Author: hughstephensblog

As year-end approaches, I like to look back at the main themes that emerged over the past 12 months affecting copyright, creators and the content industries, drawing from my blog posts throughout the year. Some of the same issues I highlighted last year, such as payment to news content providers by online news aggregators (Google) and social media platforms (Facebook) for use of news content, and the education fair dealing exception that has decimated the educational publishing market in Canada, are still very current—and unresolved. The biggest new issue that emerged in 2022 is generative AI, presenting considerable challenges from both a copyright and ethical perspective while offering new applications to assist in creative writing, composing music and producing art. Authors and publishers also continued to wrestle with the issue of digital licensing and the end-run on copyright mounted by proponents of “Controlled Digital Lending”. Finally, progress was made on one particular copyright-related issue, implementation of copyright term extension in Canada, bringing the duration of copyright protection into line with that of the US, EU, UK and Australia, among others, along with a commitment by New Zealand to do so in future.

Generative AI and Copyright

The big story of 2022 was the emergence of generative AI, especially AI generated art. It was only in July of this year that OpenAI’s DALL-E text to image generator was made available to the general public in a beta version. Then on August 22, Stability AI’s tool, Stable Diffusion, was released to the public, at no cost, with no barriers and, significantly, no content controls. I was a little slow off the mark (after all, it was late summer, and I was at the cottage) but I got around to writing about this phenomenon in October (“AI and Computer-Generated Art: Its Impact on Artists and Copyright”). This technology raises several questions from a copyright perspective, not to mention a range of ethical issues arising from the potential for abuse from misuse of AI generated images.

The copyright related concerns come from both the inputs and the outputs of the technology. On the input side, the models are based on the ingestion of literally millions of examples scraped from the internet by internet-indexing projects such as Laion, a research-based “non-profit” based in Germany. Many of the ingested images are works protected by copyright–designs, paintings, photographs, just about anything available online–whether watermarked and protected or not and all without permission from the rights-holder. While Laion claims to be a non-profit motivated solely by the “democratization” of machine learning, the fact that it sells its data to outfits like Stability AI (a process often referred to as “data laundering”) has raised questions as to its degree of altruism.

Whether this form of ingestion is infringing from a copyright perspective remains to be seen. Its proponents in the US claim it falls within fair use parameters, even though the copying is unlicensed while licensed databases exist, and despite the fact that in some cases the results of the AI generated product act as substitutes (or have the potential to act as substitutes) for the original work, in effect displacing the original. In other countries, the legality of this kind of text and data mining (TDM) is questionable. The UK is currently floating a process to open up TDM and create a broad exception allowing its use for any purpose, while denying rights-holders the ability to opt out or license their works. I wrote about this dangerous proposal (“Britain’s Proposed Approach to Text and Data Mining (TDM) for AI: How Not to do It (A Lesson for Canada and Others)”, highlighting it as a negative example for Canada and others countries contemplating legislating a TDM exemption. It has been vigorously opposed by British cultural entities and associations. While arguments can be made for a limited TDM exception for non-commercial research purposes where licensed alternatives do not exist, the kind of TDM exception proposed by Britain would throw out the baby with the bathwater, sacrificing the interests of rights-holders on the supposed altar of AI “innovation”. Just about the only country that has implemented this kind of broad TDM exception is Singapore—and it is probably fair to say that Singapore has a lot less invested in its cultural industries than the UK, or Canada, or many others. In the face of widespread pushback, the UK government is reportedly reviewing the proposal and may go back to the drawing board. This has not stopped some proponents of wider exceptions and weaker copyright protection from advocating for a new international treaty that would allow for broad TDM exceptions. This will be an issue to follow in 2023.

Quite apart from copyright questions relating to the inputs used by the AI application, there are all sorts of questions related to the outputs, i.e. the content produced by the technology. Are the AI-generated works subject to copyright protection if they are a result of upstream infringement? Are they sufficiently original to qualify? What if there is no meaningful human intervention in their creation? All these issues remain to be worked out.

Finally, quite apart from copyright considerations, there can be serious ethical issues related to AI generated content. Unless carefully moderated, the technology can and is being used by some to create abusive images, some sexual, some violent, or to misappropriate a person’s image or publicity right. There are already many forms of online abuse, and generative AI adds to the possibilities. As I wrote last week, “AI Generated Art: Another “Technical Breakthrough” Calling Out for Responsible Management and Regulatory Oversight”, if industry won’t self-regulate (and it won’t), then governments will have to do it. (“Grappling with Online Safety Legislation: How to Hold the Platforms Accountable”)

E-Book Licensing

Another challenge faced by rights-holders in 2022, in this case authors and publishers, was the challenge to e-book licensing mounted in several US states, along with the issue of “Controlled Digital Lending”. In February I wrote about a new law passed by the Maryland state legislature imposing a compulsory license requiring publishers to license e-books to public libraries at a price to be determined by the government.  (“Books, e-Books, Authors, Publishers and Libraries: A Complex Relationship”). Apart from being a violation of the US Constitution, which reserves copyright legislation to the US Congress, the Maryland law was an egregious seizure of property. The Association of American Publishers sought an injunction to halt implementation of the legislation, relief that was ultimately granted. That has not put the issue to bed, however. Copyright opponents, sadly including some in the library sector, are trying to extend the “first sale doctrine” (referred to as “exhaustion” in Canada) to digital copies of works.

Under a first sale doctrine, once a work is purchased it can be used in whatever way the owner wishes without further reference to the rights holder (except for copying). The best example is a hard copy book which can be resold or loaned without reference to the rights-holder, although it cannot be reproduced except in accordance with fair use or fair dealing limitations or under licence. Licensed digital editions of works are different from works that are sold. They are licensed for a specific time or for a specified use under certain conditions. They are not “sold”, and the licensor (publisher) retains certain rights as to the use of the licensed work. In the case of libraries, most publishers make available under licence a predetermined number of digital copies that may be loaned for a set number of times. From a publishers’ perspective, there are good reasons for these limitations; for example, the fact that a digital copy never wears out and thus never has to be replaced, as well as the elimination of the “friction” associated with physical borrowing. This “friction”, the nuisance elements associated with having to collect and return a book, is one of the factors that lead many people to purchase rather than to borrow. An e-book is a different product from a physical book, with different market characteristics. The producer of that work, the publisher, is entitled to determine the terms on which it is made available to the public. And this is where “Controlled Digital Lending” (CDL) enters the picture.

Controlled Digital Lending

CDL is an unproven theory interpreting copyright in such a way that libraries are free to make and lend a digital copy of a book as long as they have legally purchased and retain a physical copy of the same work. It is very popular in the library community because it allows these institutions to bypass the e-book licensing process. On its surface, the theory can seem plausible (only one digital copy can be in circulation for each physical copy, which is retained in storage, and a digital copy has to be “returned” before it can be reloaned.) However, an “inconvenient fact” is that for CDL to take place, an unauthorized digital copy of a work has to be made, a copy which can then compete with the authorized, licensed, digital version of the work in the form of an e-book. Although digitization of works is authorized for libraries, museums and archives under copyright laws in most countries for specific purposes, such as historical preservation, obsolescence of technology, etc, it is not okay to simply do an end run on a licensed product. In fact, in Canada the copyright exception for preservation is explicitly ruled out if an appropriate copy is commercially available. A lot has been written by academics to justify the CDL theory, but it has never been tested at law. This is about to change in 2023 with Hachette v Internet Archive (IA).

Hachette is the lead plaintiff along with several other publishing houses, supported by the American Association of Publishers, in a case against the Internet Archive (IA) regarding Controlled Digital Lending. The origin of the case lies with the decision of the Internet Archive to lift all CDL controls on its online Open Library during the initial phases of the COVID pandemic in early 2020 in order to create a so-called “National Emergency Library”. The Archive, which has as its core business the digitization of documents and books as well as archiving websites and television programs, brands itself as a “non-profit library”, although it is not really a library at all. In effect, in 2020 the IA unilaterally made available thousands of copyrighted works without authorization, discarding even the fig-leaf of Controlled Digital Lending. Not surprisingly the publishers sued for infringement. The IA then wound up its Emergency Library, but the suit has proceeded and is now before the Southern District Court of New York. The Internet Archive has established a branch in Canada. A number of Canadian university research libraries subscribe to the theory of CDL and have made their collections available to the IA for digitization. It will be interesting to see how this issue plays out in 2023 in both the US and Canada.

Copyright in Canada: Lots of Unfinished Business

On the copyright and content front in Canada, there is lots of unfinished business. In my first blog post of this year (“What Lies Ahead for Canada in 2022 from a Copyright and Content Perspective?”)  I outlined the considerable “to do” list; Copyright Act amendments; Broadcasting Act amendments to incorporate streaming content (the Online Streaming Act); payment for unlicensed use of news content by internet platforms (the Online News Act) and digital safety legislation (the Online Harms Act). Of this list, only one subset was actually achieved, an amendment to the Copyright Act to extend Canada’s term of copyright protection. No other action has been taken to date to update the Copyright Act despite a commitment in the 2022 budget speech to do so. (“Copyright References in the Budget: Good Intentions Are Welcome but Early Action is Needed”). As a result of this lack of action, a coalition of 25 author, publisher and copyright groups held a “Day of Action” in late November to urge the government to follow through on its commitment to “ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders”. (“The “I Value Canadian Stories” Campaign: Time to Get Serious About Copyright Reform”).

As for the Online Streaming Act (Bill C-11), Online News Act (Bill C-18) and the Online Harms legislation (not yet introduced), they are still works in progress. The public discussion paper for the Harms legislation attracted plenty of negative commentary, leaving the government to go back to the drawing board to take account of the input. It should be introduced in 2023 while C-11 and C-18 should complete the Parliamentary process next year. (C-11/Online Streaming has cleared the House of Commons and is currently being reviewed in the Senate, with the Committee process now complete, while C-18/Online News has completed Committee review in the House and passed third reading just prior to the Christmas break. It will now be reviewed in Committee by the Senate). All have controversial aspects and will be watched closely by copyright stakeholders in 2023. It promises to be an interesting year on a number of fronts–AI generated content, Controlled Digital Lending, and copyright updating and related legislation in Canada. Stay tuned.

© Hugh Stephens, 2022. All Rights Reserved. 

A quarter of a century ago, the internet was going to bring us wonderful things. The hubris of Silicon Valley was incarnated in the cyberlibertarian rantings of so-called internet guru John Perry Barlow and his “Declaration of the Independence of Cyberspace”. The hi-tech whiz kids actually began to believe in their own infallibility and in the innate goodness and benefits of cyberspace. They had drunk so much of the Kool Aid their eyes were orange. Any reasonable restraint placed on the internet was deemed to be a stifling of innovation and a violation of free speech. The internet was going to be liberating, democratizing, enhance creativity and our quality of life, spawn new industries and on and on. The constraints of the offline world, the laws and regulations that help balance society and keep excesses in check, were argued to be inappropriate for this new world.

Section 230 of the Communications Decency Act of 1996 was passed at the time, with lawmakers unaware how loosely it would be interpreted by the courts. This is the much-misused piece of legislation that internet platforms in the US have hidden behind to avoid any civil legal responsibility for malicious, defamatory and otherwise illegal content on their platforms, whether they are aware of that content, promote that content or refuse to take any action to delete or moderate that content. Section 230 has been widely recognized to be in need of amendment, despite the supposedly transformative role that professor and journalist Jeff Kossoff gives it in his recent book, “The Twenty-Six Words That Created the Internet”. Those 26 words (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”)–which constitute the formula that has immunized the platforms from civil liability for harmful material on their platforms–has been largely responsible for some of the most negative aspects of the internet.

Some of the internet hype back in the 1990s was true, but a lot was not. There is no question that the internet has brought about a huge transformation in the way we communicate, disseminate information, buy and sell, and even think. Unfortunately, as noted above, it has come with a lot of collateral damage. When this occurs, it is the role of legislators and regulators to mitigate the harm, to establish guardrails, to amplify the good while minimizing the bad, in short, to protect society, because we have learned that the industry cannot be trusted to do so on its own volition. We are now on the cusp of that situation when it comes to generative AI, including AI generated art.

Several commercial platforms that convert text prompts entered by users into images that resemble art or photography are becoming more widely available to the general public, as I discussed in this earlier blog on AI-generated art. This technology poses two major issues from a copyright perspective. First, to generate their images, the AI machines ingest without permission a vast number of images scraped from the internet, many of them protected by copyright. Without the raw material produced by human artists, the algorithms would not be able to generate anything that resembles human-produced art. Yet at least some of this AI-generated output is likely to compete in the market with the works of artists who unwittingly fed the AI machine. The unauthorized scooping of copyrighted content not only destroys any potential market for licensing content for data mining purposes, it also threatens to destroy the livelihood of many current artists, designers and illustrators. Whether this is legal is still to be determined. In the US there has been no clear fair use ruling that would permit this vacuuming up of copyrighted content. In other countries, text and data mining exceptions either do not exist in copyright law (as in Canada) or are restricted to non-commercial research purposes (as in the EU). As AI develops, the rights of creators must be kept in mind and protected.

A second copyright concern, at the moment largely theoretical but soon no doubt to be real, is the question of who exercises copyright over AI-generated works. It is accepted in almost all jurisdictions (the UK is an exception) that for a work to be granted copyright protection, it must be fully or partly created by a human, along with the other normal attributes required of a copyrighted work (originality, creativity and fixed in a material form). Even if AI assists in the creation of the work, there must be a “human hand” in control. In fact, the US Copyright Office recently questioned the copyright registration of a graphic novel, requiring the applicant to demonstrate that there was “substantial human involvement” in the creation of the work, after artist Kris Kashtanova went public stating that she had obtained a copyright registration on her fully AI generated graphic novel, thus creating a precedent. (She hadn’t). The USCO subsequently stated it would cancel her copyright and she is now appealing, claiming that she was the artist after all, albeit “assisted” by AI.

There is yet another copyright angle to creation of art through AI that has been explored by copyright blogger David Newhoff. He has examined the question of whether the crafting of “prompts” to generate art through AI could be considered sufficiently original and creative to qualify for authorship, and thus copyright protection. He is prepared to consider that a carefully constructed prompt might qualify as an original literary work, much as a line of code in a software program might qualify, but not the resulting work because that is the work of the algorithm, not the person creating the prompts. The Infolaw blog in the UK has also carefully considered this question. There are no straightforward answers.

While these copyright questions remain to be resolved, equally serious generative AI issues arise from the way in which the final work is used and the nature of the content it incorporates. Coming back to my original premise that the internet cannot be left on autopilot and expected automatically to become a force for social good, the same is true for generative AI, especially AI generated art. While generative AI has the potential to save time and money for business and creators and even improve content, there is also plenty of potential for abuse. This is surely going to happen unless the enablers of this technology establish some rules. You can easily imagine how the technology could be misused, producing everything from misappropriated personal images doing undesirable things to manipulated images putting people, including prominent people, in situations and places where they have never been, not to mention copyright infringement and a host of other abuses. There are already reports of videos of ISIS beheadings and non-consensual porn powering AI generated art. And the sex industry is no less present in the world of AI-generated content than it is in other facets of the internet as reported by TechCrunch, which profiled a new, AI enabled site devoted exclusively to porn, Unstable Diffusion.

Because of the potential for abuse, platforms such as OpenAI and Midjourney have built in guardrails, various filters and controls that will constrain (but probably not entirely prevent) misuse of generative technology. Google, which is developing its own platform, Imagen, is holding back public release for now until it can figure out how to ensure appropriate use. However, Stability AI’s platform, Stable Diffusion, which is open source and free to the public, launched with no such controls. According to the New York Times, Emad Mostaque, the founder and chief executive of Stability.AI, has pushed back on the idea of content restrictions, arguing that “radical freedom” is necessary to achieve his vision of a democratized AI untethered from corporate influence. Mostaque is quoted as saying, “We trust people, and we trust the community”. This is a disaster waiting to happen.

Does Mostaque’s attitude stem from naïvité, or just irresponsibility? I would call it both, plus arrogance and maybe some crass commercial advantage. This laissez-faire, “let it all hang out” attitude will inevitably result in “the community” (or fringe parts of it) abusing the technology, but it will also give Stability AI some additional market share. Even though some platforms have tried to set guardrails, the nature of the industry is that, in the end, the standard is set by the lowest common denominator. Already OpenAI is modifying some of its early controls as a result of Stability AI’s lack of discipline. The inevitable abuses may result in the hammer of legislation being brought down, despite Mostaque’s ramblings objecting to control by big tech, or governments. Generative AI won’t just stop at still images. Mostaque is already talking about extending it to video, audio and other formats. Music is the next creative industry to face the AI challenge. Given the speed at which this technology is developing and being rolled out, with very few controls and limited screening of content, the law of unintended consequences will be quick to assert itself.

If AI platforms have no responsibility for the content they enable users to create, just as internet platforms enjoy immunity in civil law from the consequences of the content they enable users to distribute, the benefits of the technology could well be outweighed by its negative side-effects. The latest AI-enabled application to cause concern is Lensa, a Stable Diffusion powered tool that takes your selfies, retouches them and produces an art image with a version of you. Teenagers love it. But not only are users giving away their facial data, which could be misused, the images that Lensa generates from the Stable Diffusion database are often overly sexualized or misogynistic.

Despite all the concerns, there were some signs at the end of last month that the “responsibility” message may be starting to seep through, or at least awareness that there could be some legal consequences. In November, Stable Diffusion tweaked its model to remove the ability to mimic specific artists or to generate nude and pornographic content and realistic portrayals of celebrities. Perhaps Mostaque’s unlimited trust in people and “the community” was tempered by a dose of reality? Yet when there was pushback from parts of “the community”, Mostaque responded that because Stable Diffusion is open source, users are free to add these features back at their discretion. It seems he is more concerned with Stable Diffusion’s potential legal exposure than the impact of unrestrained applications of AI.

Some clear ground rules need to be established now, before things get out of control, rather than waiting for the inevitable abuses to occur. If industry won’t do it—and industry won’t because there will always be a new disruptive upstart seeking to gain misguided competitive advantage by ignoring the rules—then governments will have to. Even though the US Congress has been unable to get its act together to reform Section 230, governments around the world are finally waking up to the need to control online abuses. Introduction of online safety legislation is underway in the EU, UK, and Canada. Australia already has such legislation. New Zealand has developed a voluntary code. Abuses from AI generated images will have to be addressed within this framework.

If we have learned any lessons from the cyberlibertarian philosophy of some of the early protagonists of the internet (a philosophy still espoused by some, such as the Electronic Frontier Foundation), it is that the rules, incentives and punishments established by society to guide the behaviour of some for the benefit of all, apply every bit as much to the internet, cyberspace and AI as they do to other aspects of life. If, as Mostaque claims, “people” and “the community” could be trusted to do the right and sensible thing, we would have little need for the apparatus of the state other than to deliver services. Sadly, that is not how life works.  

AI-generated art is on the cutting edge of the next wave of technology-enabled abuse unless action is taken now to place some responsibility on the shoulders of the enablers. If you invent a weapon, load it, hand it to an anonymous user and show them how to fire it, you must take some responsibility for the results. We have seen it happen already with misinformation and abusive content on the internet. Generative AI is the next big challenge. Let’s make sure this time we get it right.

© Hugh Stephens, 2022. All Rights Reserved.

At the end of November, on November 29 to be precise, the “I Value Canadian Stories” coalition launched a “Day of Action”. The objective was to draw the attention of the Trudeau government, in particular the two ministers responsible for the Copyright Act, Innovation, Science and Industry Minister François-Philippe Champagne and Heritage Minister Pablo Rodriguez, to the need to move urgently on promised copyright reform.

The coalition came into being in 2017 and brings together over twenty-five author, publisher and copyright groups from across the country to deliver a key message: the Federal government must restore fair compensation to creators and publishers for the use of their works by the education sector.

This is an issue I have written on multiple times. It goes back more than a decade when the elementary, secondary, and post-secondary education sectors in English Canada began to opt out of licensing content from the collective society representing authors and publishers, the Canadian Copyright Licensing Agency, known as Access Copyright. Instead, they developed their own “fair dealing guidelines”, using as cover the new education fair dealing exception introduced into the Copyright Act in 2012. In effect, the universities declared that the content they had previously licensed from Access Copyright was now free for the taking under the education fair dealing exception. For the most part, they simply stopped acquiring and paying for licences, depriving authors and publishers of substantial revenues, in effect requiring the educational publishing sector to subsidize Departments of Education and institutions of higher learning. In Quebec, most educational institutions continued to pay for licences from Access Copyright’s Quebec counterpart, Copibec, with the exception of Laval University. The result in both cases was litigation. In Quebec, eventually, Laval settled with Copibec. Unfortunately, Access Copyright was not able to achieve the same outcome in its area of jurisdiction, the rest of Canada.

The Access case (against York University) eventually went all the way to the Supreme Court of Canada (SCC) which delivered a damaging decision in July of 2021.  While not accepting York’s claim that its copying practices were fair (although also not ruling that they weren’t), the SCC upheld a decision by the Federal Court of Appeal that had overturned a key aspect of an earlier court ruling that had gone in favour of Access Copyright. The original decision not only found that York’s dealings were unfair, but it required York to pay the interim “mandatory tariff” for copying published materials in Access Copyright’s repertoire.

This “tariff” (royalty payment) had been established by the Copyright Board of Canada, a quasi-judicial administrative agency whose role is “to establish fair and equitable tariffs and licences through timely and fair processes”, including setting tariffs in situations where a collective society and users cannot agree on royalties. The Board’s intervention had been invoked because many post-secondary institutions (including York) had declined to obtain a licence from Access Copyright for reproducing content that the copyright collective represented even though they were reproducing material from the collective’s repertoire. Access Copyright sought to enforce the interim tariff established by the Board against York in the Federal Court, which found that the interim tariff was enforceable. However, York appealed, and the Appeal Court ruled that tariffs set by the Copyright Board are enforceable only against users who willingly agree to be bound by the tariff. This decision, upheld by the SCC, has in effect undermined the principle of collective licensing of published materials in Canada.

If this is all rather complicated and “inside baseball” to most people, suffice to say that as a result of the SCC decision, authors and publishers are now urging the government through Parliament to fix the loophole in copyright law that has led to this outcome. The root of the problem is the ill-considered decision to include “education” as a fair dealing exception when the Copyright Act was updated in 2012. When combined with the SCC’s decision reversing the previously-accepted interpretation of the mandatory tariff regime, we have a perfect storm of bad news for authors and publishers, and for collectives like Access Copyright.

That is the story behind the “I Value Canadian Stories” campaign. Earlier this year, in the 2022 Budget document, the Trudeau government provided some measure of hope that the problem would be fixed, but to date there has been no action. I wrote last week (“It’s Official! Canada Extends its Term of Copyright Protection”) about one of the two copyright references contained in the budget document. That provision announced the fulfillment of Canada’s commitment in the USMCA/CUSMA trade agreement to extend its term of copyright protection by twenty years. An amendment to the Copyright Act to this effect was subsequently incorporated into the Budget Implementation Act, omnibus legislation that bundled a number of unrelated legislative issues, including copyright, into the budget bill for administrative and legislative convenience.  Since this was a very limited and targeted amendment to the Copyright Act which did nothing to redress the problems described above, the budget bill also contained the following wording as reassurance to the copyright community:

“The government is committed to ensuring that the Copyright Act protects all creators and copyright holders. As such, the government will also work to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders, as well as a modern and innovative marketplace that can efficiently serve copyright users.”

That was a useful statement–but since then nothing has happened, and creators and publishers continue to be denied payment when their work is copied in educational institutions outside of Quebec. The one-off amendment to the Act to extend the term of copyright duration has now been done, driven by the deadline built into CUSMA, but of the broader amendments needed to fix the education loophole (as well as to address a number of other copyright-related issues about which there has been Parliamentary review as well as discussion papers circulated for public comment), there has been not a word. In principle, the Copyright Act was due for an update five years after the previous revisions, in other words in 2017. Two years after that, two Parliamentary Committees held hearings to review aspects of the Act, and made a series of recommendations, some of them contradictory. Since then, there have been discussion papers on issues such as artificial intelligence, online intermediaries, text and data mining, orphan works and so on. The pot is starting to bubble, but there are still no signs that the government is ready to introduce legislation.

The ”Day of Action” was undertaken by writers and publishers groups from across Canada. Quebec writers’ and publishers’ associations were particularly active during the “Day of Action”, even though Copibec and Laval reached an accord on licensing in 2018. What explains the continuing interest of Quebec-based authors and publishers? First, they are denied payment of education royalties in the rest of Canada in the same way as Access Copyright’s members are short-changed. Second, they are concerned that Quebec educational institutions could follow the lead of universities in the rest of Canada and stop paying creators and publishers by walking away from licensing agreements. Not being a legal requirement, it could be renounced in future.

Lobbying took place on Parliament Hill on November 29. Blank books were distributed, graphically underlining that this could be the fate of the publishing industry in Canada in future if the royalties issue is not resolved. The decline in revenues to the industry from educational institutions has been staggering, estimated at over $200 million since 2012, with  four educational publishers ceasing operations in either the K-12 or post-secondary sector in Canada, and others shifting out of production of Canadian educational materials for Canadian students.

The campaign featured individual writers with their works, and a letter writing campaign to Minister Champagne. It was a reminder that the creative community expects the government to follow through on its commitment to “ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders”. One way in which this could be done would be to narrow the education fair dealing exception so that it applies only when a work is not commercially available, as per the Recommendation (#18) made by the Heritage Standing Committee in its report “Shifting Paradigms.

The Trudeau government needs to get moving. Although in a minority situation, its “confidence and supply” agreement with the opposition NDP should give it two plus years to update the Act, and redress the injustices introduced a decade ago. If Canada’s educational publishing sector is to survive, if Canadian students are going to be provided with culturally relevant content as part of their learning, and most important, if Canada’s authors and writers are to be dealt with fairly and justly and be provided with the financial means to continue to create Canadian stories, the Copyright Act needs to reflect these priorities.

As the campaign letter to the government stated so succinctly:

“Fix the Copyright Act now. Save the livelihoods of Canadian creators and publishers. And put a stop to great Canadian content disappearing”

© Hugh Stephens 2022. All Rights Reserved.

The announcement itself was a bit of an anticlimax. It was something that had been in the pipeline for months but until the publication of the Order-in-Council dated November 17 (released on November 23), it was still hanging as a piece of unfinished business. The wording was short, if a bit convoluted:

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry and the Minister of Canadian Heritage, under section 281 of the Budget Implementation Act, 2022, No. 1, chapter 10 of the Statutes of Canada, 2022, fixes December 30, 2022 as the day on which Division 16 of Part 5 of that Act comes into force.

Here is my translation of the legislative-ese;

“The Canadian government has finally pulled the trigger on the implementation of legislation that amended the Copyright Act to extend the term of copyright protection in Canada from “life of the author plus 50 years” to “life of the author plus 70 years”, with effect from December 30, 2022.”

This amendment had been enacted as one of the numerous unrelated pieces of legislation bundled into the omnibus 2022 Budget Implementation Act introduced on April 7. It was, as I wrote at the time, “The Copyright Needle in the Budget Haystack”. That Act finally passed Parliament and was given Royal Assent in June of this year but the provisions of the legislation relating to copyright were not officially “proclaimed” (put into force) until the release of the November Order-in-Council, bringing the amendment into force on December 30, 2022.

The change was made as a result of  a commitment made by Canada to the US and Mexico in the updated NAFTA agreement, the USMCA (referred to as the CUSMA in Canada). The text of the CUSMA required that Canada bring the extended term into effect no later than 2.5 years after the date of implementation of the new NAFTA Agreement, which was July 1, 2020. In other words, the extension of Canada’s copyright term of protection had to be brought into effect before the end of 2022.

Initially, it was not clear what form the provision would take. Copyright opponents lobbied to have an obstacle placed in the way of a straightforward extension by adding an “opt-in” provision in the form of a registration requirement imposed on the rights-holder in a narrow window before the original term of “life plus 50” expired. Failure to pro-actively assert the right to extension would result in copyright protection lapsing under the current “life plus 50” rules. As I pointed out in an earlier blog posting (“The Anti-Copyright Hyperbole Fails to Sway the Canadian Government”), this was a really bad idea. No other country has ever done this when implementing copyright extension. To do so would probably be a violation of Canada’s commitments under the Berne Copyright Convention, would impose an unnecessary and costly burden on rights-holders, and would create an unnecessary bureaucracy to implement and maintain a registration regime. Not only would the registration trip-wire impact rights-holders, it would also lead to confusion among users because of uncertainty as to which works still fell under copyright. Finally, it could possibly have led to a trade challenge from the US which could have argued that Canada had reneged on a CUSMA commitment.

Canada is always meticulous in seeking to ensure that the US lives up to the letter and spirit of its treaty commitments. The proposed US tax credit for electric vehicles that originally was to have been limited only to US made vehicles is a recent case in point. If Canada wants to ensure the US implements CUSMA in good faith, it needs to do so itself. In short, the additional registration requirement was not a realistic option. Fortunately, and sensibly, the Canadian government refused to countenance it.

However, that has not stopped copyright opponents from dredging up this tired old proposal, and from repeating the canard that copyright extension will lock up content for another two decades by delaying certain works from falling into the public domain. They will in all likelihood also repeat the false narrative about a longer term of copyright costing Canada hundreds of millions of dollars.

Canada will now join the more than 80 countries that have implemented an extension of copyright duration. This will bring Canada’s regime into alignment with most of its major trading partners including the US, the twenty-seven members of the EU, the UK, Japan, Korea, and Australia. New Zealand has also agreed to join the new international consensus as a result of its trade agreement with the UK. Canada will now be part of this club with a harmonized term of protection.

An extended term has several advantages for rights-holders, both in Canada and abroad. First, Canadian rights-holders (authors, publishers, film-makers, songwriters, musicians and so on) will benefit from the longer term of protection not only in Canada but also in the twenty-seven member states of the EU and in the UK. This is because those countries apply the extended term (an additional twenty years beyond the Berne Convention minimum of “life plus 50”) on the basis of reciprocity only. Canadian rights-holders will thus benefit from the full “life plus 70” term of protection for their works in the EU once Canada aligns its term of protection with the EU standard. The situation with the US is a bit different. Canadian rights holders already enjoy the benefit of the longer term south of the border, but US rights-holders are denied equal treatment in Canada. With Canada’s amended term, US rights-holders will get the benefit of the extra period of protection in Canada, and that alignment will bring about equality of treatment between US and Canadian rights-holders in both countries. There will also be a general benefit from harmonization of terms, which is one of the reasons the EU originally decided to go with the revised “life plus 70” standard.  A number of EU member states either had terms that were shorter than “life plus 70” or longer, leading to a patchwork quilt of protection regimes and legal confusion. Harmonization with the EU was also the primary reason the US adopted a longer term in the 1990s, not to give the Walt Disney Company longer protection for the original Steamboat Willie cartoon, as copyright detractors love to pretend.

In its consultation paper on copyright extension, the Canadian government laid out the benefits of copyright extension from the perspective of its supporters;

“A longer general term of protection will increase opportunities for Canadian rights holders to monetize copyright-protected content, thereby encouraging investment in the creation, acquisition and commercialization of such works. It will also harmonize Canada’s general term with that of our major trading partners, allowing Canadian rights holders to compete internationally on a levelled playing field.”

It also noted that “user stakeholders” had expressed concern about the twenty-year hiatus in works entering the public domain once the copyright term is extended. Works that would have fallen into the public domain in Canada on January 1, 2023 will now enjoy an extra twenty years of protection. While this had led to some hand-wringing, most users of copyrighted works won’t notice any difference. The main impact will fall on publishers, like Broadview Press in Canada, whose business model largely depends on reprinting works that have just fallen out of copyright and into the public domain. Broadview will now have to wait a couple of decades before pouncing on the next work to enter the public domain in Canada.

Economists have long argued over the modelling to determine net benefit or loss from stronger copyright protection. While a longer term for an existing work clearly carries no additional economic production incentive for the author since the work is already in existence, a longer term can provide an additional incentive for the creation of new works. Moreover, a longer term can also spur investment in existing works still under copyright through publication of new editions, and innovation in new formats including digitization, restoration and re-release of earlier works, such as films and other AV content. However, from my perspective, the most important benefit is that Canadian rights-holders, creators and creative industries, will now play on a level playing field with their competitors in most advanced nations. As of midnight, December 30, 2022, Canada will officially join the “life plus 70” copyright club. It’s about time.

© Hugh Stephens, 2022. All Rights Reserved.

Last month I wrote about the emerging phenomena of AI-generated art through widely available programs such as DALL-E 2, Stable Diffusion and others, and of the threat they pose to artists, designers, photographers and all those who depend on the protection of copyright to earn their livelihood. This also includes musicians and writers. Artificial Intelligence (AI) is now being used to create “sound-alike” music where users can sing in their favourite performer’s voice, and commercial AI programs can be purchased to write marketing copy, and even novels. Allowing the widespread misappropriation of copyrighted content to produce AI-generated products that compete on a commercial basis with the original creation, while at the same time using unauthorized inputs from the original works to help produce the competing product, is a misuse of AI. It is also a counterproductive policy that threatens to undermine the fundamental basis of economically significant cultural industries. Furthermore, it is just plain wrong, stealing the work of creators in a misguided attempt to boost “innovation” and development of AI.

The UK’s Proposed Limitless TDM Exception

This issue is playing out right now in the UK and poses an immediate threat not only to creators and copyright industries in Blighty but globally, given the negative precedent this will set if it becomes law in Britain. The UK government recently unveiled the results of its public consultation on AI and Intellectual Property. Among the more startling recommendations was the proposal on text and data mining. As stated in the discussion paper (Section 58-61).

“The Government has decided to introduce a new copyright and database right exception which allows TDM for any purpose (emphasis added)…Introducing an exception which applies to commercial TDM will bring benefits to a wide range of stakeholders in the UK…The benefits will be reducing the time needed to obtain permission from multiple rights holders and no licence fee to pay…Rights holders will no longer be able to charge for UK licences for TDM and will not be able to contract or opt-out of the exception.”

Frankly, this is nothing short of outrageous. It reeks of the British government’s desperate desire to prove that Brexit was not the colossal mistake it clearly was by trying to out-manoeuvre the EU. This proposal would make the British TDM exception broader and less restrictive than the existing EU law (which allows TDM only for non-commercial research purposes), all in the name of promoting innovation. What it is really doing is trying to steal data mining jobs from other jurisdictions on the backs of creators and copyright industries. If this misguided policy comes into effect, the vibrant British cultural sector will pay the primary price, although respect for copyright will be weakened generally. Not surprisingly, British artists have spoken up. Equity’s Audio Committee wrote to the Minister responsible pointing out the catastrophic effect the exemption could have for UK based performers and their professional work if implemented. As an example, the Committee’s letter stated that any video or sound recording that is publicly available could to be mined for free by third parties, without the consent of the copyright owner, to generate new AI content.

DACS (the Design and Arts Copyright Society) stated that the new TDM exception will “drastically weaken copyright protections for copyright holders in the UK, which supports the livelihoods of workers and businesses across the creative and cultural industries.”  Stressing that it was not opposing the development of AI, DACS noted that licensing copyright-protected works is a vital revenue source for visual artists at all stages of their careers. The UK government’s paper admits that if implemented the new TDM exception will put out of business those who have built business models around data licensing, but apparently that’s not the government’s concern. It’s all about incentivizing AI research, you see, and damn the consequences. While TDM is often undertaken for purposes other than development of AI, the wording of this proposal would allow an exception for any purpose, in other words specifically enabling TDM to feed AI algorithms.

Arts and culture are major economic drivers in most developed economies and the UK is no exception. The creative economy in the UK is a major provider of exports, employs over 2 million people and contributed over £115 billion in 2021 to the British economy, according to the report “Creative Industries: Trade challenges and opportunities post pandemic” prepared for the UK’s Department of International Trade. Are these benefits and these jobs to be sacrificed on the altar of “AI innovation”? It is a remarkably short-sighted proposal and probably contravenes Britain’s international obligations under the Berne Convention and TRIPS[i]. To date, no law has been introduced to give effect to this recommendation and given the current disarray in which the British government finds itself domestically, its implementation will hopefully be delayed, allowing for sober second thought.  

Developments in Canada Regarding TDM

While hopefully this ill-conceived recommendation will be reconsidered, it is a cautionary tale that should be borne in mind by Canada and other states that may be contemplating legislating a TDM copyright exception. (In the US, TDM is governed by fair use under Section 107 of the Copyright Act. While each case is decided on its merits, it is unlikely that a court would make a determination of fair use for unauthorized use of copyrighted material for TDM purposes if a TDM licence was available and/or if the final work produced from the inputs harmed the market for the original work by competing with it commercially). It is all too easy to trample creators’ rights—in the process gutting a thriving industry that contributes immensely to national economic and cultural well-being—in the misguided rush to clamber aboard the AI train. If a TDM exception is considered necessary, it should be narrowly tailored to deal with the specific needs of academic research, while staying consistent with international treaty commitments, and not be used to create a product from text mining that will unfairly compete with the work of the original creator.

In Canada, an update to the Copyright Act is overdue by several years. As part of that process, two Parliamentary Committees were struck in 2019 to review the Act. One of those committees, the INDU Committee, recommended that what it called “Informational Analysis” (TDM by another name) be permitted under the Act, (Recommendation 23), either by adding it to the list of specified fair dealing purposes or by creating a specific exception. A consultation paper on a “Modern Copyright Framework for Artificial Intelligence and the Internet of Things” was released by the Department of Innovation, Science and Economic Development in July of 2021, inviting public comment. TDM was one of the issues raised. No recommendations have as yet come forth as a result of this consultation.

There is pressure from academic circles to circumvent the licensing conditions that many publishers maintain when permitting use of their materials even though publishers often grant rights to use materials for research purposes without charge, or with minimal conditions such as attribution or on the condition that the new product does not create a substitute for the original. In other cases, rights-holders may exercise their right to require a licence fee, which can be an important revenue source in some copyright-related industries, such as publishing. I can understand that from an academic point of view, it may be frustrating to have to contact multiple rights-holders to get permission to use content, or to find that access to some materials is blocked or constrained by licensing requirements. Reasonable arguments can be made that some forms of TDM are necessary for research and innovation, which could include AI. Could these not be restricted solely to public domain materials? Ideally, but not always.

Dr. Lucie Guibault of the law faculty of Dalhousie University (Halifax, NS) has examined the issue of TDM in Canadian law and concludes that it is not currently legal under either the exception for temporary reproduction (Copyright Act, Section 30.71) nor under fair dealing, notwithstanding that it could meet the enumerated purpose of “research”. This is primarily because of the amount of reproduction that takes place—basically all of a work. With respect to the argument that researchers should restrict themselves to public domain works, she points out this is not always practical, referring as an example to the work of academics such as Professor Andrew Piper of McGill University who as part of his research analyzed the plots and popularity of contemporary novels, all of which are copyright protected. (Note, however, that Piper’s work was not to create a database for AI purposes, but rather to analyze a range of works and draw conclusions from that data analysis).

Prof. Guibault’s solution is to introduce a text and data mining exception into Canadian law, along the lines of what has already been done in the EU (restricted to non-commercial research purposes), although she believes that the non-commercial limitation is too restrictive. She bases her argument on the fact that a TDM exception will have no impact on the economic interests of the rights-holder nor in any way affect the normal exploitation of the work. That would suggest a narrow exception and would rule out the kind of data scraping that is producing AI-generated art through DALL-E 2 and other programs. It would also rule out the kind of limitless TDM exception proposed by the British government.

One really important issue to bear in mind when promoting an academic, “non-commercial use” exception is that of data laundering. This occurs when data is collected by a non-commercial entity, such as the German non-profit LAION, which in turn then provides the data to a platform that exploits it commercially. In this case it was LAION that provided the data on which Stability.AI has built its AI-generated art tool Stable Diffusion. The dangers of data laundering are well covered in this article.

As countries come to grips with the need to promote AI research and development, they need to avoid a “race to the bottom” when it comes to shedding protection for copyrighted works. Allowing holus-bolus unauthorized copying and scraping of copyrighted material to feed AI research destroys any market for licensing content while in some cases producing AI-generated works that unfairly compete with the original work of creators. This erodes economic incentives for authors and artists and undermines copyright-based industries that provide substantial employment and contribution to GDP, in addition to nourishing the cultural soul of nations.

AI is here to stay. It is a legitimate research tool and can bring new products and services to market. Creators themselves often use it. In the rush to embrace AI, policy makers must not ignore the critical role that copyright has played for over two centuries in spurring creativity and creating economic and cultural welfare. As technology has developed, copyright has adapted. It has not been thrown under the bus. Respect for copyright must remain one of the cardinal principles taken into account when designing and implementing policies to promote AI.

© Hugh Stephens, 2022. All Rights Reserved.

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[i] TRIPS-Trade Related Intellectual Property Agreement, an agreement among members of the World Trade Organization.

This paper has been updated to add a reference to the Government of Canada discussion paper on Modern Copyright and Artificial Intelligence, and the Internet of Things, published in July 2021.

As Bill C-18, the Online News Act, continues its step-by-step process through the Canadian Parliament, another shoe has dropped. Meta, Facebook’s parent company announced it will be laying off 13 percent of its global workforce (11,000 people) owing to two quarters of losses and a sinking share price. Meta’s valuation is down more than 70 percent so far this year, to levels not seen since 2015. This announcement came just a few days after Facebook executives appeared before the Parliamentary committee (Standing Committee on Canadian Heritage) holding hearings on C-18 to object to the draft legislation because it will require Facebook to negotiate payment with eligible news providers for use of, or facilitation of access to, news content. Their appearance was arranged as a result of the company publicly complaining it had not been invited to testify, notwithstanding the fact it had failed to request an invitation, the normal procedure if a stakeholder has something to say. And Facebook certainly had something to say, given that it is one of two mammoth internet platforms (the other being Google) that are the current intended targets of the legislation.[i]

On a global scale Meta, which owns Facebook, Instagram, WhatsApp and others, is facing a problem common to many companies that become very successful very quickly. Growth is not infinite. As everyone knows, Facebook took an early lead role in the online social networking space and never looked back, gobbling up competitors or putting them out of business. But after almost two decades of success, Facebook’s rose is fading. With the younger demographic, it is no longer the go-to app, with the “cool crowd” migrating to newer platforms like TikTok. History tells us that many companies fail to stay on top, no matter how dominant they are for a time, unless they periodically re-invent themselves. Sticking to the original playbook while the world moves on has negative consequences. Just ask AOL, BlackBerry or BlockBuster. Growth is a heady drug for the market, but unrealistic expectations are often created.

Reinvention and getting ahead of the curve is what Mark Zuckerburg has been trying to do with his bet on the metaverse (the world of virtual reality) without, however, much financial success to date. He may well be on the right track but is a few years ahead of his time. Meanwhile, 11,000 of Meta’s employees are paying the price. This is as an abrupt turnaround in plans. Just a few months ago, Meta was announcing expansion plans in Canada where it was going to hire up to 2500 new staff in Toronto.

All this comes at a time when Facebook is in the sights of various governments because of its market dominance–despite its current challenges–particularly with regard to online advertising. To sell ads, Facebook needs to keep users on the platform. To engage them, you need content. As anyone who uses Facebook knows (and that is most of us—it is pretty hard to avoid) much of the content is provided by the users themselves in the form of posts, photos, and videos. Users also add news items to discussion threads, through articles, snippets and links. The posted news content is often expensively and laboriously produced by media outlets who are in competition with Facebook for ad revenues, yet Facebook and other social media platforms have managed to corner most of the ad market while producing almost no original content of their own. In other words, part of the intermediaries’ product offering is based on freeriding and monetizing the content of others, the “others” being struggling news media whose main source of revenue has gone to the platforms because of the latter’s ability to micro-target users through tracking their online habits. Is this fair? Is this legal?

From the perspective of copyright law, in most cases it is almost certainly legal insofar as snippets or links to news content are concerned. The limited amount of content actually displayed on the platform normally meets the threshold of fair dealing, or fair use in the US. However, infringement of copyright is not the issue. It is market dominance. In other words, it is a competition rather than a copyright issue. Canada is not the only country trying to get its arms around this. Australia has done so, through legislating its News Media Bargaining Code. The US is looking at the issue. The US Copyright Office conducted a review of US copyright law to determine if changes were needed to allow news publishers to better protect their content. The Office recognized that adequate funding for journalism may be at risk but concluded that the “press publishers have significant protections under existing law and…the challenges of funding journalism in the internet era do not appear to be copyright-specific”. In other words, look to other remedies, like competition law, which is the approach taken by Australia and Canada.

Bill C-18, the Online News Act, is following Australia’s example, with some minor tweaks, to require large digital intermediaries (Google and Facebook for starters) to negotiate financial compensation with news content providers for use of news content to attract users. This is not because the platforms are infringing on the copyright of news providers but because of significant market imbalance that is putting in jeopardy the viability of professional media. Governments have recognized that without a professional media, the field is open for misinformation, conspiracy theories, manipulation of the news and other threats to an informed citizenry, a key element of democracy.  But when Australia brought in its legislation, Facebook, in a clumsy move that spectacularly backfired, (“Facebook in Australia: READY, FIRE, AIM”) shut down all news feeds on its platform, including sites that provided public safety information, access to health services, etc. Under a torrent of criticism, it climbed down from this position and was suddenly able to find a way to reach content deals with Australian media, thus avoiding being designated under the Code. (The Australian government also agreed to minor concessions such as giving digital platforms one month’s notice before they would be formally designated, which Facebook claimed as a victory). The platform is now threatening to play a similar game of chicken in Canada.

In his appearance before the Parliamentary Committee studying the Bill, Facebook Canada’s head of public policy Kevin Chan commented that if the Bill was passed in its current form, Facebook “may be forced to consider whether to allow sharing of news content on Facebook in Canada”. If that is not a threat, I don’t know what is. That threat led to an op-ed from Australian commentator Emma McDonald,
“Big Tech will threaten, but Canada doesn’t have to listen”. One of the members of the Committee, Liberal MP Anthony Housefather, wrote in another op-ed;

“Whistleblowers have told us that Facebook deliberately caused havoc in Australia in the hopes of intimidating its people and legislators into making the changes it wanted. It blocked fire and rescue services’ pages during wildfire season. Suicide prevention support. Domestic violence services. Kids’ cancer charities. Children’s hospitals. The list goes on and on. The majority of pages were restored only a week later, after the Australian Senate had adopted a bill that included amendments demanded by Facebook.”

In his testimony Chan claimed that Facebook provides hundreds of millions of dollars of free advertising for news publishers by carrying links to their content. From his perspective, Facebook doesn’t benefit from having the content on its platform; it “helps” media. He claimed that the legislation would force Meta to pay for links posted to the platform by the publishers themselves, exposing the platform to open ended financial liability. Let’s be kind and just say this is hyperbole. It is perfectly true that the publishers derive some benefit from exposure on Facebook which explains why they will at times post their own articles to the platform. Will Facebook have to compensate a publisher each time it promotes its own content on Facebook? The legislation says nothing of the kind.

What C-18 will do is to require negotiation of fair compensation for use of news content or providing access to news content. As I wrote in an earlier blog, a version of which also appeared as an op-ed in the National Post;

“The platforms argue that they should not be required to pay news publishers when they themselves have posted the link. The answer comes in the wording of the legislation requiring “fair compensation.” Fair compensation negotiations will take into account the benefit that news publishers gain by posting links to the platforms. That benefit will be offset against the greater benefit the platforms gain by using news content to attract viewers and advertisers. That trade-off will normally be worked out during bilateral negotiations between the publishers and the platforms, with the government stepping in only if there is a failure to reach agreement”

While links are not mentioned in the Bill, facilitation of access to content “by any means” is. This includes links, which will be factored into the negotiation of compensation (a) either “voluntarily” or (b) as part of mandated arbitration. This is how the legislation will redress the imbalance in the online advertising market built on the back of uncompensated content. Meanwhile, Facebook will huff and puff and threaten to block news content on its platform in Canada.

It would be self-defeating for the platform to do so. It is in enough trouble without damaging one of the key attributes it employs to attract users; providing an essential channel for the exchange of information. It may be engaged in broad cost-cutting, and understandably does not want to give up any more of its revenues than it has to (estimates of the annual amount that would accrue to news media from internet intermediaries is in the range of CAD$300 million), but Facebook is not about to shut down news feeds in Canada. That would be a self-inflicted wound that would hasten its own demise by undermining its relevancy for users.

Facebook will continue to oppose the Canadian legislation, just as it did in Australia, because it knows that other governments are watching. That is part of the price of being the big dog on the block. At the same time, it is having to grapple with its own competitiveness issues–although Meta is a long way from being counted out. Watching how these two intersecting issues play out will be an interesting exercise.

© Hugh Stephens, 2022. All Rights Reserved.

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[i] Neither platform, called a “Digital News Intermediary” (DNI) in the legislation, is named. Rather, DNI’s are required to self-identify based on a number of criteria if there is a significant bargaining power imbalance between them and news businesses, having regard to the following factors:

(a) the size of the intermediary or the operator;

(b) whether the market for the intermediary gives the operator a strategic advantage over news businesses; and

(c) whether the intermediary occupies a prominent market position.

If a platform does not do so, and if so requested, it must provide the CRTC with sufficient information for the Commission to determine if a given internet intermediary is exempt from being categorized as a DNI.

This blog post, coming at the time of Remembrance (Poppy) Day, November 11, reflects on the enormous, beneficial attributes of the internet—when used for positive ends—but also on the costs of personal sacrifice embodied in the Remembrance Day ceremonies. It is the story of how I was able to pull back the curtains of time to learn more about a relative I had heard of only vaguely many years ago, my mother’s cousin (my first cousin, once removed), Geoffrey Boisselier Davies. It is also a story about how digital tools created by entrepreneurial web-based companies can help us unlock the secrets of the past.

The internet has changed our lives in many ways, for the better and for the worse. It has enabled online harassment and revenge porn but has also been the means by which people have connected, reconnected and fallen in love. It has provided the means for artists and creators to reach audiences they could only dream of pre-internet, but it has also been disastrous to many creators by enabling rampant digital piracy. It has extended the reach of medicine and education and expanded access to knowledge, but has also allowed the invasion of privacy, manipulation of emotions and the spread of misinformation through self-reinforcing algorithms. I have been as critical as any of the failings of the internet in terms of promoting abuse, but we also need to recognize its strong points and many contributions. Perhaps the answer to the misuses to which the internet has been put is providing sufficient oversight and responsible regulation where needed, while encouraging its strong points.

One area where the internet has been a game-changer is searching for ancestral family information. A whole eco-system serving this need has sprung up, dominated by Ancestry.com, a company with a number of spin-offs (Archives.com, which focuses on local history and census data; FindaGrave.com (self-explanatory), Newspapers.com, which contains over 20,000 digitized titles, WeRemember.com, online memorials, Genealogy.com, based on vital statistics, and some others that have changed over the years such as MyFamily.com and RootsWeb.com, both related to family trees. Ancestry is not the only game in town, with competitors such as MyHeritage.com and FamilyTreeDNA.com. Quite apart from these commercial services, there is a plethora of digitized information available through various websites, archives, and other public record offices that can be accessed directly.

In undertaking genealogical research, copyright issues will sometimes arise. You need to be careful if you publish the contents of copyright protected documents. Personal letters are almost always covered by copyright unless they were openly published or written so long ago that they are now in the public domain. The most recent example of this is the case brought by the Duchess of Sussex, Meghan Markle, against the Mail on Sunday, a British tabloid that published her personal letter to her father. The copyright on a letter belongs to the author of the document, not the recipient. Therefore, when publishing family research involving personal letters, care must be exercised. Obituaries are also subject to copyright protection as I pointed out in a blog posting I wrote a couple of years ago, “Obituary Piracy Punished: Has Infringement No Bounds?”

Even services like Ancestry.com have to deal with copyright issues. They catalogue vast amounts of publicly accessible information, plus they provide a platform for users to contribute their own information. In a recent case, Ancestry moved to dismiss a class action lawsuit brought against it for allegedly misappropriating information and photographs drawn from class yearbooks. Ancestry’s defence rested partly on the argument that material appearing in yearbooks is not private and is widely available, including in libraries. As for material that has been contributed by users, Ancestry declines to accept responsibility. Its copyright statement indicates that;

“Content which has been contributed to public areas of Ancestry sites listed above by users remains the property of the submitter or the original creator and we are a licensed distributor of such content. Occasionally, a person may feel that content submitted by another user is their property, or is covered by the copyright of someone other than the submitter. Please remember that we are only the distributor of user supplied content and the submitter, not Ancestry, is the one who has violated copyright if such a violation has occurred.”

While copyright guidelines need to be kept in mind when searching public databases and when using services such as Ancestry.com and MyHeritage.com, both of which work on a subscription basis, many people have harnessed the power of the internet to research their family histories and have located documents leading to family discoveries that would have been impossible to access in a pre-internet era. I am no exception. Here is my personal story of discovery as a testament to the enormous power of the internet if harnessed for useful rather than destructive purposes. It is a story of discovery and finding information that was hiding in plain sight. It is also my way of highlighting the positive outcomes that the internet can provide.

Geoffrey Boisselier Davies

Recently, going through some old family papers, I came across a letter from the late 1980s written by my aunt, my mother’s sister. She was recollecting at my behest what she remembered of family history to try to help me to assemble a family tree, a project I had embarked on at that time. Her letter mentioned a Geoffrey Rees-Davies as she called him, who was the son of my grandmother’s sister, and thus a cousin to both my mother and my aunt. My aunt had written that her aunt and uncle had a son, Geoffrey, who had gone to Cambridge University to study (“read”) law. She said that when the First World War broke out he rushed off to volunteer and, like so many young men, was killed in the First Battle of the Somme (1916). She continues;

“When (Geoffrey’s father) Hughes Rees-Davies died he left most of his money in trust for a bursary or scholarship to Selwyn College, Cambridge. I don’t know if it was actually named after Geoffrey…Also, Geoffrey’s portrait and medals were handed over…I can also remember that painting lit up with the medals laid out in a glass case below…The next time you are over in England maybe you should visit Cambridge and see the portrait”.

I did not do so, even though I have been to Cambridge several time since. Frankly, I forgot about it until recently re-reading the letter. I was intrigued and wanted to find out more–about the painting, the scholarship and Geoffrey himself. What if there was a memorial to him at Selwyn College, Cambridge? Had he completed his studies? What did he look like? Etc.

So, I wrote to Selwyn and was put in touch with their very competent and dedicated archivist Elizabeth Stratton. Her initial reply was disappointing;

“…I can’t find any details for a Geoffrey Rees-Davies attending Selwyn and he’s not on the list of those who died in the First World War or included in any of the lists of College pictures. I didn’t recognise his name when I first read your enquiry but wondered if I had overlooked him. But by coincidence, there was a Geoffrey Boisselier Davies who came in 1912 and was killed in 1915 and so a year earlier than the other Geoffrey.”

Oh well, I thought. It was worth a shot. I did have a bit more information that I sent her regarding the fact that the family had lived in Eastbourne on the south coast, which prompted another response a few days later;

“Your latest information about the connection with Eastbourne was very helpful and I have now been able to do some more searching on the family history site, Ancestry and more importantly have solved the mystery (well at least part of it)! I have finally found the details for the family and it seems that there was a slight mistake with their surname. (It) was actually…Reid Davies”

She found Geoffrey’s father, Dr. Hughes Reid Davies by searching the English 1911 census documents online. It mentioned he had 2 children, one of whom was Geoffrey’s sister. He was not named (maybe because he had left home by then) but Ms. Stratton then went back to digitized baptismal records and searched for any Geoffrey’s born in London before 1900. She found a Geoffrey Banister Davies recorded but when she clicked through to the actual record, it became apparent that the handwriting was blurred, and the name could have been Boisselier. She then checked the information she had on Geoffrey Boisselier Davies and found a copy of his obituary mentioning his father, Dr. HR Davies!

Ms. Stratton continued;

“So I can confirm that Geoffrey Boisselier Davies, as that seems to be the name of your ancestor after all, came to Selwyn in 1912 and was in both the 1914 College football and cricket teams; he was then Captain of the Essex Regiment and sadly was killed in action on the 26th September 1915 rather than 1916”.

With this information in hand, I promptly googled Geoffrey Boisselier Davies and was surprised to find several entries, including one from Wikipedia. It turns out that Geoffrey was an amazing young cricketer who may have one day played for England had he not been killed at the Battle of Loos. ESPN’s Cricket Information page records that he hit 1487 runs in 90 innings and took 141 wickets during his brief first-class playing career (1912-14). He was a right-handed batsman and bowled “Leg-break, Right-arm slow-medium”. His last match was for Essex against Somerset on August 31, 1914, almost a month after the war had broken out. In that game, he scored 118 and took 4 wickets for 18 runs. Cricket record keeping is pretty impressive! (It has that in common with baseball, among other similarities). A bit more digging turned up a book published in 2015 entitled “Final Wicket: Test and First Class Cricketers Killed in the Great War”, by Nigel McCrery, a sad litany recounting the fate of literally hundreds of young athletes gunned down on the killing fields in France. Geoffrey’s image features on centre of the front cover.

But that’s not all I found on the internet. Because he was an officer in the Essex Regiment, he features on several websites that document regimental history, and on Facebook. The account of his final day, September 26, 1915, makes chilling reading;

“The Essex men were ordered forward at about mid-day, advancing in the direction of Stutzpunkt 3 from which both shell and machine gun fire began hitting the ranks as they crossed the Lens-La Bassée Road. Part of the Battalion suffered heavy casualties and was forced to take shelter in the outskirts of the village. The remainder of the Battalion went on towards Stutzpunkt 4 but was held up by the uncut German wire. There was little shelter and casualties began to mount until the order was heard to retire. Small parties fell back the way they had come but suffered further casualties as the Germans continued to pour fire into them from Hulluch.

A German officer of the 26th Regiment who were opposing the Essex that day wrote: -“The Battalion Staff was on the left flank…whence we had a wonderful view. The English attacked in whole hosts and with great dash. Our men fired standing up as fast as they could pull their triggers. No Englishmen got through the wire entanglement, and the ground in front was covered with bodies.”

The Battalion were to lose 18 Officers and 353 men that day including Geoffrey and their Commanding Officer. Twelve attacking battalions suffered 8,000 casualties out of 10,000 men in four hours. What a waste of human life. What a waste of youthful potential. Geoffrey had just completed his degree and had been admitted to the Middle Temple to qualify as a barrister. How many of the other almost 375 men from that one regiment on that one day in 1915 could have gone on to do great things, or at least lead normal lives. It is truly shocking to think of the pain so many families endured as their sons, brothers, and fathers were sent to the sausage machine.

I learned all this information with just a few strokes of the keyboard, once the mystery of identifying Geoffrey was solved by Ms. Stratton through her archival sleuthing. I was even able to find a headstone in Ocklynge Cemetery, Eastbourne of his sister Vera (who died in the Spanish flu epidemic of 1919) in which Geoffrey is also memorialized, through FindaGrave.com. The photo was added by a photo volunteer only in 2019. However, Geoffrey’s remains are not in Eastbourne as, along with many others, they were never recovered from the battlefield. His name is inscribed on the Loos Memorial, Panel 85-87, which commemorates 20,000 British soldiers who have no known grave, according to the Commonwealth War Graves Commission.

But what of the scholarship to Selwyn and the portrait? Ms. Stratton came through yet again, managing to locate a copy of the last will and testament of Dr. HR Davies, in which he bequeathed his estate to Rossall School, which Geoffrey had attended before going up to Cambridge. That document made it clear that the scholarship was not designated for a student at Selwyn College but rather for a student at Rossall in financial need, preferably one who was a sportsman, to attend Selwyn. The portrait of Geoffrey, painted posthumously, was also apparently given to Rossall School at that time.

The next stop was, of course, Rossall School, which is a noted “public” (i.e. private) school in Lancashire. I immediately corresponded with the School’s archivist. I would like to tell you that an illuminated portrait of Geoffrey, with his medals, still graces one of the “Hogwart’s” like halls at Rossall, and that the scholarship is still being awarded. Sadly, that is not the case. To date, Rossall School is not able to locate any reference to either the portrait or the scholarship. That is fully understandable as this all happened going on a century ago, but I had hoped that perhaps Geoffrey’s memory had endured at Rossall. That may not be the case, but it has endured on the internet, which to me is perhaps even more remarkable. With the right tools and the right knowledge, the amount of family information that can be located with just a few keystrokes is really quite amazing.

I am still hoping that I might be able to track down the elusive painting and medals as there is a portrait of Geoffrey on the internet (it’s not a very good likeness judging by the photos I have of him both in sports gear and military uniform, so I am assuming it is the posthumous portrait painting). It is attributed to the Essex Regiment Family History Facebook page so perhaps it is hanging in an officers’ mess somewhere.

Geoffrey Boisselier Davies was hiding in plain sight on the internet. Back in 1988, when I first got my aunt’s letter I could never have dug out all this information, photos, and records. Some people have made a very successful business out of retrieving family information, others contribute research as a hobby related to their interest in sports, or history, or just like trudging around cemeteries. This collectivity of knowledge is now widely available. My personal search has taken me from just a name in a letter to staring into the eyes of a young man who, like so many others, gave his life for his country, bringing both pride and grief to his parents. It is just one story, among many, of the lives cut short that we remember on November 11, and of the pain of parents who saw their hopes and dreams for the future evaporate as their children predeceased them.

I would like to extend my thanks to Elizabeth Stratton, Archivist at Selwyn College and Richard McDowell, Archivist at Rossall School for their kind assistance.

© Hugh Stephens, 2022. All Rights Reserved

As a postscript to the penultimate paragraph above, regarding the origin of the portrait of Geoffrey Davies posted on the Essex Regiment’s Family History site, I have been informed that it was taken from the Role of Honour page in the illustrated London daily, The Sphere, dated November 27, 1915. I found that page through the British Newspaper Archive (here). It appears to be a sketch based on a photo. So, I guess the mystery of the missing posthumous portrait remains unsolved.

As far as grovelling, abject apologies go, this one would win an Oscar. The author was not just “deeply sorry”, she was devastatingly contrite, spelling out in detail how her organization’s newsletter had used language that she described as “denigrating, racist and very harmful”. She admitted the newsletter had caused harm and pain and pledged that the organization (Art Canada Institute) would do better in future, and is committed to deepening its own learning and engaging more closely with artists to improve the Institute’s understanding of their work. What was the heinous action of the Institute that prompted this full-throated mea culpa? The newsletter had linked the work of several artists who express their work through costumes to Hallowe’en!

Just in case you didn’t know, Hallowe’en is no longer an activity just for the fun and delight of children who go Trick or Treating in costumes. It has been hijacked by adults who either dress up at the door when handing out the goodies, or stand costumed behind their little offspring or, as happens frequently, dress up to go parties, sometimes roaming the streets and causing trouble. Some of the costumes worn, usually by adults, are considered inappropriate by today’s standards. (Just ask Prime Minister Justin Trudeau who was famously outed by Time Magazine for wearing a blackface and turban costume back in his youthful days before politics). Just in case you aren’t sure what is inappropriate these days, Good Housekeeping has a list of the 15 most offensive costumes (with examples!). Universities regularly publish guidance for students, (who are supposed to act like adults, and unfortunately often do) hoping they will think twice before dressing up in ways that could be considered offensive by some groups or in costumes that might be considered cultural appropriation. This stating of the obvious by colleges drives some people crazy, complaining that “woke” institutions have no business telling students what or what not to wear off campus. Let’s just say that in the political and social environment in which we currently live, which can variously be described as “acutely attuned to longstanding issues of social justice” or “political correctness taken to extremes”, Hallowe’en is no longer what it used to be. Associating an artist’s work with it can lead to grief, as the Art Canada Institute found out.

According to the apology, which I received by email but which doesn’t appear to be up on the Art Canada website (nor is the offending newsletter);

 “Hallowe’en (is) a holiday that has, both historically and in the present, often led to costumes that are racist, bigoted and cruel in their representation of people who experience intense and systemic discrimination. (It is) also associated with commercialism and triviality…”

Of course, as soon as I received the apology, it sent me scrambling to find the offending material. In what was obviously a light-hearted attempt to leverage the theme of Hallowe’en, the Institute’s October 28 newsletter opened with “As Hallowe’en approaches, we’re looking at how artists in Canada have used the transformative power of costume to trick the eye and treat the mind”.

“For artists, costumes can be constant in their creativity, not limited to October 31. In the works below (eleven artists were featured, 9 of them still living) we share how dress up plays a quintessential role in inspired expressions, the presentation of alter ego, and the realization of parallel universes in which artists provide audiences with both playful absurdities and well as subversive comments on bigotry and oppression…Through the power of costume, lines are blurred between perception and reality and we are presented with new worlds, meaning and possibilities”.

None of that sounds racist, denigrating or harmful to me, but I guess perception is in the eye of the beholder. The two artists no longer in the land of the living, one of them a 19^th century photographer, clearly didn’t object, but some or all of the remaining nine artists must have. The images of the works presented were all used with permission, but it appears that none of the artists was involved with the write ups. The descriptions of the sometimes “edgy” works were whimsical but factual, and in all cases there was a link to further information, either the artist’s own website or a scholarly work. The real problem appears to have been the linkage with Hallowe’en, which some likely found offensive for reasons stated above, or because it appeared to trivialize the role of their costume-related art by associating it with the annual dress up extravaganza. It’s all rather unfortunate and unpleasant for those concerned, especially for Sara Angel, Founder, Executive Director and Publisher of the Art Canada Institute. She is herself a well-known art historian and parent to three teenagers (according to her bio)—which may have led to her not looking at Hallowe’en through the same lens as some others. (My speculation).

What the artists were doing, from a copyright perspective, was asserting their moral rights. They retain those rights even if the economic rights have been transferred. Of the three moral rights, (outlined in Canadian Copyright Law by Lesley Ellen Harris), paternity (right to claim authorship), integrity (right to prevent a distortion, mutilation or other modification of the work to the prejudice of the honour or reputation of the author), and association (right to prevent use of a work in association with a product, service, cause or institution), the latter two would seem to be relevant. In this instance, of course, there was no lawsuit alleging a violation of the artists’ moral rights; instead there was a complaint, a discussion and an apology. The most famous legal example of the exercise of moral rights in Canada is the case of artist Michael Snow’s flying geese at the Eaton Centre back in the 1980’s, as I wrote about here.

The “Hallowe’en hook” that the Art Canada Institute used to grab readers’ attention is understandable as it is common practice to use contemporary events to highlight issues to generate interest. On the theme of Hallowe’en, an informative and fun blog was written a few days ago on the “Copyrightability of Jack O’Lanterns” by Sidney Blitman for the Copyright Alliance. In case you’re wondering, whether a carved pumpkin qualifies all comes down to a couple of things; whether the carving is truly original (there are only so many ways to carve a pumpkin, which might engage the “merger doctrine”, which applies when an idea can only be expressed in a limited number of ways, thus denying copyright protection), or “fixation”, which is required under US law. A pumpkin won’t last forever, and it can be asked whether the artistic work carved into the surface of a slowly decaying vegetable (or is it a fruit?) qualifies as fixation. However, as I have written in earlier blog posts (“My Fixation with Fixation”) and (“Copyright Protection for Transitory or Ephemeral Works: Going Beyond the Photographic Record”), a recorded design might be sufficient to establish copyright even if the object no longer exists (like a sand design or, yes, an originally carved and designed pumpkin that has soggily lapsed into a state of mould).

I am sure that the intention of the Art Institute Canada in making reference to Hallowe’en in its October 28 newsletter was to tweak the interest of readers in art linked to costumes by referencing an upcoming event that affects many families. However, the law of unintended consequences kicked in big time, resulting in an abject apology appearing the same day, within hours, when at least some of the artists exercised their moral rights by objecting to the context in which their work was portrayed. While I generally try to avoid Hallowe’en and Hallowe’en parties, in future I will certainly be more conscious of the minefield one potentially walks into when even thinking about a Hallowe’en costume.

The most positive spin one can perhaps put on this is to consider it a “learning moment”. I hope everyone has learned that Hallowe’en is no longer just a fun evening for the kids.

© Hugh Stephens, 2022. All Rights Reserved.

If you are not an early tech adopter, you may not have heard of, or heard much about, DALL-E 2. Not being on the cutting edge of hi-tech myself this term had not crept into my consciousness until a couple of weeks ago, while I was up at my cottage north of Toronto enjoying the autumn foliage. While basking on the dock in my “Muskoka chair” (aka Adirondack Chair for my US friends) noodling on my phone, I saw reports that Microsoft will be soon be bringing Dall-E 2 to a laptop near you by integrating it with Bing and Microsoft Edge. Dall-E 2 is an artificial intelligence (AI) program that produces artwork through the use of verbal and textual prompts. Sort of like, “make me a picture of cats and dogs wearing funny hats in the style of Rembrandt”. Or to be more contemporary, “make me a picture of purple dragons breathing fire in the style of Greg Rutkowski”. (More on Rutkowski later).

As I have written about in the past, the expanding use of AI raises many issues for creators and for copyright; see, for example, my blog post on “AI, Ethics and Copyright”. These range from ownership/authorship to liability for infringement to dealing with piracy, both of and by AI-generated content. Who is the author of an AI generated work? The US Copyright Office (USCO) has taken a clear position that there must be a human hand behind an AI-generated work for it to be subject to copyright. As I wrote earlier this year, the USCO rejected on appeal the application for copyright registration of an art work that the applicant claimed was the exclusive creation of a machine (one that he had invented). In the UK, by contrast, there is a provision for copyright protection for machine-generated works where no human author of the work is involved. The term of protection for such works is less than that of works authored by a human.

The ease of producing a passable image through voice or text prompts raises once again the question of who owns the copyright on an AI-generated work, or even whether a work like this can be subject to copyright protection? If I had exercised some skill and originality, mimicking the style of Monet which I had studied from artbooks, online images or the real paintings while looking at the foliage across the lake from my dock, arguably the copyright in the artwork would be mine. But all I did was type in a few words, allowing the algorithm to compile four images from countless impressions of foliage, chairs, docks and Monet paintings scraped from the internet, of which I chose one. The only originality I exercised was the choice of prompts. Moreover, the identical prompts produce slightly different images each time, so there is a degree of randomness introduced into the process by the algorithm. While it is generally accepted that a photograph can be copyrighted, even one taken by an amateur like myself, because in pointing the camera, choosing the location, judging the light etc, I have made some creative choices even though all the heavy lifting was done by my phone camera, even this minimal degree of creativity does not exist with text prompted art.

However, while issues of authorship will continue to arise and be debated, the most serious current copyright challenge arising from AI relates to the widespread, unauthorized text and data mining (TDM) of copyrighted works. Massive amounts of data are required to feed the AI machines that produce AI-generated artworks through DALL-E 2, developed by OpenAI, or other similar programs such as Midjourney, Meta’s Make-a-Scene and Stability.AI’s open-source AI art generator, Stable Diffusion. (You can try it here, but please don’t input the name of any contemporary artists or artists whose work is still under copyright. Monet—see image on this blog post–died in 1926 and his works are in the public domain).

What is the data the AI machines ingest and process to create a work like the one at the top of this blog post? It is the work of artists; past artists like Michelangelo, Rembrandt, Monet and Van Gogh, all in the public domain, or Picasso or Dali, whose works are partially or not in the public domain, or contemporary living artists with unique styles, like Greg Rutkowski and others. Some 6 billion images were scraped from art sites and other depositories on the internet to create the data base. Rutkowksi is a contemporary Polish artist whose work has appeared in a number of video games. His art-style is notable for fire breathing dragons on eerie futuristic landscapes. As outlined by an article in the MIT Technology Review, his distinctive style is now one of the most commonly used prompts for AI generated art, but this is not necessarily to his benefit. Type “Rutkowksi” into a search engine and you are as likely to get an AI-generated clone of Rutkowski’s work as the genuine article. The AI generated images threaten to swamp his original work and open the very real possibility of being in competition with the original work of the artist. This has led Rutkowski to proclaim that AI should not be scraping and using the work of living artists.

Rutkowski does not appear to be against AI-generated art, but that does not extend to allowing his art to become the feeding ground to train algorithms. Other artists also have an ambivalent attitude to AI “art by numbers”. CBC interviewed a number of artists who saw programs like DALL-E 2 as a “tool” that they could use, although they recognized its shortcomings and challenges. Perhaps one way of differentiating attitudes to AI art is whether one is an established artist, whose work is being used to help generate the program, or an artist who enjoys using the tool to create new art forms and get noticed. Certainly not all the inputs are drawn from copyrighted works. One solution would be to limit the AI crawler to works that are in the public domain.

What can artists do to prevent their works from being used? Because the images are scraped from the internet, one solution is to insert watermarks since some of the web crawlers are programmed not to accept watermarked images. That does not, however, get around the issue that in many instances the AI platform is still violating copyright with impunity. Artists should not have to request that their art be removed from the crawler’s inventory (in any case, this seems to be almost impossible to do), nor should they be required to take defensive measures, or legal action. Lawsuits are almost certainly going to arise. In response, Getty Images, one of the leading providers of “stock images”, (art, designs, photos), has announced that it will not carry any AI generated art. What Getty provides to its subscribers is certainty that the images they are using are legally licensed. Getty has realized that with AI-generated art it may not be able to provide this certainty.

With the application of technology to information distribution and art, we have seen how the law of unintended consequences can prevail. Algorithms can be a useful tool to sort information and offer content to users according to their preferences, but they can also result in reinforcing the biases and intolerances of users, resulting in a closed-circuit echo chamber of hate and conspiracy theories. We have all seen how online discourse, potentially a positive tool to promote free expression and a wider exchange of views, can degenerate and slide into harassment and much worse. In the same vein, AI generated art presents a myriad of challenges in terms of people misusing the technology to create fake or offensive images, to distort artworks, hijack trademarks or a person’s image, etc. While some attempts have been made by the AI art platforms to deal with these problems by installing filters, we all know how ineffective automated filters have been in other online environments. However, while there has been some acknowledgement by the AI platforms that the form of content needs to be regulated to avoid abuse, there has been no self-restraint whatsoever when it comes to freely helping themselves to content owned by others—content protected by copyright–to feed the algorithm which produces work that will likely negatively affect the income prospects of the rights-holder.

In my view, this is the greatest threat that AI generated art imposes—the unrestricted data mining of protected content to produce derivative works that pose a very real threat of competing with the work of the original artist. It behooves all those who treasure creativity, and the protection afforded it through copyright to sound the alarm and push back.

This emerging challenge is enabled by a lax and permissive attitude to text and data mining, all in the name of supporting “innovation”. In the US, the proponents of this unrestricted data mining of copyrighted works for commercial purposes argue that it is “fair use”. Given that the end product scans the entire original copyrighted work and competes with and has a substantial negative effect on its commercial exploitation, it is highly questionable whether uses such as DALL-E 2 and others are fair use. This will surely be tested in court. In other countries, where there is a clear legal definition as to what constitutes a user exception to copyright, there is either no exception for data mining or a very limited exception. However, there are pressures to throw the door more widely open, particularly in the UK, which would set a dangerous precedent. I will follow up on these developments in a subsequent blog.

© Hugh Stephens, 2022. All Rights Reserved.

Among the plethora of plurilateral trade agreements covering the Asia Pacific region and beyond—the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), the Regional Comprehensive Economic Partnership (RCEP), and the Pacific Alliance—there is yet another— one you may not have heard of. The DEPA. (Digital Economy Partnership Agreement). What is the DEPA, and who is in it? And how does it relate to those interested or invested in copyright and intellectual property issues? Let’s take a “DEPA dive” (groan) and find out.

DEPA’s current membership includes just Chile, Singapore and New Zealand, the founding members. These are the same three countries that came together to create the forerunner to the Trans-Pacific Partnership (TPP), now the CPTPP. It came into force on January 7, 2021. South Korea, Canada and China have indicated interest in joining and in May of this year, Canada formally requested to become a DEPA Party, following public consultations in the spring of 2021. There were calls from think-tanks for Canada to take the initiative to join the Agreement, an application now in process . There have also been calls in the United States for the US to join DEPA.

DEPA is not the sole “digital only” trade agreement in existence; Singapore has signed digital agreements with several countries and the US and Japan reached a Digital Trade Agreement (DTA) in 2019. Much of what is in the DEPA, and the US-Japan DTA, is based on the ecommerce and digital trade chapters of the CPTPP but it goes further in some areas, and not as far in others. Notably, the DEPA departs from the standard text of most trade agreements, and from the US-Japan DTA, when it comes to intellectual property, a potential problem for content industries.

There are some important elements to the DEPA, outlined in detail by two researchers at Canada’s Centre for International Governance Innovation (CIGI), Dan Cuiriak and Robert Fay. The agreement is different from most traditional trade agreements in that it does not include a long list of items on which tariffs will be reduced or removed. It is a sectoral agreement including just 16 “modules” (chapters) and 4 annexes. It is designed to be a framework that can be built on and added to.  It covers a range of digital issues, from paperless trading, electronic invoicing, and electronic payments to treatment of digital products (where it entrenches the WTO moratorium on customs duties on electronic transmissions and content transmitted electronically) and provides for the non-discriminatory treatment of digital products, with a specific exception for “broadcasting”. There are also other general exceptions such as national security, public health and safety. It provides for privacy of personal information, cross-border data flows and agreement not to require data localization as a condition of doing business. In addition, the agreement has provisions for cybersecurity cooperation, building consumer trust (controlling unsolicited electronic messages directed at consumers) and protecting consumers from fraudulent activities. It ventures into new ground in terms of outlining principles for cooperation in emerging trends and technologies, identifying fintech, and artificial intelligence (AI) in particular as areas for further work and collaboration. The digital economy’s impact on competition policy and government procurement is also recognized, but in all these emerging areas, there are no binding commitments, simply “best efforts” language to promote cooperation.

Intellectual Property

Where the DEPA falls short, and takes an odd diversion, is in the area of intellectual property. First, unlike most digital trade chapters in broader agreements and the US-Japan sectoral DTA, there is no mention of prohibiting the forced disclosure of source code as a condition for the import, distribution, sale, or use of software, or of products containing software, a key IP issue. In Module 9 (Innovation and the Digital Economy), there a provision, Article 9.3, titled Public Domain;

”1. The Parties recognise the importance of a rich and accessible public domain.

2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.”

While the objectives of this module “affirm the importance of technological innovation, creativity, and the transfer and dissemination of technology, being for the mutual advantage of producers and users of knowledge, as a means to achieve social and economic welfare” (emphasis added), the text of the Agreement focuses on only one element of intellectual property, the existence of the public domain once IP rights are exhausted.

Is the public domain under threat? Not to my knowledge. While the public domain is important, so too is protection for rights-holders, but you would not know it given the language of the DEPA. Access to data for development of AI is a key component of innovation but that doesn’t mean that the rights of those holding the data are to be trampled and ignored. Proprietary data is not “free for the taking” in the name of the development of AI.

Another problem arises from this Public Domain Article. The wording in Article 9.3.2 stresses the importance of publicly accessible databases to assist in identification of subject matter that is in the public domain. However, at least with respect to copyright, to my knowledge no such databases exist, at, or if they exist, they exist in a very incomplete form. A cardinal principle of the Berne Convention is that copyright is established, if all conditions are met, without any registration formalities. For copyright, Article 9.3.2 makes no sense. The intent of the Article seems to be to stand IP protection on its head and focus instead on what is not protected. (However, perhaps the intent is to suggest that only public domain materials should be used to feed the need for “open data” for the purposes of innovation?)

This article is drawn from the original text of the TPP (Article 18.15), which was I suppose inserted to “balance” the rest of the IP chapter, but standing alone as it does in the DEPA, it seems to stick out like a sore thumb.

Platform Responsibility

While protection of intellectual property, or lack of it, is a failing of the DEPA, even the US-Japan DTA gives short shrift to IP concerns, other than inclusion of commitments not to force disclosure of source codes, and exclusion of IP rights from the infamous “interactive computer services” provision, language that is also incorporated into the USMCA with Canada and Mexico. This “interactive computer services” provision, Article 18.2 of the US-Japan DTA, is based on Section 230 of the 1996 US Communications Decency Act, the legislation that has been used by internet platforms to avoid any civil liability for material distributed by them on their platforms, unless they have directly created it. It has been misused by the platforms, enabling them to evade any responsibility for content moderation, notwithstanding clear precedents that exist in the offline world. Silicon Valley has tried (unsuccessfully to this point) to export this legislation through trade agreements signed by the US.

It was a controversial provision when pushed by the US government in the NAFTA renegotiation. Congress finally objected at the last minute but by then, the deal was virtually done with the concrete hardening fast. As a result, the Section 230-like provision stayed in the USMCA (as Article 19.17) although Canada managed to negotiate a qualification to the commitment that an “interactive computer service” not be considered as an “information content provider”. The qualification, contained in a footnote to the Agreement, allows existing Canadian law and precedent to continue to apply and confirms that no change is required to Canadian law. In effect, this avoided the worst-case scenario of having a Section 230-type obligation crammed down Canada’s throat.

The Japanese were equally alert to the dangers of adopting Section 230-like obligations, which would have given platforms in Japan a free ride with respect to responsibility for the material they carry, distribute and monetize. Japan included the same caveat with respect to the application of existing Japanese law (Footnote 15) but went a step further and signed a side letter with the US. This side letter renders the commitment meaningless but such a provision should not have been included in a trade agreement in the first place.

Other topical digital issues in the DEPA relate to online safety and measures to implement cultural policies in the digital environment. The online safety module is weak, noting that Parties recognize the importance of taking a multi-stakeholder approach to addressing online safety and security issues, but requiring no more than efforts (“shall endeavour”) to cooperate to advance collaborative solutions.

Culture and the Arts in the Digital Environment

With respect to cultural carve outs, broadcasting is exempted from the commitments on non-discriminatory treatment of digital products, but no definition of broadcasting is provided. Canada is currently in the process of enacting legislation (Bill C-11, the Online Streaming Act) that will define online streaming services as broadcasting, an action that could be an issue during DEPA accession negotiations. When negotiating trade commitments, Canada also likes to seek a general “cultural exemption” as it did in the original Canada-US FTA, replicated in the NAFTA and its successor, USMCA/CUSMA. (The exemption of cultural industries from the disciplines of the USMCA/CUSMA is, however, subject to the right of the other Parties to take retaliatory measures of equivalent effect). In both its trade agreement with the EU and in the TPP (and its successor, the CPTPP) Canada was unable to achieve an overriding cultural carve out and instead took chapter-by-chapter exceptions. The DEPA contains a general exception for measures affecting culture, subject to the proviso that they do not constitute disguised restrictions on trade; (Article 15.1.4)

“subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by a Party of measures necessary to protect national treasures or specific sites of historical or archaeological value, or to support creative arts of national value.”(emphasis added)

“Creative arts of national value” are defined as;

“the performing arts – including theatre, dance and music – visual arts and craft, literature, film and video, language arts, creative online content, indigenous traditional practice and contemporary cultural expression, and digital interactive media and hybrid art work, including those that use new technologies to transcend discrete art form divisions. The term encompasses those activities involved in the presentation, execution and interpretation of the arts; and the study and technical development of these art forms and activities.” (Footnote 21)

That is a broad exemption that would probably not rule out enactment of legislation like the Online Streaming Act, although whether the measures proposed by the legislation fall under the rubric of “support” (for creative arts) or “discrimination” (between the Parties) would keep trade lawyers busy. A Canadian cultural advocacy group, the Coalition for the Diversity of Cultural Expression (CDCE), submitted a brief to the DEPA consultation that, among other things, criticized the DEPA’s cultural exception clause as inadequate from a Canadian perspective.

Interestingly, having submitted its bid to join the DEPA in May of this year, several months later (July 15, 2022) the Canadian government launched public consultations on a model digital trade agreement. It seems to me it would have been more logical to take this step prior to throwing Canada’s hat into the DEPA ring rather than after, but given that the DEPA is subject to change and can be amended as new Parties join, it will still be useful to obtain input to help develop negotiating objectives.

The CDCE once again provided input, recommending not only that a model digital trade agreement contain a broad cultural exemption clause but also that;

“any Canadian model digital trade agreement…not create barriers to the implementation of digital rights management tools, or technological protection measures, that could block the free flow of digital products to protect copyright”,

and that;

“Canada should not make commitments under any Canadian model digital trade agreement that could adversely affect the remuneration of copyright holders”.

This is one area where the DEPA falls short and is one of its biggest failings. The drafters of the Agreement seem to have had a deliberate aversion to including any reference to “intellectual property”[i] in the text. In fact, they seem to have gone out of their way to avoid any recognition of the importance of IP–thus, the “standalone” article on the importance of the public domain–reflecting a bias seemingly and incorrectly seeing IP and copyright as antithetical to digital innovation.

Will the US Join DEPA?

It is unlikely that the US will join DEPA as it has already floated ideas for its own Indo-Pacific Digital Agreement as part of its proposed Indo-Pacific Economic Framework (IPEF). Since Canada is not included in the US definition of Indo-Pacific that may explain in part why Canada has stepped up its interest in DEPA. It is likely that a US-led digital initiative will put greater emphasis on IP rights within a digital environment and avoid the public domain focussed language of the DEPA. The Indo-Pacific Digital Agreement (if it ever gets off the ground) and the DEPA could even merge one day. One thing is certain; digital trade is here to stay, and it is important to forge international understandings governing this trade. The DEPA offers one path forward, albeit a path that could do more to respect IP rights. Just the same, it is a modest but useful beginning.

© Hugh Stephens 2022. All Rights Reserved.

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[i] The only reference I could find to “intellectual property” in the entire agreement was with respect to Article 3.3.(1) relating to Non-Discriminatory Treatment of Digital Products. Article 3.3 (2) says,
“Paragraph 1 shall not apply to the extent of any inconsistency with a Party’s rights and obligations concerning intellectual property contained in another international agreement a Party is party to.”