Author: hughstephensblog

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

India’s Intrusive and Overkill Tobacco Warnings for Streaming Film Content

Image: Shutterstock

The issue of how to handle smoking in films continues to be a real hot potato in many countries. As the film industry focuses on its responsibility to clearly label content that depicts smoking while avoiding any promotion of smoking in films, health authorities—in their understandable desire to curtail tobacco consumption—sometimes overzealously impose unrealistic conditions in pursuit of public health ends. It can be tricky to strike the right balance, ensuring that smoking is not promoted in films while avoiding undue censorship where some depiction of smoking is a necessary part of the storytelling. Likewise, anti-smoking warnings are a legitimate requirement—unless they are enforced through unrealistic regulations that not only interrupt the flow of a plot but require bespoke country-by-country editing to insert warnings into the narrative of the film. Saying this, I am fully aware that the tobacco industry will do just about anything to promote smoking and try to gain new consumers for its noxious products. (The marketing of candy flavoured nicotine packs in corner stores near schools in some countries is a good example, if one was needed). Various countries are grappling with this dilemma; protecting public health while ensuring that health regulations don’t inflict unintended collateral damage. India is no exception.

The current controversy in India is about new draft anti-smoking regulations for film content announced by the Ministry of Health and Family Welfare in September. The new regulations would require that online streaming services (Video on Demand), or what is known as “online curated content” (OCC) in India (think Netflix, Hotstar, Amazon Prime, SonyLIV etc), display 30 second non-skippable anti-smoking health spots at the start of—and in the middle of—any film that depicts smoking. In seeking to impose these requirements in such a heavy-handed and frankly unrealistic way, the Health Ministry managed to step clumsily on the toes of the Ministry of Information and Broadcasting (MIB), which is responsible for regulation of broadcasting. The mandatory insertion of health spots like this is both unnecessary and impractical, apart from being a questionable intrusion into MIB’s domain.

In addition to the requirement for tobacco warning spots at the beginning and midway point of films where smoking takes place, Indian media reports the regulations also require the insertion of a 20 second audio-visual disclaimer notice warning about the dangers of tobacco use, to be displayed before the film rolls. In scenes where smoking or tobacco consumption is depicted, static anti-tobacco warnings must be displayed throughout. This is a classic case of repetitive overkill. The editing and physical requirements to insert all these warning into the streaming content is no small matter. Existing global catalogue will need to be reviewed and re-edited if the content is to be shown in India. Of course nothing is impossible, even if impractical, but the result will likely be that if the insertion requirement is maintained, many films will not be shown in India. The cost of compliance will be just too great to justify the benefit of providing that particular film. Responsible members of the Indian viewing public will be the losers; others will resort to accessing pirated content to view the movies they want to see. Piracy in India is already a major issue. This proposal has the potential to supercharge it.

This sledgehammer approach is excessive and certainly not needed. Films on OCC platforms already contain warnings about depiction of smoking (as well as other relevant warnings regarding the nature of the content to be shown). Moreover, online curated content (OCC) is different from content broadcast over-the-air or distributed by cable or satellite. It is “on demand” content that is “pulled” by viewers from a menu rather than being “pushed” by broadcasters. As a result, there is a much greater element of choice and judgement on the part of the consumer. No one is going to be surprised by accidentally tripping over a film where the heroine lights up a fag or the erudite detective puffs away on a pipe. Nor is this likely to make them rush out and stock up on bidis. Viewers know in advance what they are going to watch and choose appropriately labelled and classified content accordingly.

Indeed, the “rub your nose in it” repetitive flashing of anti-smoking warnings runs the risk of turning off OCC consumers, who will tune out messages of this nature as they find themselves constantly bombarded with anti-smoking messages as they scroll for what they want to watch. For customers who routinely browse content across several streaming platforms to find their viewing preference, this could well turn them off the streaming experience altogether, just as streaming is starting to get traction in India. It is far better to deliver the message through categorization and clear labelling of content so that viewers are aware of what they will be exposed to—and are prepared to make judgements accordingly.

There is no question that smoking needs to be combatted, and that India has a smoking problem. A 2015 study identified India as the world’s second largest market for tobacco products (after China) with a smoking rate of 48% among males and 20% among females. India has already taken steps to address this problem. It was one of the first countries to ratify the World Health Organization’s Framework Convention on Tobacco Control, in 2003.

The Convention calls for a range of measures to combat smoking, including prohibiting advertising for tobacco products that is false, misleading, or deceptive and by requiring health warnings on tobacco advertising, promotion and sponsorships. It also requires restrictions on incentives to purchase tobacco and prohibition, if legally possible, of tobacco sponsorship of international events and activities. Guidelines attached to the Framework Convention suggest the elements of a comprehensive ban on tobacco advertising should include “implementing a ratings or classification system that takes tobacco depictions into account.” That is what international streamers and OCC providers in India are committed to and already provide.

Indian consumers of streaming entertainment content need to be treated as adults who, having been notified of what they are about to watch, can make informed judgements without having their viewing experience interrupted with audio visual inserts before and during the film while static messages distract their attention. There is no need for the Health Ministry to drag out its big cannons to blow holes into carefully curated and suitably labelled content, trampling on the jurisdiction of the Ministry of record in the process while creating havoc in the film industry to the detriment of creators and viewers alike. By all means combat the public health scourge of smoking, but do it in a responsible, proportionate and balanced way.

© Hugh Stephens, 2024. All Rights Reserved.

Another AI Scraping Copyright Case in Canada: News Media Companies Sue OpenAI

Image: Shutterstock (AI assisted)

First, I heard it on the radio. The word “copyright” caught my attention because that’s a word seldom heard on the morning news. Then the news stories started to appear, first on Canadian Press, which was “largely” accurate, then on the CBC, Globe and Mail, even the New York Times. A consortium of Canadian media, including the Toronto Star, Postmedia, the Globe and Mail and the CBC/Radio-Canada is suing OpenAI in Ontario Superior Court for copyright infringement and for violating their Terms of Use. The publishers are seeking CAD20,000 per infringement plus an injunction to prevent further infringement. The case largely parallels a similar one in the US brought by the New York Times against OpenAI and its largest investor Microsoft, which I wrote about earlier this year (When Giants Wrestle, the Earth Moves (NYT v OpenAI/Microsoft).

Despite what the press articles state, this is not the first case in Canada where copyright infringement has been alleged as a result of data being scraped to use in AI applications, as I noted last week. However, it is the first case where news organizations have gone after an AI development company. It also has nothing to do with the Online News Act as stated in the Canadian Press report. In fact, it is the absence of legislation in Canada regarding copyright and AI that is partly responsible for this being fought out in the courts.

OpenAI in its statement quoted “fair use” and “related international copyright principles” to justify its behaviour. The fact that the US fair use doctrine does not apply in Canada, combined with the closed nature of fair dealing exceptions, and the lack of a Text and Data Mining exception in Canadian law, could prove troublesome for OpenAI. It also has the effrontery to state that it offers “opt out” options for news publishers. When you are taking someone’s proprietorial content without permission or payment, it is an insult to tell them they can always opt out. To steal, and then to tell your victim to request that you not steal again, is hardly the way ethical companies operate.

One question to be decided is whether the scraped content falls under copyright as it is a well-established principle that the “news of the day” is not subject to copyright protection. See (Do News Publishers “Own” the News?) News media may not have a monopoly over reporting on what is happening in, say, Gaza but they certainly have the rights to their expression of what is happening through their coverage. OpenAI has also apparently said that its web crawlers are just “reading” publicly available material, as a human being would do. However, reading and copying are two different things, although proving reproduction may be difficult given the unwillingness of OpenAI to disclose its training methods, an issue that has come up in the New York Times case. “Publicly available” is irrelevant, since being publicly available on the internet, or in a library, or anywhere else, does not justify copyright infringement.

In their suit, the plaintiffs are also alleging circumvention of a TPM (technological protection measure, sometimes referred to as a digital lock, which puts content behind a paywall). This is a separate violation of the Copyright Act. In addition, they are alleging violation of their Terms of Use, which are linked to their websites. When a user accesses material on the publishers’ websites, they must agree to the Terms of Use which, among other things, state that the content to be accessed is for the “personal, non-commercial use of individual users only, and may not be reproduced or used other than as permitted under the Terms of Use”, unless consent is given.

The publishers state that OpenAI was well aware of the need to pay for their content and to obtain permission to use it. That is essentially the position also taken by the New York Times. OpenAI has reached licensing agreements with some publishers including the Associated Press, Axel Springer (Business Insider, Politico), the Financial Times, the publishers of People, Better Homes and Gardens and other titles, News Corp (Wall Street Journal and many others), The Atlantic, and others. But not the New York Times obviously (negotiations broke down, leading to the current lawsuit) and not with any of the Canadian media bringing suit. A licensing agreement acceptable to both parties will be the likely outcome of this case. As the US-based Copyright Alliance has pointed out, generative AI licensing isn’t just possible, it’s essential.

There is a vacuum when it comes to legislation in Canada, and elsewhere, regarding the intersection of copyright and AI development. Various models are being experimented with, from the “throw copyright under the bus” model in Singapore to a more nuanced model in Japan, to uncertainty elsewhere. Australia has just produced a Senate report in response to its public consultation on the issue. Among its recommendatons, the Select Committee Report on Adopting Artificial Intelligence called for changes that would ensure copyright holders are compensated for use of their material, while tech firms would be forced to reveal what copyrighted works they used to train their AI models. Canada initiated a public consultation on the topic last year and the Australian Committee’s recommendations with respect to copyrighted content are essentially what the Canadian copyright community asked for. However, since receiving input in January of this year and publishing the submissions received in June, there has been no further information released by the Canadian government. A conclusion similar to the recommendations in Australia would be welcome.

Canadian creators and rightsholders are waiting for some action. Meanwhile the only alternative is to toss the issue to the courts to adjudicate.

(c) Hugh Stephens, 2024. All Rights Reserved.

AI-Scraping Copyright Litigation Comes to Canada (CANLII v Caseway AI)

Image: Shutterstock (with AI assist)

It was inevitable. After all the lawsuits in the US (and some in the UK) pitting various copyright holders against AI development companies alleging the AI platforms were infringing copyright by reproducing and ingesting copyrighted materials without authorization to train their algorithms to produce outputs based on the ingested content–outputs that in some cases compete directly with the original work—AI scraping litigation has finally come to Canada. As reported by the CBC, CanLII (the Canadian Legal Information Institute), a non-profit established in 2001 by the Federation of Law Societies of Canada “to provide efficient and open online access to judicial decisions and legislative documents” is suing Caseway AI, a self described AI-driven legal research service, for copyright infringement and for violating CanLII’s Terms of Use through a massive downloading of 3.5 million files.

In its civil claim brought before the Supreme Court of British Columbia, CanLII alleges that the defendants, doing business as Caseway AI, violated its Terms of Use that prohibit bulk or systematic download of CanLII material and that in doing so, the defendants also engaged in copyright infringement by reproducing, publishing and creating a derivative work based on the copied works for the defendants own commercial purposes. There is no question that Caseway is providing legal material for commercial gain. Caseway’s services start at $49.99 a month , or $499.99 a year, and offer an AI driven service that “leverages advanced AI to find relevant case law in less than a minute… Designed with a user-friendly chatbot interface powered by proprietary technology, Caseway (is) a robust tool tailored specifically for the legal profession.” Caseway’s Terms of Service have all sorts of disclaimers, however.

In his defence, Caseway’s Canadian principal (and defendant) Alistair Vigier is reported to have said that “court documents are public record, not owned by any organization, including CanLII. Numerous other websites also make these decisions available.” It is true that court documents and decisions are public documents not subject to copyright protection. However, CanLII claims that its database contains more than just the court’s decisions. It says in its claim that it spends significant time to “review, analyze, curate, aggregate, catalogue, annotate, index and otherwise enhance the data” prior to publication. It is this creative effort that turns public documents into a copyright protected document (or so the argument goes). To use another copyright analogy, you cannot copyright a recipe (a “list of ingredients”) but we all know that cookbooks containing recipes are always copyrighted. This is because of the display and illustrations of the recipes, the layout, commentary and other editorial touches. Julia Child’s sole amandine recipe is not just any old recipe for fried sole. Is CanLII’s compilation of “judicial ingredients” protectable? We will have to wait to find out.

CanLII’s case is reminiscent of a similar case in the US, Thomson Reuters v Ross Intelligence. Thomson Reuters operates a subscription-based legal research service called Westlaw. One of Westlaw’s employees allegedly copied Westlaw content to enable Ross Intelligence to build a machine learning platform that competed with Westlaw. Part of Ross’ defence was that the judicial decisions themselves are public domain documents, so there could be no infringement. Westlaw maintained that its case head notes, summaries that described the cases, were copyrightable material. Ross also brought forward a fair use defence arguing transformation, i.e. they had produced something new and different that did not compete directly with Westlaw’s product. Here is a good summary of the case. The court determined that Ross had copied the headnotes but the copyrightability of Westlaw’s numbering system and headnotes needed to go to a jury to determine. While Ross’ anti-trust case against Westlaw has been dismissed, the copyright case is still pending.

Another case that has been cited as a possible precedent is the famous 2004 CCH Canadian Ltd v Law Society of Upper Canada case in which the Supreme Court of Canada ruled that copies of CCH materials made by the Law Society library for its members did not infringe CCH’s copyright because the library was exercising the fair dealing research exception on behalf of the individuals requesting the copies. I personally don’t see the relevance of this case (but I am not a lawyer) since the Great Library’s users were copying only relevant parts of certain documents, for a specified fair dealing purpose. In the CanLII case, Caseway has apparently inhaled the full collection of documents and is doing so for a commercial purpose, with the resultant product (although not identical to the original) competing with it. Moreover, since there is no text and data mining exception in Canadian law, the “transformation” defences available to US-based AI companies (i.e transforming the original materials to produce something different) are not applicable in Canada. This will be an interesting one for the lawyers.

What the case demonstrates is a crying need for some legislative guidance on the question of AI scraping of copyrighted materials in Canada. It may be that CanLII’s collection cannot be protected by copyright, which would provide Caseway a defence without settling the fundamental issue of whether it is a violation of the Copyright Act to do what Caseway did, assuming the material they used was protectable by copyright. A consultation exercise was launched by the government of Canada (through the Ministry of Innovation, Science and Economic Development, ISED) last October, closing in January with submissions posted in June. Since then, there has been silence on the part of the government. With Parliament at a standstill, and the current government hanging on to power by its fingernails, don’t expect clarity any time soon.

© Hugh Stephens, 2024. All Rights Reserved

Canadian Copyright Registration and AI-Created Works: It’s Time to Close the Loophole

Image: Shutterstock

In July, the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa filed an application in the Federal Court to expunge or amend a Canadian copyright registration that claimed an AI program, the RAGHAV AI Painting App, as co-author of a registered work. While the other co-author, an Indian IP lawyer by the name of Ankit Sahni is named as the respondent, the real defendant ought to be the Canadian Intellectual Property Office (CIPO), the organ within the Department of Industry (ISED) responsible for managing copyright registration. It is CIPO’s “rubber stamp, content-blind, absence of judgement” automated system of registration that has led to this situation, putting Canada in a significantly different place from that of the United States or many other countries when it comes to granting copyright protection to works produced by AI algorithms with no or little human intervention.

Last month I wrote a couple of blog posts on the issue of whether content produced with or by generative AI could or should qualify for copyright protection. I looked at the ongoing uphill struggle that two “creators”, Stephen Thaler and Jason Allen, have experienced with the US Copyright Office (USCO) in their attempts to get the USCO to register their works. Thaler claims his submitted work (“A Recent Entrance to Paradise”) was created exclusively by his AI algorithm (the “Creativity Machine”) and, accordingly, it should be recognized as the “author”. However, as the human behind the machine, having invested in creating it, the benefits of the registration should fall to him. He argues that the algorithm carried out the work at his behest, much like a work for hire. Allen, by contrast, claims that although his award-winning work (“Théâtre D’Opéra Spatial) was produced with AI assists, he was the creator through control and manipulation of the prompt process. In neither case has the USCO budged from its position that the works do not qualify for copyright protection on the basis they were not human-created. The same goes for the courts to which the USCO’s rejection has been appealed.

That is the current situation in the US; in Canada it is quite different. Works produced exclusively with AI have been accorded copyright registration, more than once. I have even done it myself! (See “Canadian Copyright Registration for my 100 Percent AI-Generated Work”).

Because Canadian copyright registration is automated and done through a website, an applicant must provide the author’s address, contact details and date of death, if deceased. To work around that, I clearly specified that the work was created entirely by two AI programs (DALL E-2 and CHAT-GPT) with virtually no exercise of “skill and judgement” on my part, this supposedly being the threshold in Canada for creative content that can be afforded copyright protection.

This is how my Canadian copyright certificate No. 1201819, issued April 11, 2023 (I should have tried to register it on April Fools Day), reads in terms of describing the registered work;

“SUNSET SERENITY, BEING AN IMAGE AND POEM ABOUT SUNSET AT AN ONTARIO LAKE CREATED ENTIRELY BY AI PROGRAMS DALL-E2 AND CHATGPT (POEM) ON THE BASIS OF PROMPTS DEMONSTRATING MINIMAL SKILL AND JUDGEMENT ON THE PART OF THE HUMAN AUTHOR CLAIMING COPYRIGHT”.

While this little exercise in inanity was fun, (and was done to expose the failings of the current system), I was not the first to register an AI created work in Canada. That honour, as far as I can tell, belongs to Sahni, the named respondent in the CIPPIC case who, in December 2021, managed to register the artistic work Suryast, listing the AI-powered RAGHAV painting app as co-author. That was a neat way of getting around the requirement to provide an address, contact details etc. Sahni could provide his contact details yet still claim the AI algorithm was an author, even if a co-author. Clever. What Sahni’s motivation was I cannot say, but apparently he has been active in registering the work in as many jurisdictions as he can, maybe to boost the marketability of RAHGHAV. CIPPIC claims he is seeking registration to force various countries to address the AI authorship issue. Canada must have been one of the easiest registrations he received. Now he is being called to account. The application brought by CIPPIC seeks a declaration either that there is no copyright in Sahni’s image, Suryast, or, alternatively, if there is copyright in Suryast, that the Respondent (Sahni) is it sole author. It also seeks an order to expunge the copyright certificate in question or to rectify it by deleting the painting app as a co-author.

The fundamental problem of course is not Sahni or his AI app, (although like me, he may have been mischievous) but rather the way in which copyright registration is offered and maintained in Canada. It was not always this way. Once upon a time, to register a work in Canada you were required to not only pay a registration fee, (which is still the case today) but submit three copies of the work, one for the Copyright Branch (which was part of the Department of Agriculture), one for the Canadian Parliamentary Library and one for the British Museum. Because of these depository requirements, today we have a record of many early copyrighted works in Canada, such as the famous early 20th Century Inuit photographs of Canada’s first professional female photographer, Geraldine Moodie, about whom I wrote a few years ago (“Geraldine Moodie and her Pioneering Photographs: A Piece of Canada’s Copyright History”).

When the first international copyright convention, the Berne Convention of 1886, was established among a limited number of countries, there was a push by authors to abolish the registration requirement because it was burdensome to have to register in all Berne countries. Initially, registration in the home country was supposed to provide protection in all member states of the Convention, but this proved difficult to put into practice. Consequently, in 1908 at the Berlin revision of the Convention, the following provision (which is today part of Article 5(2) was adopted, “The enjoyment and the exercise of these rights shall not be subject to any formality”. Canada was a member of Berne because Britain had acceded, but was nonetheless a reluctant conscript (even though then PM Sir John A. Macdonald had acquiesced to Canada’s inclusion). In 1921 Canada finally passed its own Copyright Act (coming into force in 1924, a century ago this year), and subsequently joined Berne in its own right in 1928. I suspect that registration as a requirement, along with depository and examination conditions, was dropped at that time. That is probably when the current (but non-automated) voluntary registration process was established.

Certainly such a system was in place in the early 1950s when broadcaster Gil Seabrook of Vernon, BC registered an “untitled and unpublished artistic work” entitled “Ogopogo”. The registration of that undocumented work became the source of the urban myth that the City of Vernon owned the intellectual property rights to the mythical lake monster Ogopogo (Seabrook had donated his copyright to the City in an attempt to upstage Vernon’s rival town to the south, Kelowna, that claimed it was the “home of Ogopogo”). As a result, in 2022 Vernon Council went to great lengths to “return” the rights to Ogopogo to the local First Nation as an act of “reconciliation”. Of course, they never had the rights to Ogopogo in the first place. If you want more information, you can read all about it here. (“Copyrighting the Ogopogo: The © Story Behind the News Story”).

Despite the abolition of a registration requirement by Berne Convention countries, Canada is not the only country that maintains one. In the US, which only joined Berne in 1989, both registration and renewal were required for a work to enjoy copyright protection. When the US joined Berne, it maintained the registration requirement for US citizens who wished to take legal action to enforce their copyright. This is allowed under Berne. As such, the US has maintained a robust registration system where a legal deposit of the work is required, registrations are examined and can be challenged or refused.

We know that is not the case in Canada, but Canada is not the only country to have a voluntary registration system. In a recent study by WIPO (World Intellectual Property Organization), some 95 countries were identified as having either a voluntary registration system, a recordation system (for transfer of copyrights) or a legal deposit requirement. What is notable, however, is that of all these countries, only three (Canada, Japan and Madagascar) do not require a deposit of the work seeking registration. Canada does review applications but only to ensure they meet all the formality requirements (name and address of the owner of the copyright; a declaration that the applicant is the author, owner of the copyright or an assignee; the category of the work; its title; name of the author and, if dead, the date of the author’s death, if known. For a published work, the date and place of first publication must be provided and, perhaps most important, payment of the prescribed fee). Nothing else. In fact, if Mr. Mickey Mouse, address Disneyland Way, filed a copyright application for a work and paid the required fee of $63, I am sure a Canadian copyright certificate would be issued. It used to come in the mail, printed on nice quality paper but, alas, in the interests of efficiency, it is now only available in PDF format on CIPO’s website. Print it yourself.

That is the current situation, but why has CIPPIC gone to the Federal Court to dispute the wording of Sahni’s copyright certificate, No. 1188619? While the Registrar of Copyrights can accept requests for correction of a copyright certificate (either because of an error in filing or because the Office itself made a mistake), it cannot by itself amend or remove a registered work from the Register. Instead, the Registrar needs the Federal Court to effect such action. Section 57 of the Copyright Act states, with respect to Rectification of Register by the Court;

(4) The Federal Court may, on application of the Registrar of Copyrights or of any interested person, order the rectification of the Register of Copyrights by
(a) the making of any entry wrongly omitted to be made in the Register,
(b) the expunging of any entry wrongly made in or remaining on the Register, or
(c) the correction of any error or defect in the Register

However , while CIPPIC is seeking expungement of this particular copyright registration, it is the system it is really going after. This is clear from its memorial to the Court;

(23) “In automating its copyright registration process, CIPO is derogating from its obligations to administer copyright in a fair and balanced manner under the Copyright Act.”
(24) “The consequence of this system is that content that does not merit copyright can…easily obtain the benefits of registration.”
(25) “Copyright registrants obtain certain benefits under the Act – such as litigation presumptions – and users and defendants are correspondingly burdened. Once a “work” is registered, the Copyright Act…shifts certain presumptions such as subsistence and ownership….In this very case, as a result of CIPO’s oversight failures, the burden rests on CIPPIC to prove the image Suryast lacks originality and that an AI program cannot be an author.”

Moreover, CIPPIC notes that it brought this case to the attention of CIPO but it refused to correct the Copyright Register, instead encouraging CIPPIC to seek resolution in court. Assuming it is granted standing, CIPPIC may well prevail and have the Suryast registration amended or expunged. But will that really achieve its goals? If its goals are to get CIPO to stop “derogating from its obligations”, then simply cancelling or amending this one registration won’t do it. What is the solution?

One option would be to eliminate the voluntary registration requirement altogether, but is this the right course of action? The WIPO document referenced earlier points out some of the advantages of a voluntary registration system. It can ensure that information about authorship and copyright, including date of registration, become publicly available. This benefits not only authors and rightsholders, who can use the registration as a rebuttable presumption of copyright in court, as in Canada, but also provides information to the public to verify ownership claims and trace title. A voluntary system does not, however, provide a definitive list of what works are under copyright and which are not. Another factor is that an automated voluntary system, such as the one operated by CIPO, is not burdensome for registrants and presents no meaningful obstacle. The problem is that its barriers to registration are so low that it is easy to trick the system. Is a Canadian copyright certificate worth the paper it is printed on if there is no verification?

A second option is to improve the registration process to make it meaningful, but this will require resources. Current fees are low (but the US system which is much more robust has a similar fee structure). Nonetheless, to institute a USCO type system would require substantial additional resources that are unlikely to be forthcoming in the present fiscal environment. One would have to ask whether the extra cost could be justified. It’s a conundrum. Meanwhile, the government has circulated a paper on the issue of Copyright and AI and the Canadian cultural community has weighed in with its views. Prominent among these is the position that copyright protection should be accorded only to human-created works. (This is not currently specified in the Copyright Act).

CIPPIC’s court action puts the spotlight on the current copyright dilemma. The current system seems to be not fit-for-purpose, but an economically viable alternative is not immediately apparent. At the very least, Canada should amend the Copyright Act to prevent AI-created works from obtaining copyright registration.

© Hugh Stephens, 2024. All Rights Reserved.

It’s a Copyright Violation, But Also Much Worse….Fraud, Negligence, and “Misappropriation of Personality”…Plus Being a Gross Insult to Anyone’s Intelligence: The Jagmeet Singh Fake Ads (There Oughta Be a Law!)

Image: Shutterstock

It is so ludicrous it’s hard to believe the ads—real ads but using a fake news story to promote a fraudulent product–appeared in mainstream media in Canada and elsewhere. But it happened. The Canadian Press has an in depth report about the ads that appeared in digital editions of such publications as the Toronto Star and Edmonton Journal claiming that NDP Leader and Member of Parliament Jagmeet Singh had a “fatal accident” while on live TV, inadvertently revealing a secret way of earning revenue during an interview with CTV’s Vassy Kapelos. The “fatal accident” appears to be the revelation of the secret rather than Singh’s demise. He is very alive and kicking. The supposed “accident” was clickbait for a cryptocurrency scam, an easy way of earning money that Singh allegedly knew about but the “authorities”, such as the Bank of Canada, didn’t want the public to have access to. What sheer and utter nonsense.

The doctored image was a clear violation of the copyright of the original broadcast, owned by Bell Media’s CTV. However, it is hard to believe that CTV will bother going after anyone for copyright infringement, although perhaps the perpetrator (no doubt a shell company) could be tracked down through Google, which facilitated the ads. Google, of course, claims that it is not responsible even though the ads violated its policy against impersonation of public figures. And it seems no one at the reputable media outlets where these scams were featured under their byline bothers to check ads like this. It is only after the fact, when they are made to look foolish, that they act to have them removed. They just collect the money from an ad placement firm.

It used to be that if an ad appeared in a major daily newspaper, there was some expectation of a degree of truth in advertising and an assumption that the paper would not allow itself to be a platform for fraudulent promotions. No more is this true, it seems. It’s all pretty distressing. It is also a wonder that such ads work, pulling in gullible people. If they didn’t work, the promoters would not be wasting their money promoting these scams.

Somewhere in the multilayered bureaucracy that comprises Canada, there must be some entity with the authority to try to stop this. The Canadian Anti-Fraud Centre, a body established in 1993 by the RCMP, OPP and Competition Bureau with a mandate to assist “Police of Jurisdiction” with enforcement and prevention efforts, would seem to be the place to start. But who are the Police of Jurisdiction for an online ad campaign that appeared in papers across the country and well as in UK and US outlets? The short answer is “nobody”. This is just one of thousands of such scams. Maybe the best the Anti-Fraud Centre can do is to raise awareness of such activities among the public. So, while it is a violation of copyright law, and no doubt fraud, there are other violations of the law—such as a hijacking of Singh’s image and personality–although in Canada the remedies are not easy to use.

In Canada, there is no general “right of publicity” or “personality right” that protects a person’s image, voice, etc, as exists in some US states. However, according to this law firm website there are publicity rights arising from provincial privacy legislation, in BC, Manitoba, Newfoundland and Saskatchewan, and elsewhere a common law civil remedy available on a limited basis. In common law there is a “common law tort of ‘wrongful appropriation of personality’, sometimes referred to as ‘misappropriation of personality’, being the unauthorised commercial exploitation of a person’s name, image, voice or likeness.” The right is enforced through civil litigation so Mr. Singh would have to bring suit against the shady operators of the crypto scam. That is not going to happen.

There is draft federal legislation in the US that, if passed, would deal with situations like this (should they occur in the United States). The NO-FAKES (Nurture Originals, Foster Art, and Keep Entertainment Safe) Act, 2024, is a bipartisan bill introduced into the US Senate in July of this year, after an earlier discussion draft was floated in 2023. If adopted, it would prevent the “production of a digital replica without consent of the applicable individual or rights holder” through civil law action unless part of a news, public affairs, sports broadcast, documentary, or biographical work. It includes exceptions for parodies, satire, and criticism (which are fair dealing exceptions in Canada and considered fair use in the US). In particular it is designed to protect both entertainment figures and political personalities from having their likenesses either manipulated (so that Taylor Swift didn’t really endorse Donald Trump) or used to endorse products or ideas they don’t support. A companion bill was introduced into the House of Representatives with bipartisan support shortly after. The bills were widely supported by major entertainment companies and unions (SAG-AFTRA) but also AI companies such as OpenAI. Apart from providing a civil remedy, it will require platforms to take down offending images upon notice with financial penalties if they do not comply.

According to one of the Members of Congress who introduced it, the NO FAKES Act will:

  • Recognize that every individual has a federal intellectual property right to their own voice and likeness—including an extension of that right for the families of individuals after they pass away;
  • Empower individuals to take action against bad actors who knowingly create, post, or profit from unauthorized digital copies of them;
  • Protect responsible media platforms from liability if they take down offending materials when they discover them;
  • Ensure innovation and free speech are protected; and
  • Provide a nationwide solution to a patchwork of state laws and regulations by January 2, 2025.

Many US states have versions of a right of personality law. If passed, the NO FAKES Act will pre-empt any relevant state legislation, unless in force prior to January 2, 2025. The proposed federal legislation creates the new national publicity right as an intellectual property right, which gives it an exemption from the notorious Section 230 immunity in US law that allows platforms to ignore virtually any requirement to regulate content posted on their platforms by users. The application of the Act to the platforms (i.e. a take-down requirement), including potential removal of the Section 230 immunity for hosting digital fakes (when the platform has knowledge, usually through a takedown notice) has brought out the usual Silicon Valley suspects (EFF, Public Knowledge, CCIA etc.) to oppose the legislation. They argue that it impinges on free speech, is too blunt a weapon, and so on. In my view, a major reason for their opposition is that it would require the big internet platforms to actually take some responsibility for the content they profit from disseminating.

The ridiculous Singh “newscast ad” highlights a significant loophole in Canadian law. It is much more than a copyright violation. Even though it would be difficult to track down the perpetrators, why aren’t there stronger legal penalties for such actions, as well as liability for failing to assume responsibility for hosting obvious and known fakes? Why isn’t there an obligation on platforms and media to remove fake content that hijacks the personality of a well-known person? The US is trying to grapple with the problem, although whether the NO FAKES Act will be enacted during the current lame duck session of Congress is doubtful given Silicon Valley’s mobilization against it, plus all the other pressing business that Congress will have to deal with (like funding the government) in the few weeks that remain.  

Misappropriation of the  image and voice of well-known personalities, and a proliferation of AI generated fakes, can be increasingly expected to flood the internet for both political and commercial gain, sometimes even with subversive intent. The ludicrous nature of the Jagmeet Singh ads attracted immediate attention but next time, the fake content could be more insidious and less easy to spot. With the advent of a US President who is willing to say and do just about anything, how will we know what is fake and what is real? Maybe the NO FAKES Act will eventually pass in the US, and maybe Canada needs something similar.

© Hugh Stephens 2024. All Rights Reserved.

Of Poppies, Intellectual Property and Other Things (Remembrance Day, 2024)

The new, improved and “unlosable” Canadian poppy (Photo:author)

I am preparing for our annual Remembrance Day ceremony on November 11 at the Community and Fire Hall in our little community of Willis Point, some 20 kilometres north of Victoria, BC. The Volunteer Fire Department will control traffic on the road by the flagpole, and a local resident, who is a naval officer at the Base will, in his full-dress uniform, lay the wreath. There will be the usual reading from “In Flanders Fields”, the Last Post will be played, and after the solemn ceremony we will all repair into the Hall for coffee and hot chocolate (and sometimes something a bit stronger) and view a local resident’s military memorabilia. It will likely be raining. Everyone will be wearing a poppy.

If anything, this year it seems the poppy stands are more ubiquitous than ever, many beside cash counters in grocery and drug stores and in coffee shops, but some at the entrance to stores staffed by friendly Legionnaires. The Royal Canadian Legion is doing a good job of getting out the message. And every politician at every level of government will be sporting a poppy at all their public and media appearances. It seems to be the one thing that unites the country—and Lord knows we need more unifying symbols and behaviour.

Last year I commented on the uncanny ability of the poppy you have just bought to fall off your lapel in the parking lot while you walk to your car, necessitating buying another the next time you go shopping. The alternative is to walk in shame past the smiling Legionnaire by the door with his or her tray of fresh, new, pin-on poppies. I lamented there was no way to better secure them other than by a flimsy pin, but to my surprise, this year my Legionnaire offered me a choice of the standard “fall off” variety or one secured by a clip on the back. The black centre of the poppy has a pin that pierces your jacket and fits securely into the clamp. It is clearly Legion-approved. A long-overdue innovation. I will probably still buy more than one because I will forget to wear the jacket that has the poppy on it, and am unable to pass by those veterans at the door without the protection of my poppy. But it’s all in a good cause.

I notice there’s a lot of interest at this time of the year in a couple of the blog posts I wrote previously on the history of the poppy as a commemorative symbol, at the same time pointing out some of the intellectual property issues arising from its role as a registered trademark of both the Royal Canadian Legion and Royal British Legion. Despite the trademark protection for commemorative poppies in Canada and Britain, not to mention copyright protection of the designs of various products displayed on their websites, unauthorized versions proliferate at this time of year, marketed through online platforms. Veteran’s welfare organizations have to work just as hard as other rights-holders to protect their IP; the internet offers all sorts of creative new outlets for unauthorized commercial exploitation. Amazon has knock offs but also the real thing, as the Legion has done a deal with the web retail giant to sell Legion poppy products, apparently with some considerable success So if you are going to buy a poppy this year, buy it from your friendly local Legion representative or at least from the Legion’s website, the Poppy Store in Canada and the Poppy Shop in Britain–or even through Amazon. It’s probably too late this year anyway, bur remember for next year.

© Hugh Stephens, 2024

If you are not aware of the history of the poppy campaign and the challenges it has faced from unauthorized competition, here is my original Remembrance Day blog post in 2019, with a few updates.

Remembrance Day Poppies and Intellectual Property Controversies

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

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

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

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

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

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

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

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

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

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

If AI Tramples Copyright During its Training and Development, Should AI’s Output Benefit from Copyright Protection? Part Two: Jason Allen

Image: Théâtre D’Opéra Spatial, Jason B. Allen (not protected by copyright)

Last week I wrote about Stephen Thaler’s quixotic and determined approach to obtain copyright registration in the US for his AI generated artwork, “A Recent Entrance to Paradise”, created (he claims) exclusively by his AI “machine”, the so-called Creativity Machine. So far, despite repeated efforts, he has drilled a dry hole. An alternative approach to claiming copyright for an AI-generated work is by asserting that the AI used to produce it was simply a technological assist. The essence of the work was produced through human creativity, using AI only as a tool, and therefore the work should be eligible for copyright protection, or so the argument goes. Unlike the example of Kristina Kashtanova, discussed in last week’s blog, under this theory the entire work is protectable because it was human created, with AI playing only a facilitating or assistive role. This line of attack has most recently been pushed by the creator of the work “Théâtre D’Opéra Spatial”, Jason B. Allen.

Allen made headlines a couple of years back (September 2022) when he entered Théâtre into the Colorado State Fair’s annual art competition in the category of “digital art/digitally manipulated photography.” He labelled the piece as having been created by him, “via Midjourney”, the popular generative AI art algorithm that had recently been released. He won first prize, incurring the opprobrium of many artists who accused him of crashing a contest for human creators. Writing just a month later, in October of 2022, I posted my own AI produced artwork, based on the style of Monet (whose works are in the public domain) in this blog post, (AI and Computer-Generated Art: Its Impact on Artists and Copyright). My effort was substantially less artistic than Allen’s but was an original work of sorts, created with the help of AI. I used the program DALL-E2, which is similar to Midjourney. Both were freely available and a tool that any rank amateur “artist” (like me) could use.

Generative AI as a source of art burst into the public’s consciousness in 2022 because of the public release of these programs, but AI generated art has been around for a few years before that although used exclusively by art specialists. The New York Times reports on a sale at Christie’s Auction House four years earlier, in October 2018 (not exactly eons ago, but generations in internet/AI time). A portrait with blurred and distorted lines produced by an AI algorithm sold in New York for $432,500 (with fees). Christie’s, in inimitable auctioneering style, billed it as “the first portrait generated by an algorithm to come up for auction”, according to the Times. Now AI generated art is a dime a dozen. In fact, often it is hard to tell what is AI generated and what is not.

If the question of copyright protection for AI generated content is a big issue, an even bigger one is currently being played out currently in the courts; content owners, ranging from the New York Times to Getty Images to music labels to authors, are suing various AI development companies for unlicensed use of their content to train AI programs. The Copyright Alliance has a good summary of the various lawsuits in play here. The ultimate outcome is undecided, but if the courts find that the wholesale unlicensed and unauthorized ingestion of copyrighted content to train AI algorithms is not fair use (in the US) or does not fall within specified text and data mining exceptions in other jurisdictions, then the table will be set for serious negotiation between rights holders and AI developers. Some of the parameters of this negotiation are already pretty obvious;

  • a transparent inventory of what copyrighted works were accessed for training;
  • the ability of rights holders to be able to opt out or opt in;
  • various options for licensing content for training purposes.

If these conditions governing inputs were met, rights holders might be somewhat more sympathetic to arguments for copyrighting the output of generative AI programs. As it is, AI developers, and the users of AI programs, want to have their cake and eat it too. Jason B. Allen of “Théâtre D’Opéra Spatial” is Exhibit No. 1.

Allen is currently appealing in court the US Copyright Office’s ruling that his work cannot be registered under copyright. He claims that because of all the publicity about his work, and the USCO’s subsequent decision to deny copyright registration on the grounds that it was an AI generated rather than human creation, the work has lost value and impacted his ability to charge industry-standard licensing fees. Moreover, he claims that without copyright protection, he has no ability to stop others from using his work without authorization. (Like me, posting Théâtre on this blog post). Apparently, people are selling copies of the work on Etsy. One has some sympathy for his position, as it is one faced by many artists whose copyrighted works are also being ripped off on the internet.

Allen argues he had substantial creative input into the production of the work, using no fewer than 624 prompts to create the work to his mental specifications. Of course, we have no idea of what those specifications were. What Midjourney produced may have been an accurate reflection of what Allen had in his mind and intentionally created, or it may have taken him on a journey where he eventually settled on the output offered. One thing is likely, if not certain. Were he to enter those exact same prompts into Midjourney today, the outcome would not be identical to the current “Théâtre D’Opéra Spatial”. This raises the question of who, exactly, is guiding the creative process, the artist making the prompts, or the algorithm responding to the prompts.

Because of the way AI works, there is a large degree of randomness in the results, requiring more and more precise prompts to narrow the range of possibilities and guide the algorithm to the desired destination. But it is almost impossible to recreate precisely the route to an outcome. This suggests to me that, in the end, it is the algorithm that is in control, not the human issuing the prompts. (Although not everyone agrees with this thesis). To my mind, this is what distinguishes AI-generated art from photography, where the photographer, while using a mechanical assist, is nevertheless in full control at all times and has the ability to adjust for extraneous inputs such as light, shadow etc. rather than being controlled by them.

Allen’s appeal of the USCO’s rejection of his copyright claim takes place against a backdrop where Midjourney, the AI program he used, is itself being sued by a group of artists for appropriating their work without permission in order to train Midjourney’s art generation algorithms. Does anyone see any irony in this? However, the fact that Midjourney takes the works of others without permission for training and development purposes is not really Allen’s fault. He and other users of the program could perhaps be considered victims almost as much as the artists whose works have been appropriated. Nevertheless, if Allen is ever successful in getting Théâtre registered, this will be not just to his benefit, but also to the benefit of Midjourney and all the other AI developers who are in a similar position. On the other hand, if the output of their programs cannot be copyright protected, it diminishes the value of the AI product. So, perversely, the more Allen pursues registration for Théâtre, the more he undercuts those who make a living from producing art.

I see one possible scenario that could help resolve the issue of AI outputs being unprotectable. If the key elements of respect for copyrighted work (transparent inventory, opt in/out, licensing) were to be adopted by AI developers, then perhaps rights-holders would be more amenable to accepting at least some degree of copyright protection for AI created or assisted outputs. But right now, the AI industry wants it both ways; total freedom to appropriate copyrighted works for training and development purposes while claiming the same copyright protection they have just trampled for AI generated outputs. Jason Allen and other digital artists who use AI to produce art or other works are caught in the middle.

At the moment there is no clear solution. The most likely outcome–after all the legal dust has settled—is probably going to be some ability to copyright works produced with AI, dependent on the extent and degree of human intervention in a given work (which could possibly be carefully tailored prompts), balanced by a commitment by the AI industry to recognize the property rights of those holding copyright over the content it is using to create the AI program in the first place. This will necessarily involve an appropriate sharing of the added value being produced by AI in the form of licensing fees. This will take a few more years, a few more lawsuits, a few court decisions, and a few government interventions in the form of legislation–but I can see no other way forward. In the interim, neither Stephen Thaler nor Jason Allen are likely to get what they want.

© Hugh Stephens 2024. All Rights Reserved.

If AI Tramples Copyright During its Training and Development, Should AI’s Output Benefit from Copyright Protection? Part One: Stephen Thaler

” A Recent Entrance to Paradise”, Stephen Thaler (not protected by copyright)

One of the ongoing debates about works made with generative AI is whether they qualify for copyright protection. Should they? Let’s consider the essence of copyright. What is its raison d’être? According to the classical European definition, it is to respect the property rights of the author (droit d’auteur), sometimes described in the simple terms of the Eighth Commandment (“Thou shalt not steal”). According to the more utilitarian Anglo-Saxon rationale for copyright, it is to benefit society by rewarding and incentivizing authors, thus stimulating further production of works for the greater good. In either case, it gives one pause to wonder how works created by AI fit into either school of thought. Is there an inherent property right in content produced by an algorithm? How does copyright protection incentivize an algorithm to produce more “useful arts”?

In my view, the only way one can square this circle is by attributing human creation, or at least a degree of human creation, to AI generated works. But this opens Pandora’s box; if there is to be human attribution, to whom in the chain of creation does the credit fall? How much human creativity is required? It also raises the spectre of hypocrisy, as the AI industry hijacks the creative work of others, without recognition or recompense, yet has the gall to claim that AI outputs are unique and worthy of protection. I have written about these issues before (here, here, and here), but a couple of recent cases in the US have brought these fundamental issues bubbling back to the surface.

When it comes to trying to prove that AI and copyright protection go together, there are a couple of different approaches. One, most notably espoused by an AI technologist in the US named Stephen Thaler, is to claim that a given work was produced exclusively by AI but should nonetheless be protected. In Thaler’s case, the work for which he is seeking copyright registration was created by a particular AI “machine” (or algorithm), specifically the one he “invented”, the so-called “Creativity Machine”. Thaler claims his machine should hold the copyright but behind the machine, of course, stands Thaler. This is not dissimilar to existing British copyright law where, under Section 178 of the Copyright, Designs and Patents Act, 1988, works “generated by computer in circumstances such that there is no human author of the work” are nevertheless accorded copyright protection for fifty years from date of creation, with the copyright being held by “the person by whom the arrangements necessary for the creation of the work are undertaken”, even if there was no creative act undertaken by that person.

As I noted in an earlier blog post (The Humanity of Copyright), Thaler began his (so far) unsuccessful pursuit of US copyright registration for his professed 100% AI generated art work, “A Recent Entrance to Paradise”, back in 2018. Despite several reversals, both in the application process at the USCO, its Review Board and in the District of Columbia courts, Thaler persists in his quixotic journey. He has unsuccessfully argued various precedents for non-human copyright ownership, such as the “work for hire” doctrine and corporate copyright, although it is worth noting that humans stand behind both. He is now apparently pursuing the common law theory of “fruit of the tree” in his attempt to get the USCO to register his work. To my non-legal mind, this is the ultimate stretch.

What Thaler could do is to claim that at least part of the work is the result of his personal creative efforts. That was the USCO outcome for the graphic novel Zarya of the Dawn produced by writer Kristina Kashtanova (who identifies as “they”). The novel contained both generative artwork and human story and design elements. After initially registering Kashtanova’s work, the Copyright Office cancelled the registration after they (Kashtanova, that is) claimed it was AI produced. The Office subsequently reconsidered and granted copyright protection to the parts of the work Kashtanova had created, namely the text, and selection and arrangement of the work’s written and visual elements. That, however, is a step too far for Thaler who continues to push for recognition by the Copyright Office that a work produced exclusively by his “Creativity Machine” can be protected by copyright. That seems very unlikely to happen.

While Thaler doggedly pursues copyright registration for “A Recent Entry to Paradise” (featured on this blog post—after all, it is not copyright protected), others who have created art using AI are following a different track. One of these is Jason B. Allen, whose award-winning digital art creation “Théâtre D’Opéra Spatial” has also been denied copyright registration. Allen’s approach is the opposite to that taken by Thaler. In contrast to Thaler’s insistence that the work is a creation of AI (his AI “machine”), Allen insists that he is the source of the creative inspiration behind the work, notwithstanding that it was created by an AI algorithm, Midjourney. Allen’s pursuit of copyright registration for “Théâtre” will be the subject of my blog post next week.

© Hugh Stephens, 2024. All Rights Reserved.

Singapore Inhibits Rightsholders Ability to Use Contracts to Prevent Unlicensed Text and Data Mining of Content

Image: Shutterstock (AI modified)

Singapore already has one of the most permissive text and data mining (TDM) exceptions in copyright law found anywhere, allowing AI developers to ingest copyrighted content for AI training purposes subject only to a very few limitations, all of which are pretty minimal. These provisions were introduced back in 2021 when several changes were made to the Copyright Act, some, frankly, better than others from the perspective of rightsholders. The TDM exception is not among the more positive outcomes. It is made worse by a provision in Singapore law that, for all practical purposes, prevents rightsholders from exercising contract terms to prevent the unlicensed appropriation of their content for the commercial benefit of third parties, namely, AI developers.

The term used to describe text and data mining in Singaporean law is “computational data analysis”.  As explained in this law firm blog post, this is defined as including;

“using a computer program to identify, extract and analyse information or data from the work; (or) using the work as an example of a type of information or data to improve the functioning of a computer program in relation to that type of information or data – a specific example being the use of images to train a computer program to recognise images”

The exception also permits supplying the works to other persons, provided this is for the purpose of “(i) verifying the results of the computational data analysis carried out by the latter; or (ii) collaborative research or study relating to the purpose of such analysis carried out by the latter.”

This is simply commercial, unlicensed web scraping of copyrighted content for AI development by another name, with very few limitations.

Singapore is now contemplating opening that door even wider by permitting the circumvention of digital locks (aka Technological Protection Measures, or TPMs) to allow text and data mining for AI training, as I wrote about here. (Singapore’s New Copyright Act Three Years On: There’s No Need to Open the AI Exception Door Even Wider). This proposal needs serious reconsideration as it would seriously tilt the copyright balance in favour of AI platforms to the detriment of rightsholders.

Another example of Singapore’s increasingly permissive approach to copyright protection is its undermining of the sanctity of contracts by limiting contractual terms that prevent unlicensed and unauthorized use of copyrighted content. In other words, the Act limits the ability of contractual terms to protect against, or override, the TDM exceptions. Rightsholders cannot “contract out” of the exceptions.

This provision was included when the Copyright Act was last updated (2021). The list of exceptions that cannot be restricted by contract was expanded to include the exception for computational data analysis use, as well as a couple of other uses; use of a work in judicial proceedings or for legal advice, and functions of galleries, libraries, archives, and museums, the so-called GLAM sector.  The computational data analysis exception is the one of concern. It requires that to be enforceable, a contract that limits the ability of a user to scrape content must be individually negotiated. In other words, standard contract terms on websites that limit use (so called shrink-wrap or clickwrap agreements) cannot be used to override the TDM exception. This has the effect of rendering standard contractual terms virtually unenforceable. They become the exception rather than the norm.

The term “shrink-wrap agreement” was originally applied to the preprinted agreement included as part of the packaging containing a software program. By opening the packaging, the user agreed to comply with the licence terms of the software. The term has since been expanded to include “clickwrap agreements” that take effect when a user accepts the terms and conditions of a website. This can be used to specify that the content about to be accessed can only be used for certain purposes or under certain conditions. One of these conditions could be a restriction on use of unlicensed content for AI development. The Singapore legislation eliminates what is a standard practice used by rights-holders in many parts of the world to protect and control use of their content. It also means that robot.txt files used by rightsholders to signal that their content should not be freely scraped (compliance is voluntary) are unlikely to be respected in Singapore. Robot.txt limitations are often included in clickwrap agreements.

Not only does the Singapore law allow for a broad undermining of contractual terms, and prevents “contracting out”, but its TDM exception is very wide in terms of application. In the UK, while contractual terms cannot override the TDM exception, unlike in Singapore allowable TDM use is much narrower. The exception in the UK can be used only “for the sole purpose of research for a non-commercial purpose”. No such restriction exists in Singapore. In the EU, contractual terms can override the general TDM exception (Article 4), unless the unlicensed access is “conducted by research organisations and cultural heritage organisations” or is “for the purposes of scientific research”, (Article 3). In these limited cases only, the contractual override does not apply. This still provides broader protection for rights-holders, and where the contractual override is disallowed, it is for very limited purposes. This is a much more nuanced approach than the one adopted by Singapore.

Contract law is generally seen as the oil that lubricates the wheels of business. In the digital age, shortcuts in the form of clickwrap agreements have been used to convey contractual terms to users. In some jurisdictions, explicit consent is required by clicking “I Agree”. Singapore’s current copyright legislation undermines the sanctity of contracts by imposing unrealistic conditions, particularly with respect to limiting the rights of rightsholders to prevent web-crawlers from ingesting copyrighted content without licence or permission. To say this is problematic is an understatement.

Singapore can do better. As an exemplar of rule of law in the region, it should be as assiduous in protecting the rights of copyright owners as it seems to be in advancing the interests of AI developers. The motivation, apparently, is to promote “innovation”. This is a misread of what brings about innovation. True innovation comes with a partnership between rights-holders and users that protects and compensates rights-holders for the time, effort and investment they have put into developing content that is clearly of value to the AI community. That content should be licensed, or at the very least, rights-holders should be given the option to opt-out through the ability to enforce contract terms, including overriding text and data mining exceptions when necessary.

© Hugh Stephens, 2024. All Rights Reserved.

Smoking in Films: Governments Should Do What is Reasonable and Responsible (Indonesia Please Take Note)

Image: Shutterstock

I am a lifelong non-smoker, although this is more by luck than design. When the other kids were lighting up behind the school, I joined them. However, while some of them got over the feeling of nausea brought on by those first puffs and became hooked on nicotine for life (hopefully, to their “undying” regret), I was never able to get over the initial hurdle. I was lucky and claim no moral superiority. Today we all know about the public health consequences of smoking. Governments have developed a variety of policies designed to discourage smoking, from banning indoor smoking, to high taxes, to plain packaging, to health warnings and other educational efforts. This has had a high degree of success.

Yet despite a couple of generations of anti-smoking campaigns, smoking is still a reality in our society. Peoples’ motivations are different, and it is not for me to judge or preach. They are fully aware of the risks. Banning smoking would be about as effective as Prohibition was in reducing alcohol consumption. It had just the opposite effect. For this reason, proposals to make the sale and consumption of tobacco products illegal have understandably gone nowhere. The same is true for regulations that pretend smoking doesn’t exist. For better or worse, it does, and is a part of everyday life, today and in the past. And this brings me to the point of this little trip down the highways and byways of anti-smoking efforts; smoking and its relationship to filmed entertainment.

One cannot think of Humphrey Bogart without a fag hanging from his lips, a trail of smoke wafting across the face of his paramour of the moment. It would be impossible to reflect the atmosphere of a smoke-filled saloon in Dodge City without the presence of roll-your-owns. And what would W.C. Fields be without a stogie? However, it is not just historical films where smoking plays a part in creating the scene and depicting reality. Whether we like it or not, smoking is a part of the current scene (especially, it seems, in Europe). If any readers have sat recently in an outdoor café in Spain, France or Italy, you will know what I mean. I am not saying this is right; I am saying it is a fact of life.

This raises the question of how the film and TV industry should deal with the smoking issue. Should it pretend it doesn’t exist or should it deal with the issue responsibly? For decades the industry has grappled with this dilemma. The current approach is to eliminate smoking in children’s programming and issue clear warnings with respect to content aimed at more mature audiences while depicting smoking on occasions where it is necessary to convey the story. The filmed entertainment industry builds its product by telling stories that, for the most part, reflect the real world in one way or the other. Yes, there are films set on the planet of the apes, or in some future world, but most stories take place in a contemporary or historical setting. Being a reflection of society, at times filmed content depicts people smoking.

Depiction, however, has nothing to do with promotion. They are totally different.  Yet despite the difference, there are proposals from time to time in some countries–such as Indonesia at present–to deal with smoking as if it doesn’t exist. The draft regulations as currently framed would ban all scenes in filmed content that depict any smoking. This includes content produced by international streamers, such as Netflix, Amazon Prime, HBO, Disney +, etc. This, I would submit, is a step too far—and completely unnecessary.

The draft regulation is in preparation for Indonesia’s accession to the Framework Convention on Tobacco Control under the umbrella of the World Health Organization (WHO). Many countries in the Asia-Pacific region, and elsewhere, are already signatories. The treaty has been in force for about twenty years and is designed to coordinate international tobacco control efforts. According to the WHO, it has been an effective instrument in curbing what it calls a “global tobacco epidemic”. It is a worthwhile endeavour, worthy of support. The treaty was initially signed by 168 countries and now has 183 Parties, representing 90% of the world’s population. Indonesia is one of the few not to have yet acceded and the only one in Asia.

Accession and ratification requires compliance with the obligations of the Convention. These include restrictions on tobacco lobbying, demand reduction (taxes), protection from passive smoking, product regulation, packaging and labelling (health warnings), public awareness, advertising bans, addiction cessation programs, actions against smuggling and restricting sales to minors. These measures have all proven to be highly effective. Notably, there is no mention of depiction of smoking in films or TV programming nor any requirement to censor it.

However, Article 24 of the draft Indonesian Health Regulations regarding tobacco and electronic cigarette product safeguards prohibits the broadcasting, depiction, show or display of individuals “smoking, showing cigarettes, cigarette smoke, cigarette packaging, or any product relating to Tobacco and Electronic cigarettes in print media, broadcast media or information technology media related to commercial activities, advertisement or encouraging smoking.”

The draft regulation then goes on to say;

“The prohibition…includes streaming services that offer TV shows, movies, anime, documentaries, and other content accessible via internet-connected devices…Streaming services include Netflix, Disney+ Hotstar, WeTV, Viu, Iflix, Prime Video, GoPlay, CATCHPLAY+, MolaTV, Twitch, and others.”

Let’s remember that international (and domestic) streaming services are premium offerings directed at a willing, paying audience. A viewer has to “opt in” by paying a subscription. Moreover, content on the streaming platforms already complies with the anti-smoking limitations described above, such as warning labels and no exposure to children. If implemented, the Indonesian decree would require international streamers and their domestic distributors to edit all content to remove any and all depiction of smoking. Not only would this emasculate content that viewers have paid to watch, it is both impractical and unnecessary.

The draft regulation is not an accidental sideswiping of the streaming industry. It is aimed directly at it. It is hard to understand why. It already deals responsibly with smoking on screen. Implementing this measure would simply shift audiences to unedited pirate content, which is rampant in Indonesia.  

The relevant section of the WHO Convention is Article 13, covering tobacco advertising, promotion and sponsorship. That article, along with its Interpretive Guidelines, requires acceding states to control advertising for tobacco products by prohibiting advertising that is false, misleading, or deceptive and by requiring health warnings on tobacco advertising, promotion and sponsorship. It also requires restrictions on incentives to purchase tobacco and prohibition, if legally possible, of tobacco sponsorship of international events and activities. Again, nothing about banning depictions of smoking.

The 28-page Guideline document goes into more detail. It raises the issue of tobacco in media, noting that the tobacco companies can get very creative when it comes to promoting their products, sometimes using “hidden forms of advertising or promotion, such as insertion of tobacco products or tobacco use in various media contents”. In other words, product placement. However, depiction of incidental smoking in films has nothing, absolutely nothing, to do with product placement or tobacco promotion.

The Guidelines go on to list what the elements of a comprehensive ban on tobacco advertising, sponsorship and promotion, as required by the Treaty, should cover;

■ all advertising and promotion, as well as sponsorship, without exemption;

■ direct and indirect advertising, promotion and sponsorship;

■ acts that aim at promotion and acts that have or are likely to have a promotional effect;

■ promotion of tobacco products and the use of tobacco;

■ commercial communications and commercial recommendations and actions;

■ contribution of any kind to any event, activity or individual;

■ advertising and promotion of tobacco brand names and all corporate promotion; and

■ traditional media (print, television and radio) and all media platforms, including Internet, mobile telephones and other new technologies as well as films

In other words, both traditional and non-traditional media should be subject to the ban on tobacco advertising and promotion. But this has nothing to do with incidental depiction.

Drilling down a bit further, there is a section dealing with depictions of tobacco in entertainment media, followed by Recommendations;

“Parties should take particular measures concerning the depiction of tobacco in entertainment media products, including requiring certification that no benefits have been received for any tobacco depictions, prohibiting the use of identifiable tobacco brands or imagery, requiring anti-tobacco advertisements and implementing a ratings or classification system that takes tobacco depictions into account.”

International streamers already comply with all these requirements, which explains why they have been able to continue to do business in all the countries that have signed on to the Convention, including the US which, although it has not become a Party, applies similar conditions.

The Indonesian regulation that would require streaming services to remove all depictions of smoking is excessive. While the goal of reducing consumption of tobacco products is laudable, to require the complete elimination of depiction, especially from streaming services, is using a sledgehammer to kill a fly, destroying the furniture on which the fly landed in the process. Appropriate, targetted regulation deals directly with the problem, avoiding unintended consequences and collateral damage. Regrettably, the current Indonesia draft regulations do not do that. By all means, fight tobacco consumption and stop the tobacco companies from finding loopholes. But do it in a way that is effective and reasonable.

© Hugh Stephens, 2024. All Rights Reserved.