Category: Copyright

Blacklock’s Reporter (BR) v Attorney General for Canada (AGC): Score One for “David”

A cartoon-style illustration depicting a young boy facing a giant warrior, with a dramatic background. Text overlays include 'BR' and 'AGC'.

Image: Shutterstock (modified)

The ongoing David vs Goliath tussle involving a small web-based Ottawa public affairs journal, Blacklock’s Reporter (BR), that took on the Government of Canada (GOC) over a series of alleged copyright infringements, has just seen a significant new development.  On March 19, 2026, the Federal Court of Appeal (FCA) announced its decision in the Parks Canada case, upholding BR’s appeal of a 2024 Federal Court ruling delivered by Justice Yvan Roy. Roy had declared (1) that the use of a password by Parks Canada to access BR content constituted fair dealing under the Copyright Act, and (2) that the licit use of a password does not constitute circumvention of a TPM (technological protection measure, often referred to as a “digital lock”) as defined in the Copyright Act. That decision and its attendant declarations are now vacated. Costs were awarded to BR. This is an important victory for rightsholders and businesses that depend on TPMs to protect paywalled content. It’s also a black eye for the government’s litigator, the Attorney General for Canada (AGC), which sought these declarations as a way of justifying alleged repeated cases of copyright infringing activity by various GOC Departments and agencies.

Let’s review the history. BR is a subscription-based digital journal. Its stock in trade is “Inside Ottawa” investigative reporting. It is, frankly, a thorn in the side of government which is precisely why its role is so important. Its breaks the stories that well-staffed and well-funded departmental communications shops don’t want covered. It doesn’t print government news releases; instead, it provides investigative stories to its customers. An individual can subscribe to BR on an annual basis for a relatively modest sum, currently $314 plus tax, which compares favourably to the digital subscription rates of leading national media organizations. However, larger entities like companies or government agencies that have multiple users require institutional subscriptions. The cost depends on the number of subscribers, i.e. the degree of access. There is nothing unusual about this; it is a common business model. That business model depends on controlling access to the paywalled content. Passwords are commonly used for this purpose.

For a number of years, BR has been fighting the GOC over the government’s unwillingness to pay for bulk subscriptions for its various agencies. Because BR had difficulty in knowing how many employees within a given agency had access to its content, it filed Access to Information (ATI) requests to obtain this information. It then used the ATI revelations–which confirmed there were multiple users (in some cases, thousands) who were not covered by the subscription to BR– to bring suit for copyright infringement against these government agencies. This led the government’s lawyers, through the Attorney General for Canada (AGC,) to accuse BR of entrapment and using copyright trolling as a business model. This ludicrous accusation, which in effect suggests that BR only investigates and reports on what the government is doing in order to sell bulk subscriptions to government agencies, was firmly and rightly rejected by the courts. Given that BR was only suing for the cost of an institutional subscription, it seems evident that their sole objective was to be paid appropriately for the use of their services. However, despite the Court’s repudiation of the trolling accusation, to date BR has not been successful in proving copyright infringement on the part of the GOC and its agencies. The successful appeal opens up the possibility of further court action.

The Parks Canada case was one of BR’s first attempts to assert its copyright, as I discussed in an earlier blog post. In 2013, a Parks Canada employee accessed the BR website and purchased an individual subscription. She then shared the password she obtained with a number of other employees within the agency. BR sued, arguing this was copyright infringement and a violation of its terms of service. The AGC on behalf of Parks Canada contended the use was a fair dealing for research purposes. The nub of the issue was whether the content had been accessed legally, which is a requirement to be able to exercise the fair dealing provisions of the Copyright Act (Section 29). Fair dealing (that is, use without permission for specified purposes) does not apply if the content is protected by a TPM that has been circumvented. Circumvention is described in the Act as using descrambling or decryption or to “otherwise avoid, bypass, remove, deactivate or impair” the TPM. But what was the TPM (the password or the paywall?) and was it “bypassed”? It was a complicated scenario. As was its right, BR announced in 2021 that it had decided to discontinue this particular case and instead focus on infringement that had occurred elsewhere, in another GOC agency.

That should have been the end of it but for the action of the AGC, which did an end-run on BR’s discontinuance motion. This was was due to be officially filed on Monday morning, July 5, 2021. The AGC filed an application for summary judgment and a counterclaim (on a Sunday yet, July 4, the last day possible for such action) seeking the declarations mentioned in paragraph one. The original plaintiff, BR, thus became the respondent. The AGC sought to use the Parks Canada case, which the plaintiff had chosen to discontinue, to obtain broad declarations it could use in other cases brought by BR. For example, it sought a broad declaration that a password was not a TPM (which would imply therefore that password sharing was legal). However, the Federal Court declined to address that issue, limiting its decision to the facts of this one case. Having been forced to defend a case it had sought to discontinue, becoming in effect the respondent, and having lost, BR appealed. It has now been vindicated. As Appeal Justice Wyman Webb of the Federal Court of Appeal (FCA) clearly stated;

“…the Federal Court erred in making the declarations. I would allow the appeal and set aside the Judgment of the Federal Court”.

What has been the reaction in the free-access community that had so openly lauded the initial Federal Court decision? University of Ottawa professor Michael Geist, who crowed that the original decision, now overturned, was a “huge win” for users of copyrighted content–at least those who don’t want to pay for the paywalled content they use—has remained silent. For many years Dr. Geist has been closely associated with CIPPIC (the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa) which was a third-party intervenor in the case, supporting the AGC. While Geist has remained silent, CIPPIC has commented, trying to minimize the impact of the decision by dismissing it as a technical issue. Although Justice Roy’s declarations have been set aside, CIPPIC tries to salvage some usable timber from the wreckage by claiming that his views on fair dealing and passwords remain as obiter (non-binding opinions). However, as this legal blog notes,

“This appellate ruling effectively nullifies the precedential value of the judgment….Moreover, the FCA explicitly noted that the court’s findings…that Blacklock’s paywall was “not the TPM” (as distinct from the password) was obiter dicta and not binding. While the FCA declined to endorse or criticize this comment, it appears that the FCA was skeptical of the findings of Justice Roy.”

Retired IP lawyer Howard Knopf, who maintains a blog titled “Excess Copyright” (which tells you all you need to know about his views on copyright), has written extensively on the BR Parks Canada case over the years. Back in August of 2024, after Justice Roy’s decision against BR, he commented that “I would frankly be surprised, but not shocked, if BR actually does appeal.” He thought BR had more to lose than to gain from doing so. Once BR had launched its appeal, Mr. Knopf informed the world that “the jurisprudence and the factual record suggest that Blacklock’s will lose the appeal.” That was clearly his belief, but he backed it up by asking ChatGPT (I am serious), which agreed that BR’s appeal would be dismissed and Justice Roy’s decision affirmed in all respects. Then came the Appeal Court’s decision. Oops. How to explain that? Easy. It was a “pyrrhic victory”. Blame ChatGPT. After all, it can’t be expected to be right all the time.

Why was the victory so “pyrrhic” (meaning not worth the cost of victory)? Knopf doesn’t say, although he is forced to acknowledge that the AGC’s motion for summary judgment has been dismissed, the declarations are voided, and costs have been awarded to BR. Having got the Parks Canada case–which it wanted to discontinue–set aside, BR is free to pursue other options, and it may do so. While Justice Roy’s views on fair dealing have not been reversed, they have also not been accepted. They have been nullified (set aside). This is not a pyrrhic victory; it is real and substantive.

The Government of Canada has deep pockets when it comes to litigation. Rather than waste these taxpayer-funded resources in pursuing small businesses who are seeking to get paid fairly for their work, as it clearly did with its “too clever by half” legal manoeuvre on the Parks Canada case, it should walk its talk about supporting Canadian media. This means doing the right thing and paying for the access it provides to its employees. Instead, it unleashed the legal dogs at AGC to try to teach BR a lesson. That strategy has just blown up in its face. Score one for David.

© Hugh Stephens, 2026. All Rights Reserved.

US Musicians Unsuccessfully Seek Royalty Benefits in UK they are Denied in US: Maybe They Should Fix the Problem at Home?

A cheerful radio host sitting at a desk with a microphone, computer, and coffee cup, wearing headphones, with an 'ON AIR' sign in the background.

Image: Shutterstock

US artists and musicians, unable to get Congress to grant them royalties for their performances broadcast over terrestrial radio networks in the US, continue to try to obtain in foreign countries what they cannot get at home. Sometimes they have been successful, as in the case of Canada where as part of the update of NAFTA and its replacement by the Canada-US-Mexico (CUSMA) Agreement (or USMCA if you prefer) in 2020, Canada granted US performers “national treatment”. This means they get treated “no less favourably” than—i.e. just as well as—Canadian performers with respect to royalty payments. In other words, they get paid.  Canadian performers in the US also get national treatment, which means they get treated just as badly as their US counterparts, receiving no royalties at all when their music is broadcast terrestrially. The US music industry, or at least the part of it affected by US restrictions on royalty payments (performers and labels), has long lobbied to remove this inequity. A few years ago legislation designed to fix this problem, the American Music Fairness Act, or AMFA, was introduced into Congress. As I explained at the time;

“US terrestrial radio stations are not required to pay royalties to performers or labels for playing recorded music on air. Online broadcasters and streaming services do, but not over-the-air AM/FM radio stations. Terrestrial stations do, however, pay royalties to composers and songwriters for music played on air, but not to performers.”

It is a strange, assymetric exemption from the requirement to pay royalties. Passage of AMFA would close this loophole by ensuring that performers (artists, singers and musicians) as well as owners of the sound recording copyright, normally labels, receive royalties when a work is broadcast commercially on terrestrial radio. But the AMFA bill, and successive versions introduced since, did not make it across the finish line.

If this seems odd and inequitable, it is. It relates to the influence of the National Association of Broadcasters (NAB) in Congress. For decades the NAB has managed to block legislation that would fix this anomaly by arguing that terrestrial stations provide “free airtime” that promotes new recordings. This is a specious argument akin to the canard that platforms distributing pirated content promote legitimate business by giving new content greater exposure. If the “free exposure” argument was ever valid, it is no longer in a world where new music is promoted on digital radio channels and through Spotify, YouTube and Tiktok. Nowadays, triggering algorithmic discovery is key, yet over-the-air radio stations are still getting a free ride when playing recorded music. Given the strength of the NAB lobby don’t look for AMFA to pass Congress any time soon, despite the concerted efforts of the American Federation of Musicians. And it is not just a US problem. Not only do US performers not get paid when their music is broadcast terrestrially on radio in the US, neither do non-US performers or labels. This leads to another dimension of the issue.

The failure to allow foreign performers to collect royalties in the United States usually has a knock-on effect for US artists when their music is played abroad–unless the US has been able to obtain national treatment through a special bilateral agreement. Performers’ organizations in other countries object to US musicians being granted royalties in their own country because if US artists gain access to a national royalty pot, the amount paid out to domestic performers is reduced (by the amount paid to US artists). When US artists are denied royalty payments on the basis of reciprocal as opposed to national treatment, the collected royalties that would normally go to American performers are redistributed to domestic counterparts or retained by performing rights organizations for the benefit of the domestic music industry as a whole. Normally, payments going to US performers abroad would be offset by payment of royalties in the US to foreign musicians–and everyone would gain–but because of US legislation, the US royalty revenue stream for this music category is non-existent, for everyone. Therefore, from the point of view of domestic musicians, it is unfair for US artists to expect a benefit abroad that is denied to foreign performers in the US. International copyright treaties allow for withholding of national treatment benefits under the principle of material reciprocity. Put bluntly, this means that “If you withhold royalty payments from our performers, we will do the same to yours”.

While material reciprocity is a well recognized principle of international copyright, it’s not all that simple because there are provisions in some international treaties that require national treatment (i.e. payment of royalties) for recordings based on where they are first released even if the artists themselves are from countries (like the US) that deny royalty benefits. This would override reciprocity provisions. In 2020, the EU Court of Justice ruled that denial of royalties to US performers in Ireland on the basis of reciprocity was inconsistent with EU law, which does not mention reciprocity. Since then the Netherlands and Sweden have dropped the reciprocity rule and allow payment to US performers, but most EU countries still do not. Nor does the UK, a non-EU member since January 31, 2020.

It is ironic that Ireland was the jurisdiction where US performers made a legal breakthrough in terms of overseas royalty payments given the WTO Irish Music case. Here the US continues to ignore a WTO panel finding made over 25 years ago, in 2000. The WTO panel ruled that another royalty exemption, in this case a US law that allows business establishments to play licensed music without royalty payments as long as it is “background music”, is non-compliant with US treaty obligations. The US Administration at the time was unable to get Congress to amend the law and offered to pay compensation, but this lasted only three years. This case remains an outstanding irritant between the US and the EU, with the US continuing to say that it will “work closely with the U.S. Congress and will continue to confer with the European Union in order to reach a mutually satisfactory resolution of this matter.” So far nothing has happened, and Irish musicians are out of pocket at least $1 million dollars a year for Irish music played as background entertainment in US business establishments. (i.e. Irish pubs in the US).

If you are looking for consistency in abiding by trade obligations when it comes to large countries versus small ones, you will be disappointed. The Irish Music Case is a good example of assymetric respect for international trade rules. The Donald Trump technique of respecting trade obligations very selectively, or not at all, is not a new phenomenon, although it is far more apparent today. In any event, if you are an advocate for a particular constituency, such as US performers, consistency is not the issue. Results are. It was in this vein that the American Federation of Musicians (AFM) challenged recent British legislation that denied payment of royalties to US performers. The UK has maintained the principle of material reciprocity for many years, but its recent accession to the CPTPP Trade Agreement (the Comprehensive and Progressive Agreement for Trans-Pacific Partnership) opened the door, or so thought the AFM , to revisiting the issue. They brought forth a number of interesting arguments, but in the end did not prevail. In my next blog post, I will look at the issues raised, and the reasons for the British court’s decision.

At the end of the day, the best solution for everyone would be to close the US loophole. This would eliminate the reciprocity issue once and for all. Maybe it’s time the AFM redoubled its efforts to fix the problem at home.

© Hugh Stephens, 2026. All Rights Reserved.

Korea’s AI Action Plan: Declaring War on Creators?

A young woman in a sparkling silver outfit poses next to a large robotic figure, adorned with South Korean symbols and colors, in a vibrant city background.

Image: Shutterstock

In the scramble to jump on the global AI bandwagon, Korea has floated a proposal that would supposedly remove “legal uncertainty” for AI developers who use copyrighted content to train AI platforms. Unfortunately, the proposed “solution” threatens to throw Korea’s globally renowned creative sector under the bus. Nor does it remove the uncertainty.

As part of President Lee Jae-Myung’s National Artificial Intelligence Strategy, its Presidential Council has put forward a 98 point “Action Plan”, a blueprint for implementation. There are many aspects to an AI strategy, but a key element is to ensure legal clarity with respect to the use of content for AI training, especially copyrighted content. The Action Plan purports to do this. Its Point 32 proposes the introduction of “explicit exceptions under the Copyright Act to allow copyrighted works to be used without legal uncertainty (emphasis added) in the processes of collecting and analyzing data available on the web”. In other words, introduction of a copyright exception for text and data mining (TDM), subject to certain conditions such as some form of remuneration, transparency, and opt-out features for rightsholders.

If the goal is to remove “legal uncertainty” regarding the use of copyrighted works, this proposal falls short of the mark. No exception can provide 100% certainty given the Berne Convention requirement that any exception meet the so-called “three step test”, meaning that an exception is permitted only in certain special cases, provided that it does not conflict with normal exploitation of the work and does not unreasonably prejudice the author’s legitimate interests. While there will always be a degree of uncertainty regarding exceptions, the good news is there is a ready alternative. The surest way to ensure legal certainty is to encourage licensing of content from rightsholders. The problem with the introduction of a TDM exception—or even the discussion of a possible TDM loophole–is that it diminishes the likelihood of reaching licensing solutions by reducing the pressure on AI developers to open their wallets to reach licensing deals.

It is even more bizarre that the tech industry is pressing for a TDM exception given that Korea is one of the few countries, alongside the United States, that has adopted a fair use provision in its Copyright law. This was done in 2011 as part of the implementation of the Korea-US Free Trade Agreement after heavy lobbying by the tech sector. Fair use allows courts to make case-by-case judgements as to whether a given use meets fair use criteria, thus potentially allowing reproduction of copyrighted material without advance permission from the rightsholder. If free use of copyrighted material for AI training can be shown to be “fair”, why is a TDM exception needed? Even in countries where fair use does not apply (which is most of the world), there is no convincing case or consensus on the need for a TDM exception; there is even less reason for one in a state that has already adopted fair use.

Point 32 of the Action Plan takes note of the existence of fair use in Korea, commenting that the Ministry of Culture, Sports and Tourism is preparing fair use guidelines. These are to provide interpretive guidance on the exemption provisions of the Copyright Act to enable companies to utilize copyrighted data “with greater confidence”. Despite this, the Action Plan claims these guidelines alone are unlikely to fully eliminate uncertainty and judicial risks. Voluntary licensing, however, would eliminate both.

It is well established that AI developers need vast amounts of data to improve the performance of their AI platforms. To date they have largely employed a “take first, ask later” policy. This has led to numerous lawsuits pitting rightsholders against the tech industry, mostly but not exclusively in the US. AI developers in the US have argued that what they are doing amounts to “fair use” because the final AI product is used for a different purpose from the original and thus does not compete with it. That is highly debatable, especially with image and music-based AI works. To date, the results from the US courts have been mixed.

The legality of the tech industry’s unauthorized use of copyrighted content is an issue that a number of countries, in Asia and around the world, are looking at. Various solutions have been proposed to eliminate the uncertainties that arise from leaving the decision to the courts. Among these are TDM exceptions which have been introduced, albeit with strict limitations, in the UK, the EU and Japan. In the UK for example, use is limited to non-commercial purposes. In the EU, it must be accompanied by transparency requirements and opt-out provisions for authors. In Japan, if the unauthorized user derives commercial benefit from the content, the safe harbour does not apply. Australia has explicitly ruled out introducing a TDM exception in order to protect its creative sector, while many others (eg. India, Canada) have no TDM provision in their copyright law. As noted above, the clearest way to remove any uncertainty about the legality of using copyrighted works is to incentivize and recognize voluntary licensing as the solution. This ensures that rightsholders receive appropriate compensation for the work they have put into creating content, while guaranteeing legal certainty for licensees.

The Korean strategy paper argues that AI companies are required to obtain individual consent from each copyright holder “leading to significant costs and time burdens in securing high-quality training data”. But large amounts of high-quality content can be accessed through voluntary licensing agreements with major content creation companies such as studios, publishers, broadcasters, music labels and so on. As for individual authors and artists, one possibility is to look at the model currently used for licensing print and music content through Collective Rights Management Organizations as a supplement to voluntary licenses signed with major rightsholders.

In addition to being instructed to prepare the necessary amendment to the Copyright Law for presentation to the National Assembly by Q2 of this year, the Culture, Sports and Tourism Ministry, in cooperation with the Ministry of Science and Technology, is to “promulgate standard contract templates for the licensing and transfer of copyrights for AI training”. This is the kind of heavy-handed market intervention that is guaranteed to stifle voluntary licensing. Not only that, it amounts to expropriating the rights of Korean creators to manage their works.

The Action Plan gives a nod to the importance of compensating rightsholders and claims it wants to establish a system that respects the rights of creators. However, given the size and importance of Korea’s cultural industries, from film to K-Pop to literature, it is surprising there isn’t greater recognition of what an important strategic and economic asset this sector represents for Korea. Although the Strategy acknowledges that content industries should be able to share the benefits of growth in the AI industry, the proposed solution is unbalanced and biased toward clearing any so-called “obstacles” to unimpeded use of content. As a result,  just days after the extremely brief (20 day) consultation period on the Strategy had closed, in mid-January sixteen creator and rightsholder groups issued a strong statement condemning the Action Plan, labelling it “an attempt to fundamentally undermine copyright as a private property right”.

While paying lip service to creator’s rights, the Plan does not address how creators can enforce these rights (other than through the creation of opt-out protocols, which stands the normal copyright procedure of seeking permission prior to usage on its head). The Strategy seems to lead to what has been described by many as a “use now, pay later” system, with little information on how payment would be calculated or implemented. On the other hand, prior, voluntary licensing of content for AI training is a solution that would respect the rights of Korea’s creators while providing the welcome revenue sharing and income stream for which the Strategy advocates. Strong content industries benefit AI development in Korea by encouraging continued creation of the valuable Korean language content so necessary to refine and improve AI models. Conversely, providing the tech industry with an escape hatch to avoid licensing by instituting a TDM exception is the surest way to kill a licensing market for AI content. It will only continue the legal uncertainty that the Presidential Council seems to feel is hindering AI development in Korea.

The one-sided formulation of the Strategy to date has provoked an inevitable negative reaction from Korea’s cultural industries. This is not surprising since the strategy of the tech industry, in Korea and elsewhere, is to avoid dealing with ministries directly responsible for culture and copyright and instead lobby industry, technology and science ministries to bring pressure for changes to copyright law. This adversarial stance is unfortunate as the content and tech industries need and can help each other. The Strategy needs to be amended so rather than throwing the cultural and copyright industries under the bus in the name of facilitating AI development, Korea provides the framework for a mutually beneficial and legally certain relationship. This is best done by upholding longstanding copyright principles and encouraging the growth of a voluntary licensing market for content used in AI training.

© Hugh Stephens, 2026. All Rights Reserved

Chinese (or is it Lunar?) New Year and Copyright

A festive design featuring a red background with gold and floral decorations, celebrating the Happy New Year 2026, themed around the Year of the Horse.

Image: Shutterstock

The China Media Group, (CMG) one of the world’s largest broadcasters, has just issued an announcement warning everyone, but mostly I suppose the Chinese-speaking world, that it retains the sole authority to license globally the mascots, logo, and creative products of its 2026 Spring Festival Gala, for both commercial and non-commercial purposes. According to this website, the Gala program which is broadcast each year in China on the eve of the Lunar New Year, “has been recognized by Guinness World Records as the most-watched annual television program on the planet”. Even bigger than the Super Bowl! This year, the Year of “Fire Horse”, the Gala will feature “four majestic ponies”. These equine mascots are apparently, “inspired by classic representations of horses across different periods of Chinese history” and are “adorned with classic elements of traditional Chinese clouds and thunder”. You’ve been warned. Don’t copy them. If you want to watch all the action, you can view the show here. (Check out the dancing warrior robots. If that doesn’t send a shiver down your spine, nothing will).

While using horse images to depict the Year of the Horse cannot, of course, be copyrighted, the CMG will have copyright on the specific horse designs it is using for its mascots. Lunar New Year (or should it be called “Chinese New Year”?) is big business, as hundreds of millions of people will be celebrating it. Gold coins and bars will be struck for collectors and countries around the world, from the US to the Isle of Man, will be issuing Chinese New Year animal-themed postage stamps. (The Hong Kong Postal Museum has a hilarious post outlining the political machinations surrounding the Year of the Pig postage stamp issued in 1970 by the British colonial authorities). From broadcasts to banquets, from music to mascots, the Sinosphere (and by that I also include Chinatowns around North America and the world) will go into a red-hued frenzy this year beginning on New Year’s Eve, February 16, and continuing for 16 days thereafter. The holiday period in China marks one of the most intense short term urban-to-rural migrations of people anywhere, with family members traditionally returning home to visit parents, children and other relatives and to perform traditional ceremonies. Rooted in tradition, this migration sees about 300 million people move from one end of China to the other. Rail networks in particular are strained to the limit. Visit China at some other time if you want to go there.

Entrepreneurial merchants will be quick to market equine-based trinkets and paraphernalia this year, and knockoffs of the CMG “majestic ponies” will no doubt be popular in flea markets around China. So just as Hasbro protects the copyright and trademarks on its “My Little Pony” franchise, CMG is sending warning that it will assert its rights, as it should.

Music is another area where copyright could come into play as people create New Year’s videos. This website (Soundstripe) has made a virtue of a necessity by plugging its royalty-free songs and playlists for “Festive Lunar New Year Videos”. And while we are on the topic, should the holiday be called “Lunar New Year” or “Chinese New Year”? It is of course based on the lunar calendar but also tied to the centuries old Chinese zodiac, with its 12 year animal based cycle.

The problem with the “Chinese New Year” (CNY) label, widely used in North America, is that it imposes a Chinese label on similar celebrations in other parts of East Asia, notably Korea (where it’s called Seollal) and Vietnam (where it’s called Tết), that also celebrate the holiday. China historically had a huge cultural influence over both countries which explains the common tradition, but in this day of political correctness (not to mention the Sino-Vietnam war in 1979 and ongoing difficult political relations between South Korea and China), it can be impolitic to refer to the holiday as “Chinese”. Korean-Australian K-pop artist Danielle Marsh found out the hard way when she asked her fans what they were doing for “Chinese” New Years. She had to apologize for the faux pas. This is all somewhat of a tempest in a teapot because its not even called Chinese New Year in China, where the holiday is referred to as “Spring Festival” (chun jie).

As noted, this is the Year of the (Fire) Horse, which is supposed to indicate resilience, progress and, of course prosperity. The zodiac is a goldmine for fortune-tellers and geomancers who are happy (for a fee) to provide advice to individuals based on their personal sign as to how to comport themselves in the Year of the Horse, Dragon, Snake, Monkey or whatever. Some animals are more propitious than others. Dragons are considered to be an elite sign, and who wants to be a Pig? However, all have their good and bad characteristics. For prospective Chinese couples, figuring out the compatibility of say, a Rat and a Rabbit, can be important not to mention how the Year of the Horse will affect that relationship.

Having been born in the Year of the Monkey, I was eager to find out what was in store for me in 2026, since horses and monkeys don’t seem to have much in common. I was relieved to learn from this zodiac website that “Monkeys enjoy romance and wealth opportunities in 2026, though career stress tests patience. With resilience and clear financial management, challenges turn into steady progress.” That is reassuring although I am not sure that my wife will be thrilled to hear of my “romance opportunities”. Wealth maybe.

Not much of this has a lot to do with copyright, but it is fun to write about traditions and festivals, and CNY is particularly fertile when it comes to images, music, food, design and other creative endeavours that make up the world of copyright. So, enjoy it. Hang up some red lanterns, put up red decals of harmonious characters, and eat some dumplings. However, if you are inclined to create some Year of the Horse images, make sure you don’t infringe the designs and mascots of the China Media Group. They have a long arm and just might come after you.

© Hugh Stephens, 2026. All Rights Reserved.  

Libraries Are Complaining About the Cost of Licensing E-Books (Again): Is There Any Justification?

An e-book reader displaying the text 'E-BOOK What book you will read today?' next to a stack of hardcover books and an open book.

Image: Shutterstock.com

Is it a coincidence that a story complaining about the cost of e-books in the budget of the Greater Victoria Public Library (GVPL) appeared in my local paper, the Times-Colonist, earlier this month only to be followed mere days later by an almost identical story that popped up in a news scan service I receive, but this time relating to the Washington, DC, Public Library? I suspect not. In the case of the GVPL, the library has to shell out $57.00 for a two-year licence for an e-book that costs $14.99 for an individual licence. Both the Canadian Library Association and its US counterpart, the American Library Association, have had this issue on their agenda for a few years now. The Canadian Urban Libraries Council, which represents more than fifty of the largest public library systems in Canada, has a Digital Content Working Group that advocates for “equitable, affordable, and sustainable access to digital content for public libraries across Canada.” Who could argue with that? But there is always a devil hiding in the detail.

The major difference between the two stories was that the GVPL was simply lamenting the budgetary impact of licensing e-books, which are in popular demand from borrowers, whereas the US story not only raised the cost issue for libraries but also referred to a local legislative initiative that would authorize market intervention by imposing restrictions on the District’s public library system, preventing it from licensing e-books from publishers that reportedly charge “excessive prices”. But what is excessive and what is reasonable when it comes to e-books, and can or should governments intervene in the market to regulate the price of a discretionary product like a book?

The DC legislation has not been adopted and if it passes, it may still never go into effect since it contains a proviso that implementation will take place only once ten other jurisdictions with a combined population of at least 50 million have enacted substantially similar laws. This is apparently to protect the DC Council from lawsuits and to try to build a national coalition to negotiate collectively with publishers. It also avoids the very real possibility that publishers could opt to not license e-books to the District of Columbia Public Library system. The bill would actually hurt libraries and their patrons by prohibiting the DC library system from entering into and renewing licensing agreements with publishers if those agreements contain terms that “restrict public access to books.” What does “restricting public access” mean? Are publishers not legally entitled to determine the terms under which their product is offered to various categories of users? Should publishers be legally required to license their product on terms arbitrarily set by government? Most licensing agreements, which are contracts, impose conditions governing how a licensed product can be used by different categories of users, such as (for a library) the number of times it can be loaned and how long the agreement lasts before it lapses and must be renewed. These terms are set by the entity offering the product, i.e. the publisher. There is no obligation on any prospective licensee to accept the terms. Products that are priced beyond what the market will accept will not succeed. The argument of the library community seems to be that libraries are somehow different, a public good, and therefore they should pay what individual consumers pay even though their use of the product is quite different.

The outline of the DC bill states that restricting public access includes “inflating” costs beyond what the public pays. Under standard licensing terms for digital books offered to the public, aka Joe and Jill Consumer, they pay less than libraries do for access to the same work. This has been the case for e-books since the early days of digital content, and it is not difficult to understand why. When a library buys a hard copy book, which it can do for the same price as the consumer (in fact, usually for less since library systems buy in volume and thus enjoy discounts), it can expect to lend that book for a limited period before it wears out and a replacement has to be purchased. There are other risks as well when hard copy works are circulated on loan, such as loss and damage. Moreover, while he majority of borrowers (in Victoria it is 55%) still generally prefer to borrow a hard copy version, there is “friction” in borrowing a physical book that limits the number of times a work is taken out. This friction is the unavoidable time and cost of physically accessing a library, such as parking or transit costs, deterrence from inclement weather or just sheer laziness. E-books, on the other hand, can be accessed with a click of a mouse. Each copy is perfect. No dog-eared or missing pages here. No borrowing “friction”.

While “friction” is an undesirable byproduct of the traditional library system, imposing constraints on borrowing physical products for some, from a commercial perspective it imposes a reasonable limit on use. The absence of “friction” where digital products are concerned not only makes things easier for the borrower, but it also reduces costs in other areas for libraries. E-books require virtually no physical storage space, and while some clients will go to a library to access an e-book, many do so remotely, thus reducing physical visitorship and the need for extended hours, etc. One of the key arguments put forward by publishers to justify the higher cost of e-book licences to libraries is that individual consumers cannot circulate digital copies to others (unless they physically lend the device on which their e-book is loaded) whereas lending to multiple users is the essential function of a library. An e-book licensed by a library for lending to multiple users is, in effect, a different product from the single-use product licensed to an individual consumer. Moreover the “perfect-every-time” perennial nature of an e-book eliminates the need for any book replacement over time. Combined with potential savings gained in other areas, the pleas of public libraries to have legislators impose restrictions on publishers have to be seen in context. That said, I am sure this will not stop library associations from trying to convince legislators to tilt negotiations in their favour.

The DC Council is modelling its legislation on a similar law passed last year in Connecticut. Like DC’s draft law, the Connecticut legislation will come into effect only when another state or states totalling seven million in population enact similar laws. For the record, Connecticut has a population of about 3.6 million people. Neighbouring New York state has a population of 20 million so if it goes the same route, the ball will start rolling. The caution of both DC and smaller jurisdictions like Connecticut is understandable because one response from publishers to legislation that restricts their ability to offer industry-standard contracts/licensing agreements could be non-availability of e-books for libraries in the affected areas. Libraries need to be careful what they wish for, since a heavy-handed approach by legislators could backfire.

Connecticut claims its legislation avoids the legal pitfalls that befell a 2022 law passed in Maryland that was blocked, on appeal from the American Association of Publishers and the Authors Guild, because the state law impinged on US federal copyright law. That state law required authors and publishers holding the rights to an e-book title to, among other things, offer unlimited copies of that title to public libraries in the state at an undetermined “reasonable price” when the title was offered to individual consumers. In effect it was tantamount to imposing a compulsory license on rightsholders and was rightly blocked by the courts. I wrote a long blog post on the e-book licensing situation at that time. You can read it here.

While the Maryland approach was overreach, the issue hasn’t gone away. Library budgets are under stress but that should not be used as an excuse to force subsidization from authors and publishers. As mentioned above, e-books never wear out and a widely circulated “frictionless” library e-book is not a direct substitute for the hard copy work that libraries used to buy–and still buy but in lesser amounts. It is a different product and to compare it to a hard copy book is to ignore commercial realities. While libraries are a public good, they still operate in the marketplace and affect the market for books, in some ways positively and in others negatively. Governments normally put their thumb on the scale of commercial negotiations only when there is market failure. This is far from the case today. The case for market intervention by government is weak, although I sympathize with the plight of acquisition librarians facing stretched budgets and trying to meet the increasing demand for e-books.

There are market limits to what publishers can charge libraries for e-books just there are market limits regarding what public libraries can pay. What is the appropriate licensing fee for an e-book configured for library use versus one sold to the individual reader? Is a multiple of three or four justified, or should it be less (or more?). An objective study would be helpful. Let’s hope there is room for negotiation that will fairly compensate authors and publishers while allowing public libraries to meet the growing demand of their clients for more digital works.

© Hugh Stephens 2026. All Rights Reserved

Canadians (and Anyone Else Outside the US): Beware the Annual Public Domain Hype

A black and white cartoon character resembling a mouse, wearing a hat and shorts, happily steering a ship's wheel.

Image: Public Domain

This is the time of year (the days and weeks after January 1) when, on a quiet news day, lazy journalists in Canada used to pick up and amplify a US based story about such and such a work falling out of copyright and into the public domain and write a story about it, complete with a grabbing headline, often to the effect that Mickey Mouse or Batman or The Great Gatsby or whoever is now “liberated from the chains of copyright”. The CBC did exactly that in 2024, producing a radio special on Steamboat Willie entering the public domain, completely ignoring the fact that all works created by Walt Disney and Ub Iwerks (which include the earliest editions of Steamboat) had already entered the public domain in Canada two years earlier, on January 1, 2022. Iwerks was co-author and joint rightsholder along with Disney for this work and as the co-author who lived the longest (he died in 1971; Disney in 1966) the term of copyright protection in Canada was based on the year he died plus, at the time, an additional 50 years. Thus, January 1, 2022 in Canada. As I wrote a couple of years ago (Canada is not the United States when it comes to Copyright: The Cases of Anne of Green Gables and Steamboat Willie (or Down the Copyright Rabbithole, Twice), sometimes works still under copyright protection in Canada are in the public domain in the US, and sometimes it is the reverse. Don’t assume. This law firm’s blog post (Gowlings) provides a good overview of what to watch out for.

The mistake of making the assumption that what happens in the US is automatically applicable to Canada is the unfortunate reality of being a cultural minnow living cheek by jowl with a content creation whale. This year I didn’t notice any of the reflected US public domain stories in the Canadian media, perhaps because the penny has finally dropped that public domain day in Canada will be a non-event until the year 2043 (no need for any hype), owing to the extension of Canada’s term of copyright protection from the life of the author plus 50 years to life plus 70 (for most works). Any works that had fallen into the public domain under Canada’s previous “life plus 50” term did not receive the additional term of protection but any works still copyright protected in Canada at the end of 2022 got another twenty years coverage before entering the public domain. Had Ub Iwerks died in 1972 instead of a year earlier, Steamboat Willie would have enjoyed another two decades of protection in Canada beyond what applies in the US, although it is doubtful whether the Walt Disney Company would have tried to enforce its rights under Canadian law.

Not only has Canada harmonized its current term of copyright protection with the US, EU, UK, and a number of other countries, (although there will always be discrepancies between the terms of protection afforded works in Canada versus those in the US for many years to come owing to the historical peculiarities of how the term of protection is calculated under US copyright law), there have also been fewer quiet news days in early 2026 thanks to the daily Donald Trump Reality Show. Moreover, there has been a surge in Canadian nationalism (and thus a greater awareness of cultural differences) as a result of the Donald’s 51st state taunts. (Prime Minister Mark Carney, an internationally recognized banker and financial executive seemed initially to enjoy Trump’s respect but since his Davos speech calling out the realities of the new world order, Carney, like his predecessor Justin Trudeau, has been demoted to the title of “Governor Carney” on Truth Social, apparently the current official channel for announcements of US government policy). So, journalists, if you want to write about what makes Canada different from the US, in addition to measuring distance in kilometers and saying “sorry” every time someone bumps into you, you could note that US and Canadian copyright laws are different. Similar in intent but not identical. For example, the US fair use doctrine with its unpredictable focus on transformative use does not apply in Canada, the US requirement for formal registration of copyright in order to bring legal action does not apply in Canada and, in particular, the complex (because of its convoluted history) US determination of when a particular work falls into the public domain does not apply in Canada.

This year, as it does every year, the Center for the Study of the Public Domain at Duke University’s Law School, published its Public Domain Day blog, highlighting all the works that fell into the US public domain on January 1, 2026. These include such well known works or characters as Agatha Christie’s The Murder at the Vicarage (protected in Canada until January 1, 2043) , Somerset Maugham’s Cakes and Ale (in the public domain in Canada since 2016), Blondie and Dagwood, nine additional Mickey Mouse cartoons, Dutch artist Piet Mondrian’s Composition No. II/Composition in Red, Blue, and Yellow, four songs by Ira and George Gershwin, and so on. Much is made of the fact that these works will be free to anyone to use, remix, copy and exploit but it’s not as if these works have been locked away in a closet, although their unlicensed use has been protected by copyright law. Copyright protection does not stop anyone from creating new works and while there may be limitations on hijacking Inspector Poirot there is nothing stopping aspiring writers from creating detective novels. There is another element worth noting as well. Particularly when it comes to copyrighted characters and cartoons, their later iterations may still be copyright protected in the US (because of the US baseline being date of publication plus a set number of years) not to mention protection offered by registered trademarks. Sometimes estates try to hang on to copyright protection at all costs, as appears to be happening in the US with Mondrian’s work. (It has been in the public domain in Canada since 1995, 50 years after Mondrian’s passing).

Once a work has entered the public domain it can be used in derivative works without permission. Has this resulted in a slate of new and creative works being produced for the benefit of mankind? Hardly. The usual result is for a brief surge of “edgy” productions incorporating a new public domain work, such as Steamboat Willie doing or saying things that Dear Old Uncle Walt (Disney) would never have countenanced. As I noted a couple of years ago, the “liberation” of copyright protected works has led to such triumphs as The Gay Gatsby, The Great Gatsby Undead (Zombie Edition) and the film Winnie the Pooh: Blood and Honey. So much for the public domain unleashing the juices of creativity.

For better or worse, copyright is not a perpetual property right. I support reasonable limitations on copyright protection including making a provision for works to enter the public domain after their prime exploitability has passed. This will vary by work with some works remaining evergreen, encouraging new investment into derivative works, updates, new editions, as well as providing ongoing returns to the estates of authors. However, at times there are situations where a work is long out of print and the rights-holder cannot be located, blocking a reprint. These situations can be dealt with through specific exceptions, much as fair use and fair dealing allow for specified unauthorized uses that do not damage the rights of the author.

To come back to the narrative that the public domain liberates content from the “shackles of copyright”, I contend this is nonsense. Beware the hype. And if you reside outside the US, don’t believe everything you read in the media regarding what works are in the public domain. You might be pleasantly surprised to find that a work has been in the public domain in your country for years (while Conan Doyle’s later works only entered the US public domain in 2023, they have been in the public domain in Canada since 1981). On the other hand, you might find the work you thought was free for adaptation based on what Duke University’s Center for the Study of the Public Domain says is way off base and it is still protected by copyright in your country of residence. Beware the hype and do your homework.

© Hugh Stephens, 2026. All Rights Reserved.

Delegating Research to AI is a Risky Proposition: The “Hallucination” Phenomenon (User Beware)

A graphic showing a cartoon robot head on a computer monitor with the text 'The World is Flat Because I Say So' in a playful font.

Image: Shutterstock (author modified)

It seems everyday new applications and new threats emerge from the AI world. This applies in particular to creators who see growing AI challenges to their livelihoods; graphic art and album covers spat out by AI generators; voice actors replaced by AI clones; authors struggling to make their works known in a sea of AI-generated slop; now AI artists are even making the Billboard charts. At the same time, AI has many other functions and produces a host of products that have little to do with artistic creation. In particular, it can be used as a crutch to assist and enable research in a wide range of fields. Today it is routinely used by everyone from school kids to law firms to health care researchers. And that is where the risks of mainlining AI are the most evident, because of the propensity of AI platforms to fabricate plausible sounding misinformation.

In a blog post earlier this year (AI’s Habit of Information Fabrication (“Hallucination”): Where’s the Human Factor?) I discussed some examples of law firms caught submitting non-existent case precedents in court as a result of sloppy legal research using AI. Judges have very limited tolerance for this practice, which wastes valuable court time, and they are increasingly imposing significant penalties—that is, if the fabricated information is actually spotted. The problem is not going away. This website maintained by Paris-based legal scholar Damien Charlotin has compiled a database of more than 550 legal cases in 25 countries where generative AI has produced hallucinated content.  These are typically fake citations, but also include other types of AI-generated arguments. The US wins the lottery at 373 cases, but Canada is second with 39. Even Papua-New Guinea has one case.

As you can well imagine, AI hallucinated results in health care could be fatal. As Dr. Peter Bonis, Chief Medical Officer at Wolters Kluwer Health points out, hallucination in the health care field has led to various consequences such as recommending surgery when it was not needed, advising that a specific drug could be safely stopped abruptly when this was known to be dangerous, avoiding recommending vaccinations based on known allergies even though it was safe to do so, proposing wrong starting treatments for patients with rheumatoid arthritis and so on. You get the picture. You don’t want your family doc using AI search for the remedy for whatever ails you. The fact that the models present incorrect information with such confidence, and that potentially dangerous incorrect information is embedded with a lot of correct information, makes proper use of AI outputs particularly challenging.

How is it that AI platforms consistently produce unreliable results? This MIT Sloan article identifies three elements;

  • Training data sources (the uneven quality of inputs, including pirated, biased and otherwise unreliable content)
  • Limitations of generative models (generative AI models are designed to predict the next word or sequence based on observed patterns and to generate plausible content, not to verify its accuracy)
  • Inherent Challenges in AI Design (The technology isn’t designed to differentiate between what’s true and what’s not true)

This is all pretty concerning if people are going to surrender personal judgement to AI and use it to cut corners without verification. One way to address part of the problem is to ensure the training data used is reliable and of high quality. That is where licensing of accurate, curated data and content as training inputs is important and that is why a licensing market is developing as AI companies seek out better quality data to distinguish their product from that of their competitors. This can be very helpful where the AI platform is limited to discrete areas of knowledge, such as in the medical field for example, where usage can be limited to professionals who are prepared to pay for a bespoke AI product and who are qualified to interpret the results properly. AI for the general public is another matter, and this is where most of the problems arise. Unfortunately, while improving the quality of training data helps reduce hallucinations, it does not completely eliminate them. As the New York Times has reported,

“Because the internet is filled with untruthful information, the technology learns to repeat the same untruths. And sometimes the chatbots make things up. They produce new text, combining billions of patterns in unexpected ways. This means even if they learned solely from text that is accurate, they may still generate something that is not.”

User beware. Nonetheless, better inputs lead to better outputs. As AI developers work to take their products to the next level by refining their training processes and making outputs more predictable and trustworthy, they will need access to curated, proprietorial content and closer collaboration with content owners. Dr. Bonis noted that for specialized areas like health care, AI companies will get better quality feedstock while creators of the content will receive funding allowing them to continue research. A virtuous circle.

Users bear a big responsibility to ensure AI is employed effectively. The mindless, unjudgemental use of AI to reach conclusions in areas where the user has little knowledge can be dangerous. By all means use AI as a tool to sort and categorize, but don’t rely on it to produce the answers on which substantive decisions will be based. Any sensible user of AI has a pretty good idea of the answer to the question before it is even asked. It is also a good idea to refine the question, so you narrow the range of possibilities.

Some proprietary AI models offer RAG (Retrieval Augmented Generation) where the AI will retrieve relevant information from trusted sources to supplement its preliminary analysis. This can increase reliability. However RAG, where the AI goes after specific inputs to bolster its results, can also expose AI developers to charges of copyright infringement, as is currently the case with Canadian AI company, Cohere, which is being sued by a number of newspaper publishers, including the Toronto Star, for copyright infringement. As Canadian lawyer Barry Sookman has  pointed out in a recent blog, use of RAG can create risk for the AI platform. In the case of Cohere, when its RAG feature was switched on, it reproduced large amounts of almost verbatim text pulled directly from the litigating news sources. But if the RAG function was switched off, it produced fabricated information (hallucinations) yet still identified this false information as coming from an identified reliable news source, leading to charges of trademark dilution. The value of the brand was diminished by the attribution of false information to it. This trademark dilution issue is also part of the New York Times case against OpenAI.

At the end of the day, it is a case of user beware as a recent case in Newfoundland demonstrates well. The Government of Newfoundland commissioned an in-depth study on the future of education in the province. The 410 page report containing over 110 recommendations, authored by two university professors, was released with great fanfare at the end of August. No doubt a great deal of careful research had gone into producing the study over the 18-month production period. But then cracks started appearing in the edifice. It was chock full of made-up citations. The more people started checking, the more they found. The Department of Education and Early Childhood Development tried to whitewash the issue by saying it was aware of a “small number of potential errors in citations” in the report. But even one fabricated citation is one too many! If you search for the report online now you get the classic “404 Not Found” message. A lot of work has potentially gone down the drain, and possibly the credibility of two academics has been destroyed by careless use of AI. This is a cautionary tale that I have no doubt will be repeated.

In fact, it was repeated just a few days later. It seems Newfoundland is particularly prone to victimization by hallucinating AI platforms. After the education report debacle, new reports have surfaced that a $1.5 million study on the health care system conducted by none other than Deloitte also contains fabricated information included made up references. The opposition party is demanding the government insist on a refund.

In our rush to embrace AI, many seem to have forgotten the value of human creativity and judgement. Coming back to the creative industries and AI, some of those whose livelihoods may be threatened by this new phenomenon are bravely trying to find a silver lining. Some voice actors are generating an additional revenue stream by licensing their voice clips for AI training, and many graphic artists use AI as an assist. Are they putting themselves out of work in the long run or are they simply adapting? The jury is still out, but the generally low quality of AI produced art, music and literature, as well as the ongoing problem of hallucination, suggests that there will always be a need for real human input. Anyone planning on substituting AI for “real work” had better think again.

© Hugh Stephens, 2025. All Rights Reserved.

Paywalls and News Publishing: There Should be No Ambiguities

An illustration of a laptop displaying a padlock icon, surrounded by images, documents, and a credit card, symbolizing online content security and paywalls.

Image: Shutterstock.com

In trying to search for the right analogy to explain the obvious,–i.e. if a news organization puts up a paywall, it is illegal to bypass or hack it to get at the content and, if you’ve paid for access, that doesn’t mean you can share it with all your friends–I have come up with the old-fashioned movie ticket as the comparator. When there is a show at the local cinema you want to see, there is normally only one legal way to watch it. Buy a ticket. And once you have used your ticket to watch the show, you don’t get to give it to someone else to see the next showing, and the next, and the next. Perhaps this is all too obvious, yet people seem to have great difficulty in getting their heads around the simple fact of what a news site paywall is, and why it is there. It’s really pretty simple. It is there to provide access to content (like a ticket) but also to limit access (for those who don’t have a ticket). It is the basic element of the online business model, for news access certainly but also for other forms of content, such as streaming entertainment.

I don’t understand why some people think they should have free access to content that others pay for. There is always someone who wants to beat the system and then thinks up some excuse to justify their actions. I freely admit that paywalls can be annoying, especially if you are surfing the web and come across a random article that you want to read in the Moose Jaw Monitor or the Peoria Progress. It’s almost always all or nothing. No free samples; just an annual subscription, although likely discounted for the first year. But if all you want is that one article there never seems to be a “pay by the item” option. It’s all or nothing. I have come to the conclusion that in most such cases I can either live without it or sometimes, if I search hard enough, I can find the same thing elsewhere, unpaywalled. What I don’t do is hack it.

A recent discussion of the ethics of paywalls examined the thorny question of whether it was ok to cheat—but just once in a while and under certain circumstances. The unconvincing conclusion: it depends. However, if you believe in the value of curated news–and most people do although they are remarkably resistant to paying for it (a recent Pew Research Center survey indicated that 83% of Americans had not paid for news in the past year; in Canada the numbers are comparable with 15% saying they were willing to pay, up from 11% a year earlier)—then it is only logical that the more free rides people take, the less responsible news coverage is going to be produced. You are eating your own seed grain. As someone put it, the garbage is free and the quality stuff has to be paid for.

The most recent example of success in combatting paywall-busters was the recent announcement that the News Media Alliance, the trade association in the US for major news publishers, had secured the removal of a website that existed to enable users to bypass paywalls, known as 12ft.io. It was self-described as a 12 ft. ladder to get over a 10 ft. wall. According to an article in the Verge, the site also allowed users to view webpages without ads, trackers, or pop-ups by disguising a user’s browser as a web crawler, giving them unfettered access to a webpage’s contents. Now it is out of business. The Alliance doesn’t say how it achieved this feat but does say that it will “continue to take similar actions against other purveyors of unauthorized paywall bypassing technologies.”

While certain elements of the public (academics? other journalists? researchers?) seem to think they can lay claim to justifications to bypass paywalls, an act that is illegal in both the US and Canada if a “technological protection measure” (TPM), aka a digital lock, is circumvented, the most egregious example of paywall-busting is the Government of Canada itself, the same government that is responsible for the Copyright Act. As I have noted a couple of times, (“The integrity of journalism paywalls is under threat. The Government of Canada should settle the Blacklock’s case”; “Does the Trudeau government really support Canadian media? Saying One Thing but Doing Another”), if the Government of Canada, which spends millions on media and communications, cannot be bothered to obtain a licence to access paywall-protected material, how can they expect ordinary citizens to respect paywalls.

 The issue is the $148 individual subscription taken out by an employee of Parks Canada back in 2013, a subscription that the Government of Canada through the Attorney-General argues should allow it to reproduce and pass around individual articles within a large government department without obtaining an institutional subscription. This all hinges on a complicated case, originally brought by Blacklock’s Reporter, an online investigative journalism enterprise, but then pursued by the Crown after Blacklock’s withdrew, in which the A-G argued that it was entitled to access the paywalled content on the basis of fair dealing. While it is illegal to circumvent a TPM/digital lock for the purpose of accessing TPM-protected content, the issue was whether a password constitutes a TPM. Logically, I think most people would assume that it does, but the judge ruled that evidence had not been presented to conclude that was the case.

One line of argument is that a password is not a digital lock; rather it is a digital key to a digital lock (TPM). Therefore if someone licitly obtains the key (the password), are they entitled to share it with others as long as the purpose of the sharing is for a fair dealing purpose, such as research or education? That is the nub of the issue. Some observers proclaimed that this case proved that fair dealing trumped or allowed the bypassing of a TPM. That was not the court’s conclusion, as I pointed out (here) but the ruling effectively gutted password protection for businesses. A recent internal memorandum produced for the Minister of Canadian Identity and Culture by his department noted that “The use of passwords to limit access to copyright protected content is a common business practice among online platforms including news sites, streaming services and video game digital distribution services,” …“Rights holders may be concerned that passwords and paywalls are no longer seen as effective technological protection measures.”

The ruling is now under appeal, with a decision expected later this fall. Blacklock’s is a small David pitted against the taxpayer-funded, deep-pocketed Goliath of the Government of Canada, but I understand they may be getting some financial help from other paywall-dependent businesses. I hope so. The right thing to do would be for the Government of Canada to settle with Blacklock’s but maybe this wouldn’t remove ambiguities about the role of paywalls. An appeal court ruling may be needed. Stay tuned.

In the meantime, inconvenient as it may be, and recognizing that it is impossible to subscribe to everything you could possibly want at any given time, respect the integrity and the work of the journalists and their employers who bring you curated news, commentary and valuable reportage. Pay for what you can–and play by the rules for the rest.

© Hugh Stephens, 2025. All Rights Reserved.  

CanLII v CasewayAI: Defendant Trots Out AI Industry’s Misinformation and Scare Tactics (But Don’t Panic, Canada)

Image: Pixabay

Last month I highlighted the first AI/Copyright case in Canada to reach the courts, CanLII v CasewayAI. CanLII, (the Canadian Legal Information Institute), a non-profit established in 2001 by the Federation of Law Societies of Canada, sued 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 which Caseway allegedly used to populate its AI based services. Now the principal of CasewayAI, Alistair Vigier, through an article (Don’t Scare AI Companies Away, Canada – They’re Building the Future) published in Techcouver, has responded publicly by trotting out many of the tired and specious arguments put forward by the AI industry to justify the unauthorized “taking” of copyrighted content to use in or to train generative AI models. Let’s have a closer look at these arguments.

Vigier opens by referencing another AI/Copyright case in Canada where a consortium of Canadian media companies is suing OpenAI for copyright infringement. He claims this is all based on a misunderstanding of how AI training works, stating that “AI systems like OpenAI rely on publicly available data to learn and improve. This does not equate to stealing content.” Whether data is “publicly available” or not is irrelevant when it comes to determining whether copyright infringement (aka stealing content) is concerned. Books in libraries are publicly available, or so is a book that you purchase in a bookstore, or content on the internet that is not behind a paywall. (It is worth noting that the Canadian media companies also claim that OpenAI circumvented their paywalls to access their content when copying it). But in none of these cases is copying permitted unless the copying falls within a fair dealing exception, which is very precise in its definition. Labelling copied material as “publicly available” is a red herring.

Vigier’s next argument is to equate the ingestion of content by various AI development models with a human being reading a book. We know that humans enhance their knowledge through reading and are thus able, presumably, to better reason based on the content they have absorbed. Vigier says, “This is how AI works. The AI “reads” as much as it can, gets really “smart,” and then explains what it knows when you ask it a question. Like a human learns from reading the news, so does an AI.”

Really? A human does not make a copy, not even a temporary copy, of the content although some elements of the content are no doubt retained in the human brain. But AI operates differently. It makes a copy of the content. This should be beyond dispute although the AI industry continues to muddy the waters by claiming that when content is “ingested” it is converted to numeric data and is thus not actually copied. This is a fallacious argument. Just because the form changes, this does not mean there is no reproduction. When you make a digital copy of a book, there is still reproduction even though the digital form is different from the original hard copy version. When a work is converted to data, the content is still represented in the dataset.

Vigier dubiously states, with regard to OpenAI, “OpenAI’s models do not reproduce articles verbatim; they process vast datasets to identify patterns, enabling insights and efficiency.” Apart from the fact that the New York Times in its separate lawsuit in the US has been able to demonstrate that by typing in leads of articles, it can prompt OpenAI to reproduce verbatim the rest of the article (OpenAI claimed that the Times “tricked” the algorithm), copying is copying even if the result of the copying is somewhat different from the original. The Copyright Act is crystal clear on this point. Section 3 (1) of the Act states that, “For the purposes of this Act, copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever…“. If copyright protected content is reproduced in its entirety without permission for a commercial purpose (eg for AI training), that is infringement, unless the use qualifies as a fair dealing under Canadian law or fair use in the US.

The issue of whether ingestion of content to train an AI application results in copying (reproduction) has been carefully studied and documented. One of the most thorough examples is a recent SSRN (Social Science Research Network) paper, entitled, “The Heart of the Matter: Copyright, AI Training, and LLMs” with noted scholar Daniel Gervais (a Canadian by the way) of Vanderbilt University as lead author. The article goes into a detailed discussion on how copying of content occurs during AI scraping to build a Large Language Model (LLM), including the stages of tokenization, embedding, leading to reward modelling and reinforcement learning. The section of the article explaining how copying occurs (pp. 1-6) is dense, technical text but the conclusion is clear, “LLMs make copies of the documents on which they are trained, and this copying takes various forms, and as a result, with appropriate prompting, applications that use the LLMs are able to reproduce original works.” A shorter (and earlier) version explaining how the LLM copyright process works can be found in this article (“Heart of the Matter: Demystifying Copying in the Training of LLMs“), produced by the Copyright Clearance Center in the US. It is also worth noting that these explanations refer only to ingestion of text. AI models that train on images and music are even more likely to produce exact or close-to-exact reproductions of some of the works they have been built and trained on.

So much for the misinformation in Vigier’s article. Now to the scare tactics. He says that the recent Canadian media lawsuit against OpenAI sends a negative message to innovators that Canada may not be open to AI development.

“If Canada wishes to remain relevant in this (AI) sector, it must balance protecting intellectual property and promoting technological progress.”

The fact that there are currently more than 30 lawsuits in the US, including the seminal New York Times v OpenAI case, does not seem to have slowed down the AI companies in the US. In the UK, legislation has been introduced that would, according to British media reports, “ensure that operators of web crawlers (internet bots that copy content to train GAI, generative AI) and GAI firms themselves comply with existing UK copyright law. These amendments would provide creators with crucial transparency regarding how their content is copied and used, ensuring tech firms are held to account in cases of copyright infringement.” There is lots of AI innovation ongoing in Britain.

The Australian Senate Select Committee Report on Adopting AI has recommended, among other findings, that there be mandatory transparency requirements and compensation mechanisms for rightsholders. The EU is already way out in front on this issue. Its new AI Act stipulates that providers of AI generative models will be required to provide a detailed summary of content used for training in a way that allows rightsholders to exercise and enforce their rights under EU law. Even India now has its own version of the US and Canadian media cases against OpenAI. (OpenAI’s defence in part is based on the argument that no copying took place in India because no OpenAI servers are located there!)

If that is what the “competition” is doing, who does Vigier cite as being the jurisdictions most likely to attract innovators away from Canada? Why, it is those AI powerhouses of Switzerland, Dubai—and the Bahamas!

The argument that if legislators and the courts don’t give AI innovators a free pass on helping themselves to copyrighted content for AI training purposes, this will either slow down innovation or chase it elsewhere is a common fearmongering strategy of the AI industry. This is a race-to-the-bottom mentality whereby content industries are thrown under the AI bus. Vigier, having been the subject of his own lawsuit, argues that instead of resorting to litigation, the Canadian media companies should have sought a licensing solution. But the fact that no licensing agreement was reached with OpenAI is undoubtedly the reason for the lawsuit in the first place. That is certainly the reason behind the NYT v OpenAI lawsuit in the US; licensing negotiations broke down. If someone has taken your content without authorization, and then offers you pennies on the dollar in comparison to what that content is actually worth, then the stage for a lawsuit is set.

In explaining CasewayAI’s position in the litigation brought by CanLII, Vigier says that Caseway approached CanLII with an offer to collaborate but was rebuffed. As a result they developed other extensive web crawling technology that pulled the needed material from elsewhere. (Where exactly the material was downloaded from is the crux of the matter). Regardless, this makes it sound as if it was CanLII’s fault for refusing to share their content. Surely a rightsholder has the right to determine the terms on which their content is to be shared with others, if at all.

The fact that Caseway went to CanLII in the first place suggests that CanLII had developed the content that Caseway wanted. Caseway claims the material it accessed was on the public record, such as court documents and decisions. CanLII, on the other hand, claims that it had reviewed, indexed, analyzed, curated and otherwise enhanced the content in question, thus adding a wrapping of copyright protection to what otherwise would be public documents. Who is right, and whether the material was scraped from CanLII’s website without authorization, will be determined by the BC Supreme Court.

If the material taken by CasewayAI was not copyright protected, they are in the clear, at least with respect to copyright infringement. That is quite different, however, from arguing that no copying takes place during AI training or that if rightsholders use the courts to protect their rights, Canada will be a laggard when it comes to AI development. Robust AI development needs to go hand in hand with robust copyright protection for creators, with an appropriate sharing of the spoils of the new wealth generated from the creative work of authors, artists, musicians and other rightsholders. To say, as Vigier does in his concluding paragraph that;

“Canada has a choice to make. Will we embrace AI as the transformative force it is, or will we let fear and litigation stifle innovation? The lawsuits against Caseway and OpenAI message tech companies: you’re not welcome here. If this continues, Canada won’t just lose its AI startups; it will lose the future of job creation.”

What sheer self-interested nonsense!. This is fearmongering of the worst kind, based on an inaccurate and misinformed knowledge of how AI is developed and trained, that moreover impugns the legitimate right of a rightsholder to seek the protection of the law to protect their creativity and investment in content. Vigier might be correct when he says that licensing of content is a win/win for both parties. I agree with that. But licensing negotiations are about money and conditions of use and require willing parties on both sides. When licensing discussions break down, or when one party decides to do an end run on licensing because they have been rebuffed, then the way to gain clarity is through the courts whose job it is to interpret what the legislation means.

Canada still needs to come to grips with the question of how copyrighted content will interface with AI development. As I noted earlier, both sides in the debate made their cases in the public consultation launched a year ago, but since then there has been no movement in Ottawa. The law could be strengthened to ensure adequate protection of rightsholder interests in an age of AI, resulting in facilitating licensing solutions. In the meantime, misinformation and scare tactics need to be called out for what they are.

Adequate protection for rightsholders does not mean the end of AI innovation or investment in Canada. There is no need for panic. We can walk and chew gum at the same time.

© 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.