are two issues that need to be addressed; production costs and revenue generation. Production costs for a digital opera production may be somewhat less given that it only needs to be performed once, and then recorded, but initial costs will still be close to a live performance. On the revenue side, it has proven difficult in many fields to raise significant revenue from digital offerings, or at least as much revenue as from a live performance. A livestream performance should bring more revenue than a recording, but even a livestream performance is unlikely to begin to match the cost of seat at a live opera. Views of a recorded performance will generate a much lower return. One can argue that the lower unit cost of a digital performance can be offset by repeated viewings, but this is unlikely to close the revenue gap.

The WIPO paper posits the conundrum that copyright exists to incentivize new production yet, if you buy the argument in the study (which I don’t), it also tilts the playing field in favour of public domain works because of the cost of royalties. However, you could make the same argument about plays or symphonies, but I doubt if the timeless popularity of Shakespeare is a result of Hamlet or Romeo and Juliet being in the public domain as opposed to the work of any modern playwright. Rather it is a result of audience choice, and familiarity with those classical works that have stood the test of time precisely because they are the best of the lot. Artistic directors have learned to their peril that while they may wish to “educate” their audiences and challenge them with new, sometimes avant-garde works, the operas that pay the bills come from a limited repertoire of classical favourites. The finger of copyright rests very lightly if at all on the scale that determines which operas get selected for production. In fact, I will wager that in almost all cases, copyright is scarcely a factor at all.

© Hugh Stephens 2021. All Rights Reserved.

Making Sausage: How the CASE Act Finally Became Law

To kick-off 2021, which we all hope will be a better year than the last annus horribilis, let’s look back at one of the closing chapters of 2020, the last minute passage in the US of the COVID-19 relief package and government funding bill which was finally signed into law by Donald Trump on December 27, 2020. While of primary interest to many Americans because of the COVID relief payments contained in the bill, it also included an important piece of copyright legislation, the CASE (Copyright Alternative in Small-Claims Enforcement) Act. How this welcome legislation ended up being included in the year-end spending bill is part of the “meat-grinder” story of US politics. It started with an individual Senator.

One of the unique features of the US congressional system is the power that elected members of Congress exert over the legislative process, unlike the Westminster system that readers in Canada, the UK, Australia, New Zealand, and India (among others) will be familiar with. Under the Westminster model, the executive branch, aka the “government”, usually controls the legislative branch (Parliament) through an elected majority or coalition. Once legislation has been introduced by the government, it is normally passed by Parliament and becomes law subject to the normal process of review through an all-party committee–which in most cases is dominated by government members. By contrast, in the US system there is no guarantee that legislation desired by the President will become law.  Congress is not easily controlled, especially if one or both Chambers of Congress are dominated by a party different from that of the President. Given the US system of checks and balances, as we have seen when an executive branch (Administration) does not control the legislative (Congress) branch, all sorts of things can happen—or not happen. Just ask Barack Obama.

Moreover, individual Members of Congress–normally Senators of long-standing–have far more power than individual Members of Parliament in a Westminster system. They can hold up legislation by placing a “hold”, thereby preventing it from reaching the floor for a vote (assuming they have the support of their Senate leader), or broker deals to add amendments to a piece of legislation or even add unrelated legislation to a “must pass” legislative bill, tacked on as a free rider. Usually the free riders are bills that have been unable to get legislative traction for one reason or another yet are sufficiently unobjectionable that their passage as part of a larger, important spending bill (which usually has bipartisan support by the time it goes to a vote) does not become a make-or-break issue. It is standard practice that many extraneous bills are added as “decorations” to the annual year-end spending bill, and 2020 was no different.

Assuming passage in both Chambers of Congress, there is one more step before a bill—with all its “decorations”—becomes law. It goes to the President for signature. The President can sign, not sign, or veto the bill. While it may seem strange, there is a distinction between not signing and vetoing. If the President does not sign a bill (but does not veto it), it still automatically becomes law ten days (excluding Sundays) after it has been physically conveyed to the White House. However, if the President vetoes the legislation by sending it back to Congress, it is blocked–but can still become law if the veto is overridden by a two-thirds majority vote in each Chamber, with both the House and Senate needing to sustain the override. So much for the civics lesson for those of you who have forgotten, or never knew, the arcane details of how the US system works.

So how does all of this relate to copyright? The history of the CASE Act is an illustrative example of how a determined and obstinate Senator can block the expressed will of both Chambers of Congress, but also a lesson in how a strategic move by supporters of the Act finally succeeded in getting it passed by attaching it to 2020’s critical year-end money bill, thus getting it through the meat-grinder and bypassing the obstruction of one Senator, Ron Wyden of Oregon.

The CASE Act may not be much of a household word to creators and those interested in copyright outside the United States, but in the US it is a welcome and important step forward in allowing smaller creators to deal with copyright infringements of their works without having to resort to expensive court procedures. Think small claims court for copyright holders. The CASE Act will establish a Copyright Claims Board within the US Copyright Office where small claims can be adjudicated. Claims Board findings will not be binding and can be appealed to the courts, but nonetheless will offer an important alternative to expensive litigation. The Act has been opposed by several anti-copyright groups, such as the Electronic Frontier Foundation, Public Knowledge and other “usual suspects”, who have attacked it on the basis that it becomes easier for copyright owners to file infringement claims. This is perfectly true, and is precisely the point of the legislation, which is to level the playing field for small creators. There are several limitations to prevent any supposed “abuse” of process, such as limits on the amount of damages that can be claimed ($15,000 per work and $30,000 per claim) as well as an opt-out for the accused infringer who has the option of declining to participate in the process, instead resorting to litigation.

The legislation in its present form was introduced into the House of Representatives in May, 2019 and in October of that year passed overwhelmingly by a bipartisan vote of 410-6, with 15 abstentions. A companion bill was introduced in the Senate sponsored by both Republican and Democrat Senators and was approved unanimously by the Senate Judiciary Committee. At that point, Senator Ron Wyden (D-ORE) placed a “hold” on the Senate bill, stopping it in its tracks and preventing it from moving forward until he released his hold. Wyden claimed that he was not opposed to the Bill per se but had concerns with some of its provisions. For example, he claimed the ceiling of $30,000 was too high, that minors posting memes could be targeted, that the small claims process would stifle fair use, and on and on. All these and other points were effectively and carefully rebutted in detailed post written by Terrica Carrington of the Copyright Alliance, which along with many other creative and pro-copyright groups, supports the legislation. Negotiations were undertaken with Wyden’s office over a period of several months to try to reach a compromise, but it became clear that he was not really interested in finding a solution. A group of professional photographers in Oregon even tried to shame Wyden, putting up a billboard in Portland in January of 2020 that asked “Why are you holding Oregon creators hostage?” Wyden would not be moved.

Fast forward to late December 2020 and the Congressional impasse over approval of the $900 billion COVID-19 relief bill, a piece of legislation with 5,593 pages, apparently the longest bill ever. Along with provisions that would provide immediate financial relief to American families and businesses, it included a $1.4 trillion spending bill to keep the US Government going, and a host of other measures bundled into the year-end legislation. The CASE Act was one of the add-ons, along with a number of other pieces of added legislation. The New York Times reported that among the additional items was legislation regulating horse-racing, a pet project of Senate Majority Leader Mitch McConnell from Kentucky, as well as measures as varied as eradication of murder hornets,  control of online sales of e-cigarettes to minors and authorization of federal land for the construction of the Teddy Roosevelt Memorial Library in North Dakota.

The Consolidated Appropriations Act, 2021, with all these inclusions, finally passed in the Senate near midnight on December 21 by a vote of 92-6 and in the House by 359-53. Such bipartisan action is rare in Washington these days, but the clock had run out both on funding the US government as well as getting needed relief during the COVID-19 pandemic to US families. After the key compromises on spending were worked out between the Republican and Democrat congressional leadership, the Bill passed quickly with little scrutiny. Donald Trump threatened to veto it for various reasons (none related to the Case Act) but in the end, he signed.

How much attention was paid by legislators to the “add-ons” such as the CASE Act and others? It’s fair to assume that not a lot of attention was paid to many of the add-on provisions in the dying days of the “Lame Duck” session in December 2020, but with respect to the CASE Act there had already been plenty of scrutiny over a number of years, as well as thorough review in Congress when it was first introduced. It hadn’t progressed legislatively because, as pointed out, it had become hostage to the individual agenda of one Senator despite widespread support. With its passage, there were the predictable “sky is falling” claims from anti-copyright groups, who criticized the legislative process as well as the legislation itself, but in the end the will of Congress was enacted through the omnibus mechanism of the Consolidated Appropriations legislation. The US Copyright Office, which has supported the CASE Act proposals since release of its own detailed study of the issue back in 2013, will now be required to establish detailed procedures to implement the legislation.

While omnibus bills are arguably not the most transparent legislative procedure for getting things done, they are increasingly being used, and not just by the US Congress. In Canada, the previous Conservative government of Stephen Harper had a proclivity for bundling many unrelated issues into omnibus finance bills. Critics claimed that this tactic made it impossible for Parliament to adequately scrutinize legislation. Indeed, the Harper government passed the last amendment to Canada’s Copyright Act, a provision that extended the term of copyright protection for sound recordings from 50 years after release to 70 years, in the 2015 omnibus finance bill. Despite criticism from opposition parties at the time, the subsequent Liberal government of Justin Trudeau has also resorted to omnibus legislation, with a budget bill that included legislation related to immigration, food and drug regulation, parks and indigenous services, and other unrelated items. Given the delays that legislatures often face today owing to legislative backlog, as well as the increasing inability to find bipartisan solutions as is evident in the US Congress, bundling legislation is becoming an increasingly common means of getting things done.

Was inclusion of the CASE Act provisions in the year-end spending bill the ideal legislative solution? That probably depends on your perspective. It has been said that politics is the art of the possible, so if Ron Wyden was justified in using the rules to block a piece of legislation that he didn’t like, proponents were equally justified in harnessing the rules to achieve their objective. The creative community in the US, which struggled for years to bring something like the CASE Act into being, was delighted with the outcome. Ron Wyden, who saw his one-man “hold” tactic defeated, probably less so.

Otto von Bismarck is reputed to have said, “Laws are like sausages. It’s better not to see them being made.” This particular sausage took a long time to get made, but in the end it emerged intact from the meat-grinder. It is now part of the menu; a welcome additional measure to help the creative community in the US protect its rights against widespread copyright infringement through what the Copyright Alliance describes as, a “voluntary, inexpensive and streamlined alternative”. That’s pretty tasty sausage.

© Hugh Stephens 2021. All Rights Reserved

2020. The Annus Horribilis—but Creators and Creative Industries will Bounce Back

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They say that hindsight is 20/20. Well, looking back at 2020, the annus horribilis, one could be forgiven for not having a clear view of what was to come when the year began, with vague rumours circulating of yet another virus in China emanating from wild animal markets. Surely it couldn’t be as bad as SARS? As this challenging year draws to a close, we are all a little bit wiser and a little bit more skeptical of the “don’t worry; it’s all under control” messages from those who are supposed to know.

COVID-19 around the World

Looking back at 2020 wearing a copyright lens, what do we see? It’s been a devastating year for creators, especially those who perform live for a living. Early in the pandemic, in March, just a couple of weeks after the first lockdowns were imposed, I wrote about the initial response from governments and others to the plight of creators who saw their livelihoods imploding. Concerts, plays, and other stage performances were cancelled overnight. Galleries, libraries, bookshops and record stores shut down. Half the world (the half with internet access) went online. Creators and creative industries responded with a range of virtual offerings and new online materials for adults and children. Unfortunately, others took advantage of the situation to advance their own agendas, like the Internet Archive’s unilateral declaration that it would be happy to make other people’s (copyrighted) works available online for free. As I wrote in April in this blog, (“COVID is Not an Excuse to Throw the Accepted Rules Out the Window: Copyright as the Canary in the Coalmine.”);

“…it is extremely disappointing to see special interest groups taking advantage of the COVID crisis to push their personal pre-COVID agendas. In the case of copyright, this consists of using the crisis to attack the fundamentals of copyright protection, namely the right of creators to control distribution of their work, and thereby to earn a return on the sweat equity they put into the creation in the first place.”

By the fall we were into the “second wave” and the impact of the pandemic on the copyright and cultural industries was even more apparent. My blog in November “Covid and Culture: What’s Around the Corner”) chronicled the damage to cultural institutions, such as museums and heritage sites in various parts of the world where the lack of visitors has, in some extreme cases, resulted in lack of maintenance, vandalism and a cessation of research and preservation activity. The economic damage to the creative sector even in western countries with generous government financial support programs and good internet infrastructure has been devastating. Brookings estimated that the cost to the creative sectors in the US for just the period April to July to be about $150 billion with the loss of 2.7 million jobs.

New Copyright Interpretations in Canada Compound the Challenge

The economic hit from COVID was compounded by the ongoing value gap faced by performers trying to live off the digital pennies distributed by online platforms and, in Canada, a court decision that had the effect of undermining an important element of copyright protection. This was the result of the ongoing legal saga pitting York University versus Access Copyright, a landmark case which took yet another twist. Back in 2017, Access Copyright (AC), the copyright collective representing authors and publishers, won a significant victory at the Federal Court regarding York University’s unlicensed use of materials in AC’s repertoire. The Court ruled that York (which was in effect acting as the proxy for most post-secondary institutions in English Canada) was required to pay the interim tariff (i.e. regulated license fee) established by the Copyright Board of Canada for use of AC’s materials, while it also dismissed York’s claim of fair dealing with regard to its use of these materials. In other words, the Federal Court ruled that if any content within AC’s repertoire was used, payment of the tariff was mandatory, not discretionary. York appealed.

In April of this year the Federal Court of Appeal (FCA) delivered a stunning decision. It overturned the initial ruling that had affirmed the mandatory nature of the interim tariff and went on to declare that all tariffs, interim or final, established by the Copyright Board are discretionary. Moreover, the FCA declared that payment of the tariffs always had been discretionary despite decades of practice based on the assumption that once certified by the Board, tariffs were applicable to all who used materials in a copyright collective’s repertoire, whether licensed from the collective or not. This stood the established copyright order on its head, as I wrote in a blog posting, “When is a Mandatory Copyright Tariff mandatory only if you Opt-in?”. The FCA’s decision has in turn been appealed to the Supreme Court of Canada, which has agreed to hear the case. This could, however, take years. In the meantime it would be far better for Parliament to address this anomaly by amending copyright legislation to undo the damage of the FCA’s decision. There are expected to be opportunities to do this in the next year or so as there are several copyright-related issues that need addressing.  

News Publishers vs Big Internet Platforms: Revenue Sharing in France, Australia and Elsewhere?

One such issue is that of the relationship between the big internet platforms and news providers. There is growing global pressure for the introduction of measures to require the platforms to share with content providers some of the online advertising revenues that are generated by using excerpts of their content in search listings and social media posts. France and Australia have been the first two countries out of the starting blocks on this, although the UK, Canada and some EU countries have not been far behind. There has been less pressure in the US, although a proposal has been floated in Congress to grant an anti-trust exemption to news publishers to allow them to negotiate collectively with the platforms without falling afoul of competition law.

As I wrote back in April (here), in France the authorities took the gloves off and gave Google three months to engage in good faith negotiations with publishers to come up with an agreement that would result in payment to news content providers. France was thus the first EU member state to put in place measures to implement a new “neighbouring right” provided to publishers as part of recent revisions to the EU Copyright Directive. Google appealed the French Competition Authority’s ruling, and lost. The result has been a recent announcement that Google has finally reached agreement with six major French news publishers, including Le Monde and Le Figaro, on a revenue sharing deal. This isn’t the first time that Google has blinked.

In October of this year, Google announced it was establishing a $1 billion fund (over three years) to pay for curated news content, starting initially with Germany, Brazil, Canada, the UK, Australia and Argentina. Most of the initial agreements were with smaller, lesser-known publications. Perhaps not surprisingly, these are countries where governments have been actively pursuing measures to level the playing field between those who create the content and those who benefit financially through distribution or indexing of this content. Australia has been particularly active, through its competition bureau, the Australian Competition and Consumer Commission (ACCC), which has developed a draft News Media Bargaining Code, targeted particularly at Google and Facebook.

Both platforms pushed back strongly, trying to mobilize Australian consumers to oppose the ACCC’s plans by threatening to reduce or curtail services. The Australian government indicated in no uncertain terms that it was not prepared to back down, and Google was denounced by Australian Treasurer Josh Frydenberg for using bullying tactics. Immediately after Google announced its media fund, (which included some smaller Australian media players), it promptly put its Australian program on hold because of its unhappiness with the ACCC’s draft code. As I wrote at the time, it was a classic case of bait and switch. (“Google in Australia: Dangle the Carrot, then Yank it Away”). That tactic didn’t work, however,  and in early December of this year Australia proceeded to introduce legislation that will require Google and Facebook to negotiate with Australian news organizations for use of their content in Facebook’s Newsfeed and Google search. If the two sides are not able to reach agreement, there is provision in the legislation for compulsory arbitration. Many countries, including Canada, the UK and the EU are watching to see what happens in Australia.

In Canada, after having announced that its newly announced media fund would include Canadian media, Google likewise suspended its program pending negotiations with major media outlets. It has managed to sign up only two small digital news platforms. The major players, who are all members of the industry association News Media Canada, have mounted a major campaign to get the Canadian government to follow the Australian example. In November they released a study “Levelling the Digital Playing Field”, that takes aim straight at Google and Facebook, seeking revenue sharing for the platform’s use of news content;

Google and Facebook are two of the biggest companies in the world.  You might say they’re modern-day Goliaths. They are using their monopoly power to scoop up 80% of online advertising revenues and to free ride on the news content produced by hardworking journalists and publishers across Canada. Maybe it’s time to start leveling the playing field a little, so the Davids of this world can start fighting back.”

Not that the major Canadian media players are exactly “Davids” but they are facing financial stresses like most media organizations globally. One response has been a Canadian government promise of tax credits to support the hiring of journalists, but this program has yet to be rolled out despite being announced two years ago. Back in 2017, publishers proposed direct subsidization of journalist wages, a proposal that provoked considerable debate and negative comment. These kinds of subsidy programs are controversial because they smack of government intervention, potentially compromising media independence, although the Local Journalism Initiative, a five-year $50 million government-funded program is now in effect, administered by none other than News Media Canada, along with some smaller non-profits.

Amending copyright legislation to create a “publishers’ right” (as is the case in the EU) is another proposal that would strengthen the hand of content creators in negotiating with the major digital platforms. Back in September I speculated that Heritage Minister Guilbeault might introduce such legislation in the fall session of Parliament, but this has not happened as the Ministry is instead preoccupied with legislation to amend the Broadcasting Act. Although providing additional neighbouring rights under copyright legislation is one option, News Media Canada seems to prefer the Australian approach of using competition law to force the platforms to negotiate revenue sharing. This ongoing tussle between the top digital platforms and news content providers is one of the big copyright stories of 2020, and the push to require Google and Facebook to share the wealth—ad revenues created in part from their unlicensed use of content created by others—is one of the few bright spots for creators coming out of 2020.  What the final result will be in 2021 remains to be seen.

The Coming Year

And speaking of 2021, let’s hope it will be a better year for everyone including those in the creative sector. As I write, the first vaccine shots are being given in several countries, and therein lies hope that the rhythm of life will resume a more normal pace in the coming year. If the pandemic has taught us anything, it is that the creative arts are among the things that make life worth living. A world without culture and creativity would be a pretty bleak place. The copyright world, along with many other sectors, took a huge hit in 2020, but the arts and its practitioners are resilient.

Speaking personally, I am looking forward to the resumption of live theatrical and musical performances, being able to escape to a big-screen experience at a local cinema and enjoying art and photographs at a gallery or museum without wearing a mask and keeping two metres away from everyone around me. (That is besides getting my hair cut properly!). We will only know from hindsight whether these hopes will be realized, but perhaps a year from now when we look back at 2021, we will declare it to have been the year of recovery. Fingers crossed.

© Hugh Stephens, 2020. All Rights Reserved.

Victoria’s “More Peace, More Justice” Mural and the ACAB Controversy: Who Was “Morally Right”?

Credit: author

Victoria’s “More Peace, More Justice” Mural and the ACAB Controversy: Who Was “Morally Right”?

ICYMI, texting has brought many new terms into the English language. IMHO, there is a whole new language developing which, LOL, may leave the uninitiated grasping for the meaning of text abbreviations which, to others, is obvious. BTW, you might be wondering what all this has to do with copyright, but if you stay tuned you will find out. It all has to do with an acronym, ACAB, hidden in the design of a piece of street art commissioned from a group of 17 artists by the City of Victoria, the capital of British Columbia, as part of its commitment to fight systemic racism. Entitled “More Peace, More Justice”, the work was painted on the pavement at Bastion Square, in the heart of the “old town” part of the city. It celebrates BLM and BIPOC groups and was organized through the African Heritage Association of Vancouver Island. The ACAB acrostic was buried in the letter “S” in the word “Justice”.

If any of these shorthand expressions are unknown to you, you can look them up. You might find that ACAB might stand for “Always Carry A Bible”, but the more common usage today is used to describe the attitudes of certain groups toward law enforcement. It is commonly rendered as “All Cops are Bad” or, more pejoratively “All Cops are Bastards”.  It turns out that this is not a new acronym, although I have to confess that I had not heard of it before. (Maybe this says something about the cocoon I apparently live in). Until recently, if I’d seen someone with an ACAB tattoo on their arm, I wouldn’t have had a clue as to its meaning. ACAB is reported to have originated in the UK in the 1920s. It became popular in punk rock circles in the 1980s and 1990s, and more recently has become quite widespread during anti-racism protests.

What started out as a gesture of reconciliation by the City of Victoria to reach out to marginalized groups ended up being highly controversial and splitting the community as a result of the “secret” insertion of ACAB in the street mural. When the offensive lettering was pointed out, Chief Constable Del Manak of the Victoria Police objected, calling the inclusion of the acronym disrespectful and offensive, and City Council voted to paint over the letters. Although the sponsoring organization said it did not condone the secret message, a number of the artists staged a sit in to block the City’s action. As a result, city officials backed down and instead engaged in discussions and negotiations with the artists. The final outcome, which in the eyes of Chief Manak was just as offensive, if not more so, blanked out the letter “S” and in its place inserted;

“This letter has been censored by the City of Victoria influenced by the Victoria Police Department. In doing so, Victoria is contributing to the silencing of Black and Indigenous voices and experiences across this land”.

A compromise of sorts, I guess, but certainly not one to calm troubled waters. I am going to stay away from the substance of whether or not the artists were justified in including the anti-police message in their mural, but suffice to say they got plenty of attention—lots of it unfavourable. A number of irate citizens weighed in, including one who decided to spray-paint over the revised wording. Some pointed out that since the City had commissioned the work, it had the right to amend it without negotiating with the artists. One local artist wrote to Victoria’s daily paper, the Times-Colonist;

“I have sold a number of pieces of both my own and commissioned work. I could not imagine incorporating a political message of my belief into a piece of commissioned work, without the knowledge of the purchaser. It would be unprofessional, as well as morally unethical”.

No arguments there. But then he continues;

I was angered to read that the artists responsible for the work were involved in “weeks of negotiations with the city” as to how to deal with the offensive acronym…I have been fortunate enough to purchase a few pieces of original art in my lifetime. Since I bought and paid for them, they belong to me. I can do whatever I wish with them…Since the city owns this installation, the city should not really have to consult with anyone as to what happens with the piece.”

Hmmm. Hold on a sec. I’m not so sure about that. As much as it may sound logical that if you own it, you can do whatever you want with it, in the case of art the situation is not so clear. First, Canada no longer follows the “work for hire” doctrine (applicable in the US) so just because a work is commissioned, that does not mean that the purchaser owns the copyright. It is retained by the artist, and in this case the copyright is presumably held by the two artists who painted the letter “S”, or perhaps collectively by the entire group of 17 artists. And if they hold the copyright, they can exercise their “moral rights” to prevent unauthorized alteration of their work.

What are moral rights, especially in a Canadian context?  The Berne Convention, the international treaty that regulates copyright and to which Canada has been a party since 1928 (actually since 1887 as part of the British Empire but since April 10, 1928 in its own right), has this to say about moral rights, in Article 6bis;

“(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

In Canada, the right to object to any distortion, mutilation or other modification is known as the “right of integrity”. According to well-known copyright lawyer, educator and blogger, Leslie Ellen Harris, writing on the website LawNow;

“The right of integrity is the right of the author to object to any changes of his work that may harm his reputation as an author. This harm would be a question of fact that would have to be determined in court through the testimony of witnesses. For example, painting a moustache on the Mona Lisa (if the Mona Lisa was still protected by copyright) would likely be a violation of Da Vinci’s moral rights”.

The best known moral rights case in Canada involved the artist Michael Snow. Snow’s work Flight Stop, a representation of sixty geese, hangs in the main galleria of the Eaton Centre in downtown Toronto. Commissioned by the Centre’s developers in 1979, in 1982 the geese became entangled in a legal controversy over Snow’s moral rights. Just before Christmas of that year, the management of the Centre decided to bedeck Snow’s geese with red ribbons and use photos of the bedecked geese on promotional items. Snow objected, claiming that the addition of the ribbons altered the character and purpose of the work and negatively affected his artistic reputation. Mall management disagreed, and the case went to the Ontario High Court (Snow v Eaton Centre Ltd), which ruled in Snow’s favour. The Eaton Centre was given three days to remove the ribbons, which they did. Snow had made his point and asserted his moral rights.

Now to return to the “More Peace, More Justice” street mural in Victoria, and its hidden ACAB message. It seems to me that the City of Victoria was wise to have entered into discussions with the artists rather than peremptorily disfiguring the work, no matter how noble it felt its cause was. Perhaps the Council actually took some legal advice on the matter?  Maybe a group of 17 young artists would not have had the staying power to take the City to court, but who knows? A rich benefactor may have stepped up. It would have been very messy, although the “compromise” that was worked out was not so clean either.

Anyway, I hate to disappoint our local Victoria artist who seemed to think that an owner or collector can do whatever he or she wants with a piece of purchased art. It ain’t so. So I conclude that in the end, as unsatisfactory as the outcome may have been to a number of people, the City of Victoria did the right thing by negotiating and coming to a compromise solution agreed to by the artists. 

By way of conclusion, let me add one more acronym to the alphabet soup I have dropped into this blog. WIPO. The World Intellectual Property Organization, the international body that administers the Berne Convention and other intellectual property (IP) treaties. Who would have thought that in the end WIPO would probably have protected the right of a group of street artists to insert ACAB into a piece of commissioned street art?

Well folks. I have to run. TTFN.

© Hugh Stephens 2020. All Rights Reserved.

The USTR Notorious Markets Report: Does it Provide Free Advertising for Pirates?

The USTR Notorious Markets Report: Does it Provide Free Advertising for Pirates?

It’s that time of year again[i] when the Office of the US Trade Representative (USTR) seeks public comment and input to its annual “Notorious Markets” exercise, a supplement to the annual USTR Special 301 report on the intellectual property practices of other nations. The Federal Register notice indicates that USTR;

“requests comments that identify online and physical markets to be considered for inclusion in the 2020 Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List). The Notorious Markets List identifies examples of online and physical markets that reportedly engage in and facilitate substantial copyright piracy or trademark counterfeiting. The issue focus for the 2020 Notorious Markets List will examine the use of e-commerce platforms and other third-party intermediaries to facilitate the importation of counterfeit and pirated goods into the United States.”

The bulk of the comments provided come from industry which does the research and draws to the attention of USTR the websites, e-commerce platforms and physical markets that engage in the widespread sale of–or which facilitate the distribution of—infringing and counterfeit products. A good example is the submission from the Motion Picture Association that extensively documents the illicit activities of a number of linking and streaming websites, direct download cyberlockers, streaming video hosting services, illegal IPTV services, piracy devices and apps, peer-to-peer networks and BitTorrent portals, hosting providers, certain domain registries, and some payment providers, ad networks and online advertising services. In total, over 50 entities are named, yet the submission notes that this is not a comprehensive list, merely illustrative. Among the names are creative monikers (that clearly reveal their marketing intent) such as Mr. Piracy, Gimyvod, Everstream, Topflix, Unblock Tech and a host of other less descriptive “businesses” living in the shadowy corners of the internet.

Physical markets are also named (none in the US), with the one closest to “home” being the Pacific Mall in Toronto, (although it was dropped by USTR in last year’s report). Pacific Mall also made it onto the EU’s similar Counterfeit and Piracy Watch List in 2018. I visited the Mall a couple of years ago (see my account here) and found it more of a flea market than a hotbed of pirated and counterfeit goods, so perhaps the persistent efforts to put it in the spotlight have had some positive results.

USTR is quick to note that its Notorious Markets report, “is not an exhaustive account of all physical and online markets worldwide in which IP infringement may take place,” and it “does not make findings of legal violations nor does it reflect the U.S. Government’s analysis of the general IP protection and enforcement climate in the countries connected with the listed markets”. Yet inclusion on the list is no small matter. Last year Amazon was listed, but indirectly by naming Amazon’s websites in several countries outside the US (UK, Canada, France, Germany, India). It’s not that platforms, sites or markets distributing or facilitating the sale of pirated or counterfeit goods don’t exist inside the United States; it’s just that it’s not USTR’s practice to report on them.

Despite this, in the MPA submission there is indirect mention of several US-based entities such as Cloudflare, eBay, and Facebook Marketplace. Cloudflare has long been a problem, as I wrote about last year (here), allowing its technology to be used to shield from scrutiny pirate sites and other websites engaging in illegal activity. Its technology provides a reverse proxy functionality to hide the real IP address of a webserver. Unfortunately, Cloudflare is not too fussy about who its customers are. However, despite referencing Cloudflare and others, MPA did not specifically list any US companies for inclusion on the list. But the EU had no such hesitation, listing Cloudflare and noting in its Watch List report that the service is used by approximately forty percent of the pirate websites in the world to hide their true identity.

When it comes to compiling the list, most of the research and heavy lifting is done by US trade associations and others who file submissions identifying problem markets or services. Besides the film industry, other sectoral trade associations that usually “comment” to USTR represent the music industry, video and electronic games, publishing, footwear and apparel, technology, computer software and some others. As comments are posted, rebuttals and clarifications are sometimes also submitted during the process by entities protesting their potential inclusion, although the most egregious dedicated pirate and counterfeit sites do not bother, precisely because they have decided to ignore US law and trade actions.

Not all the submissions are from industry or those targeted, however. This year, the online journal TorrentFreak highlighted an interesting submission from a Las Vegas based legal practitioner and self-described “concerned taxpayer”, Jim Zhou. According to Zhou, the Notorious Markets List has just the opposite effect from that intended. Rather, it operates as a facilitator of the traffic that it seeks to prevent. He argues that;

“By giving it an official seal of notoriety, the presence of this regulation effectively becomes advertising and an unwitting endorser of the services or product.”

It’s almost as if a pirate website or illicit merchant could advertise “Selected for the US Government’s Notorious Markets List for the Fifth Year Running!” If consumers of pirated content or counterfeit goods want to find out where to find the best range of product, according to Zhou they need look no further than USTR’s annual report. It becomes a sort of Consumer Reports for those researching the “best” pirate and counterfeit products. He argues that not only will consumers of illicit products use the report to find what they seek, but statistics on the numbers of users per illicit site reported by USTR is useful information for advertisers seeking to reach consumers of these products, and for the sites themselves to market themselves to advertisers. The list is given wide media coverage every year.

It’s an interesting argument, albeit one that deserves to be approached with a healthy degree of skepticism. Is there any proof that an illicit site’s business surges once it has been elevated to USTR’s hit parade? None that I know of. In fact, there is a chicken-and-egg element to this because a site or service would not be on the list if was not already “successful” to some degree, having attracted the attention of legitimate providers of services, products and content that want to put it out of business.

I reached out and contacted Zhou to ask him how he had reached his conclusions. He conceded that he did not have any statistics but said that knowing how opaque markets work in other areas, he didn’t see why pirate and counterfeit markets would be any different. As an example from another sector, he cited the DARE (Drug Abuse Resistance Education) programs. DARE, whose aim is to prevent youth from succumbing to drug addiction through drug education programs delivered through schools, has been criticized in the past for ineffectiveness or inconclusive outcomes. (It has since revised its curriculum.) In Zhou’s view, DARE programs in the 1990s had the perverse effect of introducing kids to drugs rather than keeping them away from using. The marketplace for pirated and counterfeit goods is no different from any other underground marketplace, he stated, where reputation for having the “good stuff” is all-important. It certainly gives one pause for thought.

Anecdotally, I can testify from personal experience in China a few years back about a similar phenomenon. The more that American and European companies complained to their governments about the infamous “Silk Market” in Beijing, and the more those governments leaned on the Chinese authorities to take action to close it down (with resultant publicity), the more popular it became. I have seen tourist brochures featuring the Silk Market (which may have sold a bit of silk, but was mostly a market for cheap knock-offs and, at the time, products like pirated DVD movies) as one of Beijing’s major attractions, on a par with the Temple of Heaven and the Forbidden City! (By the way, Beijing’s Silk Market remains on the USTR Notorious Markets list).

So perhaps Mr. Zhou has a point. That said, the Notorious Markets report has gained considerable negative prominence in recent years, and a number of companies go to considerable lengths to stay off it. This suggests it has some efficacy as an anti-piracy and counterfeiting tool. Being on the list doesn’t result in any direct legal action against a particular listing, nor is that the intended result, but it can lead to pressure being brought against named entities by the governments of the countries in which they are based. Moreover, it is hard to believe that the “free advertising” provided by USTR is of much use since the more popular a pirate site or service becomes, the more it is likely to be subject to sanctions and pressure to close down or change its identity. In the end, the result of getting free advertising from USTR may not be more business—but being put out of business.

© Hugh Stephens, 2020. All Rights Reserved.

[i] November 8, 2020 was the deadline for submission of comments and November 22, for rebuttals and other information.

Korean Copyright Reform: Don’t Stifle Korean Filmmaking

Used with permission

The Korean film industry is one of the major artistic and cultural successes in Asia. The industry was propelled to prominence in Europe and North America through the 2019 film “Parasite”, which won the Palme d’Or at Cannes and Best Picture (plus three other awards) at the 2019 Academy Awards. Korean films have come a long way from the days of the “screen quota”, a measure first imposed by the Korean government back in the 1960s in an effort to promote Korean content. It required Korean movie theatres to devote a minimum of 146 days per year to screening Korean films, and became a major bone of contention between Korea and the US in the period leading up to the negotiation of the Korea-US free trade agreement. The screen quota had the perverse effect of forcing many theatres to go dark for weeks at a time for want of Korean content. A much-reduced screen quota still exists on the books but has become moot because of the spurt in creativity of Korean filmmakers and the resultant investment in the sector. This demonstrates that good stories, production values and talent make films commercially viable, not government quotas. Typically, domestic Korean films take 50-60 % of the box office, a high percentage in comparison to many other countries. The Korean film and television industry generated a total economic contribution of USD18.45 billion in 2018 and supported over 300,000 jobs. That is quite a record—but it is in jeopardy.

Korean filmmakers, like those in other countries, draw inspiration for telling compelling stories from real-life events, but a currently proposed amendment to the Korean copyright act could put such historically or “true story” based films at risk. The amendment would create a “portrait right”, which would be accorded to “a person (in Korea) who can be widely recognized by the general public as the object of a portrait”. This would confer a property right on that person or their estate that could be utilized commercially. The right would exist for the lifetime of the person in question plus an additional thirty years. It is unprecedented for portrait or publicity rights to be incorporated into copyright law, and its enactment could enable publicly recognizable persons to block film productions in which they are portrayed. Recent domestic box office and artistic successes such as “The Age of Shadows” (a 2017 Academy Award submission) or “The Man Standing Next” (selected for the 2021 Academy Awards for Best International Film) might not have been made.

The great stories told through movies and television productions that we all enjoy so much are inspired from a variety of sources—novels, sci-fi epics, history, traditional children’s tales and, of course, real-life events and people. In a non-Korean context, think of films like Flight 93, Saving Private Ryan, Argo, All The President’s Men and others that are based on real-life events (although considerable poetic licence is usually incorporated into the scripts). Then there are biodramas like Milk, The Iron Lady, Erin Brockovich, and The King’s Speech, not to mention the popular Netflix series The Crown, with Season Four now released. Some of these works hew more or less to the historical record, others use real characters in highly fictionalized roles. There are also documentaries that tell a story using actual footage, some well-known recent ones being, They Shall Not Grow Old, Social Dilemma, Tiger King, Wild Wild Country, and so on. We all have our favourites. You can add your own. Now imagine that someone featured in those films objects to the portrayal of themselves, or perhaps a family member of a portrayed deceased person objects, can you imagine the chilling effect on creativity?

This is a problem that filmmakers already face, dealing with what is often referred to as the “right of publicity”. Normally if a studio is going to make a film about a living person, it acquires life-story rights. If it doesn’t there is a risk of a defamation or an invasion of privacy suit if the subject does not like the way in which they are portrayed. A good example of this was the lawsuit launched by family members of the deceased mariners portrayed in the film, The Perfect Storm, who sued for a portion of the film’s profits based on what they claimed was an inaccurate portrayal of the ship’s captain. The case was tossed on First Amendment grounds, but it shows the risks. There have been other cases in the US involving not only filmmakers but also makers of electronic games. In the US, these suits are normally dealt with through state-level legislation dealing with defamation. In some states, there is an exemption for filmmaking. Suffice to say, it’s complicated.

Imagine how much more complicated it would be if the right of publicity became a property right, incorporated into copyright law. In addition to acquiring life-story rights for the subject of a biopic, and the negotiations that take place to obtain rights that enable films to be made (licensing the rights to a book, script, music, and so on), filmmakers would be required to negotiate with those portrayed in a film, or with their estates assuming that copyright was still in effect. Making the publicity right an element of copyright law would greatly complicate film production; story-telling through films based on real events would grind to a halt.  

As noted above, in other jurisdictions publicity rights are protected by defamation or privacy laws, but they are not a property right protected by copyright. There is no creativity in being the subject of a film or book. Moreover, the definition of “portrait” in the proposed law is not clearly defined. The “portrait” does not even have to be of a famous person, simply anyone who can be recognized by the public. As another example, the award-winning Korean documentary In the Absence, a moving film about the Sewol ferry disaster that resulted in the deaths of 250 high school students, might not have been made because it clearly depicted the captain, who abandoned the ship and survived. If this clause survives and makes it into the revised law, this will impede a constitutional right to free speech and threaten filmmaking in Korea. At the very least, an exception to the portrait right is required for biopics, docu-dramas, films of historical fiction, documentaries, news broadcasts, and other similar works.

Another proposed problematic copyright act amendment in Korea is a proposal for “additional economic rights” for authors. This is a contract adjustment measure that would override freely negotiated contracts between authors and those with whom they have reached a contractual arrangement for licensing of rights, and is based loosely on the “best seller right” adopted in the EU (but not yet incorporated into member state law).  There is a symbiotic relationship between creators, such as authors or performers, and the distribution platforms (publishers, labels) necessary to disseminate their work. In most instances, the distribution platforms assume the risk by paying upfront for the rights to works which may, or may not, be successful. This proposed amendment would give authors a second bite at the apple if the work is very successful. The operative wording is, “in the event that there is a significant imbalance between the remuneration received by the author in return for the transfer of property rights…the author may request additional remuneration from the transferee”.

As in many things, the key lies in interpretation. What is a “significant imbalance”? And what impact will this have? Experience suggests that requiring a renegotiation of contract terms if a work is successful will result in lower upfront payments to authors as this creates great uncertainty for publishers who are required to make provision for potential additional payments if a work succeeds. Most authors prefer the security of a guaranteed upfront payment in lieu of a smaller initial payment which might be supplemented by additional revenue, but only in the case of unusual success. With regard to filmmaking, a high risk and expensive undertaking with contributions made by many different parties, it is important that copyright law not restrict freedom of contract. Fortunately, the current draft exempts cinematographic works from the additional remuneration right, as it should.

Other problematic amendments include the definition of “works for hire”, where the wording suggests that the author owns the work, even if completed as part of an employment contract. Although the amendment states that the work is “deemed to have been transferred” to the employer, the current law which states that the work is automatically owned by the employer is much clearer, removes any ambiguity and is consistent with the interpretation in most jurisdictions. Another potential concern is a provision on extended collective licensing, or mandatory tariffs. This is a common element of copyright law used by collective management organizations to apply approved tariffs to unlicensed users of music and publications.  Collective licensing normally does not apply to films and AV products, which in any case are meticulous about licensing content and music, and it is hoped that this will continue to be the case in Korea.

In sum, given the importance of its film industry to Korean culture and telling Korean stories, international best practices should be followed. Korea’s copyright laws should be designed to encourage its filmmakers, not stifle them.

© Hugh Stephens 2020. All Rights Reserved.

Does China Have a Copycat Culture? The Case of “Architectural Mimicry”

Source: http://www.shutterstock.com

It seems you can’t look at the news these days without the word “China” being in a headline. Will a Biden Administration be as tough on China as Trump? How will Justin Trudeau deal with the continued detention of Canadian citizens in China? What will Australia do about new Chinese trade retaliation? How will China’s actions in Hong Kong affect UK-China relations?

Whether it is these issues or accusations of cyber or research theft, planning to plant a “Trojan Horse” inside the critical telecoms infrastructure in the West, or hijacking intellectual property (IP) through forced knowledge transfer or just plain copying, China is getting lots of (negative) coverage. When it comes to IP, it is a popular view that China has an ingrained copycat culture, based on intellectual property free-riding, copying and otherwise appropriating brand-names, pirating copyrighted content and even stealing patents. The “West”, so the argument goes, is much more respectful of intellectual property rights (IPR) and is therefore more original and more innovative. There are no doubt elements of truth in these generalizations, as indeed there usually are in such assumptions, but how valid are they? There is plenty of anecdotal evidence to support the copycat theory; lack of innovation perhaps not so much.

Recently I came across an interesting book recommended by a friend, Bianca Bosker’s, Original Copies: Architectural Mimicry in Contemporary China,which seems relevant to this debate. Is this “mimicry” yet another example of China’s penchant for copying, or does it rather demonstrate that inspiration can be taken from many sources?

The book is not new, having been published in 2013, but I just stumbled across it. As reported by the BBC at the time, in a marketing ploy Chinese property developers came up with a new promotional device; make their custom designed communities look just like a town from somewhere else in the world. Thus, “Thames Town”, located in a suburb of Shanghai, has English pubs, a statue of Winston Churchill, red phone booths, an English-style cathedral, half-timbered buildings, and security guards dressed up in outfits that are probably supposed to resemble the guards at Buckingham Palace. What it doesn’t have, at least according to fairly recent reports, is people. There are places in China that recreate the canals of Venice, the chateaux of Versailles, the Eiffel Tower, a Scandinavian village, and so on. It’s a little bit like having the Epcot Center dropped down on the edge of town, but with no ticket entrance and closing time.

In a 2013 interview about her book, Bosker opined on what drives this mimicry;  

“China, at least traditionally, has viewed copying with far greater nuance and tolerance than we have in the West. This perspective has helped create a copy-friendly climate where knockoff White Houses and Monet-manufacturing centers can flourish. In the United States…copycats are seen as cheats. Yet in China, where there’s a long tradition of replicating everything from architecture and artwork to natural landscapes, copying isn’t viewed with such hostility. Traditionally, people saw there as being many distinct types of copies, each with certain merits and purposes. Being able to copy well could actually be a sign of one’s skill or ability — a good copier would be celebrated as a talent, not a thief, and a well-done replica could be a testament to achievement.”

Sounds like an endorsement for counterfeiters!

China is no stranger to copying, as this example shows. It has been argued that the penchant for copying is culture-based, relating to Confucian culture where knowledge and education were commodities to be “shared”. While there may be some loose connection to Confucian values, much of the current IP rip-offs in China are driven purely by commercial advantage, or greed by another name. In a recent blog, Why is Piracy so Common in China? Confucian Cultural Traditions or Just Plain Commercial Advantage? (A Historical Perspective)I examined this question using the example of Chinese publishing houses in the early 20th century in Shanghai. At that time, Chinese copyright laws were basically non-existent or at least non-operative but the Shanghai publishers did not let any vague concept of Confucian values get in their way when it came to self-policing of copyright infringement. Printing and publishing were regulated by their guild and discipline was enforced on those who reproduced the works of guild members without permission. Of course foreign publishing houses were not admitted to the guild so pirating their works was fair game!

Other examples of copying and free riding are found in the area of trademarks. China is awash in knock-offs from fake watches and luggage to auto parts and medicines. USTR’s annual Special 301 report on foreign IP practices always has a long chapter on Chinese transgressions. The current edition is no exception with the report noting that; “China continues to be the world’s leading source of counterfeit and pirated goods, reflecting its failure to take decisive action to curb the widespread manufacture, domestic sale, and export of counterfeit goods.” This widespread counterfeit problem has shifted from largely outdoor markets (although still a problem) to online markets, actually compounding the problem by expanding the reach of fake goods to consumers outside China.

Apart from counterfeiting, use of confusingly similar trademark names is also a problem. In a well-known case a few years ago, Starbucks successfully sued a Chinese coffee chain that was using a very similar logo and a Chinese translation of the Starbucks name that was confusingly similar. The case was one of the first where a western brand was successful in a Chinese court, but it seems to have been the exception rather than the rule. I once asked a Chinese friend why Chinese companies didn’t just invest in promoting their own brand image (as a few have done), instead of confusing consumers by pretending to be something else. His answer was revealing to me. He said that a company or product copying another through a similar mark was not trying to fool the consumer; rather the message was “our product is just like and just as good as Brand X” (and probably a lot cheaper). This is a classic advertising free-riding technique. In the West however, the tactic is for the new product to compare itself favourably to Brand X, using the reputation of Brand X to attract consumers to the new, competing product.

So are the Chinese a nation and culture of copycats, unable to innovate without copying either illicitly or openly? That characterization seems hard to square with the contribution that China has historically made in the area of inventions, including paper-making, movable type, gunpowder, the compass, silk, umbrellas, iron-smelting, and porcelain. Oh, and I forgot golf.  Aha, you say, but that was all a long time ago. What have they invented lately? Actually, quite a lot. China is far ahead of most western countries in terms of e-commerce and mobile payments and is competitive if not leading in areas such as AI, 5G, biotech and solar energy. While some parts of the Chinese business ecosystem are content to sit back and copy–or in some cases steal–technology, in other areas cutting edge research is putting China at the forefront of technology. 

But back to architectural mimicry and what it proves, or does not prove. Copying of architectural styles is hardly something new. In the 19th century many North American cities adopted various European architectural styles, from neoclassical Greek and Roman (think the US Capitol building and state and provincial legislatures across North America) to French Third Empire to Victorian Gothic. We have transplanted Italian gardens, Chinese classical gardens, Germanic castles and French chateaux in North America. We even have an original London Bridge. And then there is Las Vegas, with its Eiffel Tower, Venice and its canals, and Luxor with the Sphinx and pyramids (the real pyramids and Sphinx are over 500 kilometers from Luxor but, hey, why sweat the details?). So copying famous architectural features is not just a Chinese phenomenon, but the cloning of an entire community to create a “Truman Show”-like environment certainly takes mimicry to a new level.

While copying copyrighted architectural designs could get you in trouble, as I wrote about in a blog posting on alleged architectural design infringement in Toronto (“So You Admire Your Neighbour’s House: Best Not to Copy the Design”), Monsieur Eiffel or his heirs are not going to be suing anyone in China, or Las Vegas either for that matter. He passed away in 1923 and all designs and reproductions of his famous tower entered the public domain in 1993, seventy years after his death in accordance with EU copyright law. Thus it is perfectly legal to photograph, copy and sell reproductions of the Eiffel Tower. As an aside, I would note that in a quirk of copyright law, it is a potential copyright infringement to take photos of the tower at night since the night-time light show was added only in 1985 and still falls under copyright protection. As explained in this article, “it’s illegal to share, sell, or publish photos and videos of the night-lit Eiffel Tower without prior permission from the Société d’Exploitation de la Tour Eiffel.” That said, owing to the practicality of enforcement, no case of infringement of this right has ever ended up in court, but if a commercial publisher were to infringe the Societé’s copyright, I can’t predict what would happen.

Returning to the original question, does China have a copycat culture, or at least more of a copycat culture than in the West, the answer depends on your perspective. There is lots of copying in China, some legal like “Thames Town” and some infringing. There is also a lot of innovation and domestic R&D, and a historical tradition of invention to build on. The West does not have completely clean hands either when it comes to copying. The case of the copyright wars of the 19th century, where US publishers routinely “pirated” and reprinted without authorization British writers is often cited as an example of how attitudes to copying evolved in the West, and will change in China. In another recent blog, I examined this historical question. US, British (and Canadian) publishers pirated each other on a regular basis, but at the time this was all perfectly legal as copyright protection extended only to works published domestically. So technically it wasn’t piracy.

Respect for intellectual property (IP) in all its dimensions—patents, copyright, trade secrets, designs, trademarks—is a foundation stone of innovation and creativity. However, within the framework of IP there is plenty of scope to take inspiration from the work of others without infringing, although staying onside is not always clear-cut. This is what keeps IP lawyers and courts in business, including in China. China’s IP laws and practices are changing given the growth of more domestically-produced IP in recent years, but copying will undoubtedly continue, driven in some cases by short-cutting and achieving unfair commercial advantage but in others by admiration for “something different” with a western allure.

I hear properties in “Thames Town” are still available if anyone is interested.

© Hugh Stephens 2020. All Rights Reserved

During a time of pandemic, there is more need than ever to nurture our creative industries.

Source: Modified from http://www.shutterstock.com

Last week I wrote about the challenges facing artists and cultural industries world-wide as a result of the global COVID pandemic. The closure of many venues, from museums to theatres to concert halls, has had a devastating effect–not only on artistic incomes but by stifling creativity and forcing people out of the creative industries. Some governments have offered interim relief through various income support programs, but these are stop-gap measures at best. For some fields of artistic endeavour, the impact will be long-lasting.

While the pandemic has posed many new challenges, flaws in the copyright system that is supposed to protect creators has accentuated the artistic sector’s difficulties. In fact COVID-19 has been used as the pretext to mount assaults on the copyright framework by using the pandemic as an excuse to advance anti-copyright agendas, such as the Internet Archive’s (IA) so-called Emergency Open Library in the US. The IA unilaterally decided that it would abandon the “one copy-one user” principle for lending digitized works in its holdings and make multiple unlicensed copies of digitized works (that were still under copyright) openly available to all comers. After all, there was a pandemic on, so the normal rules don’t apply. Right? Wrong. Publishers were not amused, sued, and the IA pulled back—but only under duress. As I noted in a blog back in the early stages of the pandemic;

“Copyright is the canary in the coal mine when it comes to attempts by special interests to use the COVID pandemic to throw the accepted rules out the window in pursuit of other agendas that have nothing to do with fighting this global crisis.”

While some have used the pandemic as a smokescreen to attack the principles of copyright, in other instances the existing rules, or new interpretations of the rules, have made a bad situation worse. In the Internet Archive case, authors agreed that many people were suffering under lockdowns and accepted that it was harder for students and other to gain access to materials given the closures of libraries (the ostensible reason given by IA for launching its open lending practices). But it wasn’t just students and the public that were hurting. Authors themselves were also suffering. Authors get paid royalties when books are sold through bookstores (bricks and mortar or online) or licensed through libraries. Unlimited, unrestricted circulation of unlicensed copies (even the copies themselves were controversial because rather than being licensed e-books, they were scanned copies of physical books) was just another form of piracy.

In Canada, an ongoing dispute over whether educational institutions have the right to widely copy printed works without a licence under a relatively new “education” fair dealing exception is now going to the Supreme Court of Canada (York U v Access Copyright) for a determinative decision, unless Parliament clarifies the law before a decision is rendered. The hardships imposed by restricted opportunities to market books as a result of COVID-19 are magnified by this major hole in copyright protection. Even the “mandatory licensing” system overseen by the Copyright Board of Canada to enable copyright collectives to manage licensing on behalf of their members has been stood on its head by the Courts, another part of the York U v Access Copyright case that the Supreme Court has agreed to hear. In another creative field, musicians have been forced to compensate for the loss of revenue due to streaming piracy and low payment for licensing of streaming music by staying on tour, but tours are now cancelled for the foreseeable future as a result of the coronavirus.

There is no doubt that this is a very challenging time for creators and the copyright industries. Last month I penned an op-ed on this topic, published by the Globe and Mail. It argued that now is the time to get copyright “right”, given the additional challenges facing creators as a result of COVID.  This is all the more important given the need to maintain and sustain a vibrant cultural sector in order to help us all get through this pandemic with our sanity intact.

For those of you who don’t read the Globe and Mail, that op-ed is repeated below.

Canada’s copyright laws are limiting opportunities for creative industries to recover income

Globe and Mail, October 13, 2020

Hugh Stephens

Getting copyright “right” is important for Canada’s creative sector but also for the cultural and economic well-being of Canadians, especially during this time of COVID-19.

Like so many other sectors of our economy, our creative industries – authors, musicians, playwrights, actors, directors – were hit hard by the pandemic. Unfortunately, Canada’s current copyright regime has deepened that blow – limiting opportunities they may have had to recover any lost income.

For example, royalties to Canadian writers, visual artists and publishers for the use of published materials have fallen precipitously since changes to the Copyright Act were enacted back in 2012. Those changes included adding education as a “fair-dealing exception”: Fair dealing is the right of a user to reproduce copyrighted materials without payment or permission under specified circumstances and limits.

The addition of education as a fair-dealing purpose was so vaguely worded it has allowed most educational institutions at primary, secondary and postsecondary levels to cease payment to the collective societies that represent creators. Ultimately, where once educational institutions paid to copy sections from books, newspapers and other published materials for students, most now help themselves for free, depriving Canadian creators and publishers of countless millions in royalties.

Musicians also know the feeling of seeing their work taken for free or undervalued. Ever since the shift from analog to digital media, they have dealt with the “value gap” – where the platforms that house digital content reap the financial rewards with just a trickle left over for those who actually provide the content that make these platforms viable businesses. When live performances, often the only way musicians can earn a fair return these days, were stopped, the often-meagre funds realized from digital streaming were all that remained.

And if all this wasn’t enough, a most unwelcome surprise arrived – with a ruling from the Federal Court of Appeal. It escaped most people’s notice, but for the creative industries, it highlighted just how broken copyright in Canada actually is. The court ruled that tariffs approved by the Copyright Board are not “mandatory” for those who use unlicensed content, even though that has been the practice for the past several decades. Until now, the practice has been that if the board approves a tariff, it applies to all users of the content whether or not they are willing to enter licensing arrangements with the collective. The effect of this ruling undermines the fundamentals of copyright collectives in Canada that license content on behalf of their members.

As the ground was shifting under creators because of the pandemic, this ruling leaves collectives virtually powerless to ensure a fair return for use of creators’ works. If left unchallenged, the ruling will be a crippling body blow to writers, visual artists, publishers, musicians, songwriters and anyone else who makes a living creating. Parliament needs to clarify what a “mandatory tariff” means.

Canada’s creators and creative industries have suffered a double blow. COVID-19 has shut down many of the channels by which they reach their audience and earn a living. Canada’s broken copyright system has made the situation that much worse. As the pandemic has exposed a number of holes in our social fabric that need fixing, our copyright system needs fixing too.

© Hugh Stephens, 202.  All Rights Reserved.

COVID and Culture: What’s Around the Corner?

Source: http://www.pixabay.com

I have COVID fatigue. Perhaps you do too. In the interests of self-preservation, plus concern for others, in the spring I went into a period of deep hibernation, not that there was much choice as most venues—restaurants, galleries, libraries, cinemas, museums, even parks—were closed. Then we started to “flatten the curve” (at least in my neck of the woods) and a gradual re-opening occurred—until the “second wave” arrived that is. Libraries and museums cautiously and partially reopened (with a limit of just 6 people at a time in all our local library branches). Parks reopened, outdoor restaurant patios sprang up and spread into adjacent streets that suddenly became pedestrian precincts, and even cinemas reopened with limited seating. But the local symphony hasn’t been able to perform, live theatre productions for the coming winter season have been cancelled, book launches are virtual only, and just about the only live music one hears comes from the occasional busker and street musician. The cautious re-opening is fragile, and it could be reversed at any time. It’s better than being in full lockdown, but it’s not normal. Perhaps it is the “new normal”, but it’s hard to adjust to. Probably like you, I am frustrated and antsy.

But if as consumers of culture we feel a bit frustrated, think of the impact on artists and cultural industries of all stripes. The impact is both economic and “spiritual”. COVID not only affects their livelihoods, it threatens to stifle creativity and inspiration, although the degree of impact depends on the genre. Artists can still create, musicians perform and compose, and authors write, but without outlets for their work, the creative spirit is dampened (in addition to the problem of paying the bills). There is still the online world of course, and while it provides an alternative platform which works better for some forms of creativity than others, it is not a substitute for the human interaction that participation in a live cultural event brings to both audiences and performers, consumers and artists.

And let’s not diminish the economic impact. This is significant. A recent study produced by Brookings, “Lost art: Measuring COVID-19’s devastating impact on America’s creative economy”, estimated the loss to the US economy for just the four month period of April through July to be 2.7 million jobs and $150 billion in lost goods and services for creative industries. The hardest hit subsector was fine and performing arts, losing 1.4 million jobs (50% of the jobs in the sector) and $42 billion in sales as concerts, theatres and galleries suspended operations. Design and advertising lost 13% of jobs, publishing 9%, film and TV 7% with smaller losses among other categories such as architecture and fashion. Among specific occupations in the creative industries, the hardest hit were photographers, who saw a decline in jobs of almost 17% with a 21% decline in income, but many other occupations were also hit—musicians, actors, writers, artists, and so on. And this is in a diversified and sophisticated economy where digital penetration is high. Can you imagine the impact in countries less well endowed?

In fact, UNESCO (United Nations Educational, Scientific and Cultural Organization) has surveyed the impact across many societies and economies. Quite apart from the loss of income support, COVID has had devastating effects on the cultural sector worldwide. UNESCO reports on empty cultural sites, closed institutions, suspension of cultural practices and unanticipated negative by-products such as looting of cultural sites as a result of inadequate security, lack of ongoing conservation work owing to loss of revenue, loss of educational materials, and loss of cultural diversity through suspension of cultural social practices. The impact has disproportionately hit poor countries and vulnerable groups the hardest, where out-of-work artists have no social safety net to fall back on. It is worth remembering that 46 % of the global population is offline. “Working from home” is often not a viable option.

UNESCO estimates that many museums, up to 13%, may never re-open, especially those largely dependent on admission revenues for financial support. In a survey, one third of independent galleries and art dealers indicated that they do not expect to survive. Some art institutions may have to close permanently. Overall, there could be a loss of 10% of GDP in some countries because of the impact of COVID on cultural industries, especially where culture is a key driver of tourism.

Is there any glimmer of hope in this bleak landscape? If you subscribe to the theory that out of adversity comes strength, then possibly some good will come out of the adaptations that have been and will be necessary to live with COVID.

First, I think COVID has shown us just how important culture, creative industries and institutions are to our daily lives, not just in economic terms but to our ability to exist as sentient beings. Think of the enjoyment and release that music provides, the escape of a good novel or film, the appreciation of the ingenuity of creators in the visual and plastic arts—in short, the importance of culture to spiritual recovery. For those of fortunate enough to live in a digital world, there has been an opening of new possibilities for access to content. But this can also be a double-edged sword for local creators who may suddenly find themselves in competition with artists a continent away. To cite a local example, my small but proficient regional orchestra, the Victoria Symphony, has not been able to present live performances. The alternative is to try to get the musicians together—in smaller groups than the full orchestra—to perform online. That draws people back in, and the next step will be to try to convert this online interest into revenue generation. But getting people to pay for online content is a challenge especially in a world of unlimited alternatives. If I am going to watch and listen to an online performance of, say, Mozart, why would I choose a local orchestra over the finest in the world, also available online?

Museums and galleries face the same challenge and have gone digital, mounting virtual exhibits and tours, similar to what classical music organizations are trying to do. That can work well where the offering is unique (rarely is this the case with classical music), but virtual exhibitions need to offer something special that cannot be obtained elsewhere. And, while the online environment offers consumers the ability to see or hear content, it does not offer the context of viewing or listening to it live, in an interesting museum building or concert hall, sharing the experience with others. We all know what the Mona Lisa looks like, but it’s the real thing that we want to see. That is what COVID restrictions are denying us.

So what is the answer? To date many of the responses from governments have been to provide various types of financial support to the sector, as I noted in a blog I posted early in the pandemic (here). The maintenance of subsidies and the provision of some income support helped stave off immediate collapse and enabled many organizations and creators to manage—barely—for the time being. Much of this support is of an interim nature however, providing help to get through the next few months while we wait to see what happens with COVID. This will be great if in the end we come out this collective experience with a vaccine, or a cure, and everything goes back to the status quo ante. Personally, I’m not betting on it. I have a feeling that we’re in this for the long-haul and that COVID—or the next pandemic—is going to require us to do some things differently on a more permanent basis. One of these will be the ways in which we interact with culture and consume content. But first we have to figure out how to sustain the sector economically.

There are various measures that can be taken to address the financial challenge that creative industries and professions are facing, although some painful adjustments are, I think, inevitable. With regard to the US, the Brookings study comments that;

“Small, stop-gap measures will not undo the damage; a substantial and sustained national creative-economy recovery strategy is required. This strategy must be bottom-up, but supported across the board and led by local public-private partnerships between municipal governments, arts and cultural organizations, economic development and community groups, philanthropy, and the private sector, with support from federal and state levels of government, national philanthropy, and large corporations.”

Brookings also notes that;

“…technical support is also needed (especially for smaller organizations) on how to conform with health and safety requirements as well as how to adapt their business models in light of a protracted period of restrictions on live performances”.

Going local might be the only alternative, just as domestic tourism has been encouraged to offset declines in international travel.

With reduced demand for large cultural events as a result of social distancing, there is an opportunity for communities to shift to locally sourced culture. Communities can develop strategies to hire local creatives and create online portals and platforms to allow residents and businesses to hire local artists, musicians, and performers for smaller-scale, local events.”

Locally, I have recently been to a performance of our ballet company, with just 40 people in the audience. The hall was set up cabaret style, limited to a “social bubble” of four at a table, and no table-hopping. Hand sanitizers decorated the cabaret tables along with a small bouquet. People were escorted into and out of the hall, with no mingling. The tickets included a generous donation, with a tax receipt, to the company. It is one way to survive for the time being and give young performers a chance.

While performing arts faces particular challenges, the film industry, music and publishing have been adapting to change brought on by digital technology for a number of years. COVID will accentuate those changes; for film production this will mean collapsing cinematic and streaming windows as the bricks and mortar cinema model faces new challenges; for music it will mean fewer live shows (an important revenue earner) and more reliance on thin online revenues; for publishing it will mean continuing to find ways to preserve the value proposition of physical publications. Greater reliance on digital platforms means greater susceptibility to digital piracy, and even greater efforts will have to be made to equip rights-holders with the means to combat piracy. 

Some elements of the cultural landscape will be changed permanently. There will likely be a shake-out when it comes to theatre, dance, classical music groups and artists, with the strongest surviving and others going out of existence.  Some creators will leave their professions to earn a living elsewhere. We will all be the poorer for this winnowing, although perhaps we will better appreciate the cultural entities and individual creators who survive.

I have no crystal ball, so as we now struggle through the second wave of COVID it is hard to know how our world will be changed. It is unlikely that we will ever go back to way things were pre-pandemic, but what the “new normal” will look like is still only emerging. In the meantime, let’s try to hold on to what we have, support and encourage our creative communities as best we can, and give thanks for the intangible yet essential nutrition we get from our creative industries and cultural communities.

© Hugh Stephens, 2020. All Rights Reserved.