Copyright – Hugh Stephens Blog

AI Training and Copyright: Australia Gets it Right—Now it’s Canada’s Turn

Flags of Australia and Canada displayed side by side, showcasing their national colors and symbols.

Image: Shutterstock

In early June Canada issued its national AI strategy paper, “AI for All”. As I noted in a blog post at the time, while the strategy covered many elements of AI in its 50 pages outlining policy objectives and planned actions, it managed to avoid using the word “copyright” even once. Australia has just come out with its own updated AI policy statement “AI in Australia’s interest”, which builds on its own “National AI Plan”, released last December. But whereas the Carney government in its AI strategy managed to completely avoid putting copyright into the AI equation, Prime Minister Albanese, after discussing the importance of developing AI for Australia, had this to say;

“But let me make this crystal clear: not everything produced in Australia is up for grabs.

Not at all.

Australian writers, musicians, artists and journalists must retain ownership and control of their work.

Our laws will spell that out, plain as day.

An artist’s creative endeavour is their work and their property.

No company should use Australian books, music, art or news to build or train AI without the artist’s control.

That includes the artist’s control of the price and value of their work.

Anything less, is theft.”

Blunt, clear and refreshing. If Australia can protect its cultural community while promoting policies for sensible AI adoption and development, then so can Canada.

Both Canada and Australia currently have no Text and Data Mining (TDM) exception in their copyright law. This legal loophole would allow AI developers to appropriate content without permission for training purposes. In both countries there have been calls from the tech community to introduce a TDM exception, a carte blanche that would allow AI companies to ingest copyrighted content without authorization, payment or even acknowledgement. In its December “National AI Plan”, which is much more analogous to Canada’s “AI for All” than Albanese’s recent short AI policy statement–in that it outlined a range of detailed policy proposals for AI adoption in Australia– the Australian government nonetheless managed to grasp the copyright nettle unambiguously.

Among the issues highlighted under “AI Risks and Harms” was the following:

“Reviewing application of copyright law in AI contexts: The Attorney-General’s Department is engaging with stakeholders through the Copyright and AI Reference Group to consult on possible updates to Australia’s copyright laws as they relate to AI. The government has provided certainty to Australian creators and media workers by ruling out a text and data mining exception in Australian copyright law” (emphasis added)

Just as the Australian government has sensibly ruled out a TDM option. Canada needs to do the same, as called for Canadian cultural umbrella groups, such as the Coalition for Diversity of Cultural Expression (CDCE).

So far Canada has danced around the issue. Heritage and Identity Minister Marc Miller has said that “the current copyright law does and should protect those that have created material, and people need to be compensated properly”, but he is just one minister among several. Evan Solomon, Minister of Artificial Intelligence and Digital Innovation, and Minister of Industry Melanie Joly, both have a big piece of this file. One can expect that both can be counted on to be more sympathetic to tech bros than cultural mavens. What is needed is a prime ministerial pronouncement clarifying that Canada’s creative community–artists, writers, publishers, musicians, filmmakers, photographers, journalists and more– is not going to be thrown under the bus on the pretence of keeping Canada competitive in the global AI game.

In the wake of Australia’s announcement that a TDM exception was off the table, the tech industry tried a new approach by suggesting the creation of a centralized fund that would be used to compensate rightsholders for the permissionless use of their works in AI training. Specifically, AI company Anthropic reportedly tied a proposed $15 billion USD ($21.6 billion AUD) investment in data centres in Australia to creation of the creatives fund in order to allow to access Australian content without licensing or negotiation with rightsholders. Australia’s creative community quickly mobilized. Their concerns were heard. Along with setting clear guardrails ruling out the unauthorized use of copyrighted creative works, Albanese has created a new Office of AI within the Prime Minister’s Office, recognizing the need for policy coordination given the breadth of AI’s policy impact. This is something that Canada might consider. It has Evan Solomon, Minister of Artificial Intelligence and Digital Innovation, but there seem to be very few cultural community voices within Solomon’s hearing range.

Australia has the same goal as Canada of getting its fair share of the AI pie while managing AI adoption and its impact on society. But there is one big difference. In so doing, the Australian government has made it clear it will pursue its AI goals while simultaneously respecting and protecting its culture and its creators. Canada’s cultural and creative community deserves no less consideration.

Litigation vs. Licensing for AI Training

Scrabble tiles spelling 'LITIGATION vs LICENSING' on a game board.

Image: Author

There is an ongoing struggle between the tech world of AI training and the cultural world of content creation. It has led to lots of litigation but also an increasing number of licensing agreements, the obvious market solution. Litigation has helped convince AI companies to share some of the wealth by pursuing licensing. Yet the AI world continues to try to find ways to avoid the basic step of seeking permission from rightsholders for using their valuable content to create their products.

Anyone who has seen the striking graphic “Who is Suing Whom in AI”, created by the design website Information is Beautiful, will be struck by the enormity and breadth of the issue which is so cleverly displayed, with the big AI developers such as Perplexity, Anthropic, Meta, Google, Open AI, Midjourney, Cohere and others at the centre with the creators (every content entity from Conde Nast, Getty Images, Universal Music Group, CNN, Disney and Thomson Reuters to Elsevier, Dow Jones, New York Times and others) ranged around the periphery, a stunning visual encompassing more than 100 lawsuits in the United States. That graphic was up-to-date as of June 26 of this year. Since then, at least one more major lawsuit has been filed, by a group of textbook authors against Meta. The graphic does not include the first such case in Canada where a group of media organizations (Canadian Press, Torstar, The Globe and Mail, Postmedia and CBC/Radio-Canada) is suing OpenAI, or the Getty Images case in the UK, or indeed any cases outside the US. From this graphic, it would seem that to resolve the issue of how copyrighted content is going to be used in AI development and training, litigation is the inevitable route. But is it?

As far as I am aware, Information is Beautiful has not created a similar graphic to display the range of licensing deals that have taken place, many of them between some of the same actors that appear on the litigation chart. If they did it would be similar, but encompassing even more licensing agreements than lawsuits. Licensing deals are being struck so frequently it is just as hard to keep up with them as it is to track all the litigation underway. The University of Glasgow’s CREATe Centre says it has documented 274 licensing deals and has a chart that tracks 109 of them. Whatever the number, it is a lot and it is growing. That is not to say that the AI industry has finally accepted the need to pay for the content they are using to create their products, just as they pay for software engineers or data processing capacity. This is where the link between litigation and licensing becomes interesting.

In a perfect world, AI developers would obtain their inputs through the market on the basis of permission, which would encompass both compensation (in most cases) plus transparency or accountability, i.e. documenting what content was used. But we don’t live in a perfect world, which is why we have the rule of law and courts to enforce those laws. In some cases, AI platforms did begin negotiations with rightsholders but when it was not possible to reach an agreement, the AI industry switched tactics and took the content anyway, arguing it was legal to do so for a variety of reasons. This is precisely the scenario that led to the New York Times suing OpenAI. These cases are even more egregious because there was initially a tacit acknowledgement by the user that the content had value. Then, when the price or conditions did not suit the potential licencee, suddenly it was okay to take the content anyway under the guise of fair use. Various arguments have been deployed ranging from the claim that no copying actually occurs, to the dubious assertion that what is copied is data not content, to the invocation of the US “transformation” doctrine.

On the issue of copying, a study by the Atlantic (AI’s Memorization Crisis: Large language models don’t “learn”—they copy. And that could change everything for the tech industry) convincingly demonstrated the uncomfortable truth that LLMs can reproduce long excerpts from books they have been trained on. The inputs are not just ones and zeros, they are content— someone else’s content that was taken without permission. Whether the use was fair according to US fair use interpretations is still an open question. US courts and other countries are trying to come to grips with this issue. In countries such as Canada or Australia, where there is no statutory copyright exception for Text and Data Mining (TDM) that would permit permissionless AI training on content, the AI industry has been floating various workaround proposals. The “incentives” would include (in Australia) establishing a government-managed fund to compensate rightsholders according to some sort of formula, plus investments in AI data centres. What is missing from proposals such as this is the concept of permission from those who actually own the content, or even discussion of the proposal with them. As Prof. Rod Sims, former Chair of Australian Competition and Consumer Commission, put it in a recent opinion piece in Canada’s National Post, “what other sector refuses to negotiate with suppliers and instead goes to government to bypass such a step?”

Let me use a food industry analogy to make the point even more clearly. When you run a restaurant you have labour costs, rent, taxes, etc. and the cost of ingredients to consider. You don’t get to raid the farmer’s field to obtain your inputs for free, just because you are able to root out crops without the farmer being able to stop you or even know it is happening. Setting up a fund to “compensate” farmers for their stolen crops, on terms set by the government rather than the market, doesn’t even begin to make this right. Legalization of this theft would remove any possibility of litigation or legal protection, for the farmer—or for content owners. Litigation, while protracted, costly and potentially leading to uncertain outcomes, is nonetheless the stick that is needed to facilitate licensing.

The obvious route for the AI industry to take is to license the content they want to use. That may not seem as “efficient” as just taking it for free but with the threat of litigation hanging over the proceedings, licensing suddenly becomes the more efficient alternative. It is also win/win for both AI developers and the content industries. And, it is simply the “right thing to do”.

I am pleased to note that this blog was recognized by Feedspot as being among the “40 Best Copyright Blogs to Follow in 2026”. In fact, we hit the middle of the pack at No. 20. I am honoured to be included in such distinguished company.

Feedspot is an RSS Reader that lets readers subscribe to blogs, news sites, and any website they wish to follow.

Copyright Developments in New Zealand: Going in the Right Direction

Flag of New Zealand featuring a blue field with the Union Jack in the canton and four red stars with white borders representing the Southern Cross constellation.

Image: Wikimedia (Public domain)

New Zealand is proposing to introduce a number of optional updates to its Copyright Act when it enacts required changes to bring legislation into compliance with two treaties it has signed. This is good news for creators. Still to be addressed, however, is the thorny issue of AI training on copyrighted content.

New Zealand needs to make some required legislative changes to its Copyright ordinance as part of implementing two treaties it has signed, the UK-New Zealand Free Trade Agreement (FTA) and New Zealand’s FTA with the European Union. In both cases New Zealand has agreed to extend its term of copyright protection from life of the author plus 50 years to “life plus 70”, as well as preventing the circumvention of TPMs (technical protection measures, aka “digital locks”) except in specified narrow situations. These provisions must be enacted by May of 2028. They will bring New Zealand’s copyright law into alignment with most of its major trading partners. However, while there is a legal requirement to address the above two issues, the Ministry of Business, Innovation and Employment (MBIE) has proposed that a number of other copyright issues also be addressed as part of the process of updating the Act. These include;

supporting not-for-profit gallery, library, archive and museum (GLAM) organisations to preserve and provide access to collections, including by allowing use of orphan works, making digital copies for preservation and access, and applying research and private study copying rules across all GLAM organisations, with safeguards for copyright owners
introducing a new fair dealing exception for parody and satire, applying across a wide range of works while maintaining authors’ moral rights
providing courts with a framework to order internet service providers to block access to overseas websites primarily engaged in copyright infringement, with appropriate safeguards and flexibility
removing an outdated peer-to-peer file-sharing enforcement regime that is no longer used, reducing compliance costs for internet service providers
enabling copyright licensing organisations to take collective action on behalf of copyright owners to prevent infringement
clarifying that the first distribution right is only exhausted where the copyright owner has consented to the overseas sale of copies, supporting control over parallel imports of infringing copies
changing the default rule for commissioned works so that creators are the first copyright owners unless agreed otherwise
extending resale royalty rights for visual artists by 20 years to align with the longer copyright term.

It is encouraging to see New Zealand take this opportunity to review and update its copyright framework while it implements the needed changes to meet its trade agreement commitments. Canada was also required to extend its copyright term as a result of the new NAFTA agreement with the United States, and it did so, at the last minute. However, it did the minimum required and passed on the opportunity to address wider issues, of which many have been identified by Parliamentary committees, while more are coming forward as a result of developments in AI.

The proposed changes in New Zealand should be welcomed by the copyright and copyright-using community. They will provide legal protection for the sort of digital replication that the GLAM sector needs to preserve older and orphan works, although more information on what how the research and private copy rules will be implemented is needed. Widening fair dealing to include satire and parody has been done in a number of jurisdictions, and this will bring New Zealand in line with other Commonwealth countries like Australia, Canada and the UK that have such exceptions (“parody, caricature, and pastiche” in the wording of the UK legislation). In the application of the defence, New Zealand courts should follow the Australian lead, where courts have kept a tight rein on this defence. Parody is a tricky exception to invoke, as a recent UK case well illustrates. The moral rights of the author are also a factor to consider.

For the first time, site-blocking (that is, requiring ISPs to block pirate offshore websites, after legal review) will have a firm foundation in New Zealand law. Australia has had such legislation on the books for more than a decade, and the UK for longer than that. Both the UK and EU treaties required New Zealand to allow the courts to issue injunctions “against an intermediary whose services are used by a third party to infringe intellectual property rights.” Canada has dealt with this issue through the courts exercising their inherent jurisdiction without the enactment of specific site-blocking legislation, with initial challenges from some ISPs being dismissed on appeal. The process has now become routine. It seems the New Zealand government intends to ensure clarity by amending copyright legislation to “provide courts with a framework to order internet service providers to block access to overseas websites”. IP scholars in New Zealand, such as Prof. Graeme Austin, have been calling for the government to take the lead. It seems they have been heard.

The empowering of collective management organizations (CMOs) to take legal action against infringers on behalf of their members is also an important step. Under present provisions, CMOs cannot bring actions because they do not hold the rights to individual works. This requires multiple authors either to take individual actions or join in a joint action. Given the cost of such an exercise, this is not feasible (large publishers who have licensed rights from authors may be in a position to do this, but authors themselves are hamstrung). Giving their collective management organization the right to represent them is a positive move. This is a move that Canada could well replicate to enable CMOs like Access Copyright to represent authors.

Changing the default rule for commissioned works will, for example, give photographers greater control over their work. Clients can contract for the right to display copies of the work but the copyright in the original work will belong to the creator. The same is true for artistic works unless there is a specific agreement that the work is created under an employment contract. Canada enacted this provision in 2012 when it passed the Copyright Modernization Act. Extending the resale royalty rights for authors to match the longer copyright term keeps these two provisions in alignment. New Zealand, like Australia and the UK, and EU member states, has enacted an Artists’ Resale Right (ARR), which allows a small portion of the proceeds of a resale of artwork through a professional dealer to be paid to the original artist (or their estate). Canada has been promising for several years to enact an ARR but has not yet done so.

The one big issue this round of copyright amendments will not address is use of copyrighted content for AI training. That is a rapidly evolving issue in many countries and is a moving target. The solution, as suggested in this article by Prof. Austin, is to foster market solutions, that is facilitating the licensing of content to AI developers. The way not to do this is to provide a wide exemption for AI training, as many in the tech world are advocating, but to ensure that rightsholders have the right to protect their content and to grant access to it on terms that they agree to. This is already happening in a number of areas such as licensing agreements between major publishers, news enterprises, and the AI industry, but individual authors are still being left out of the discussions.

Australia has just ruled out creating a fair dealing exemption for AI training (known as the TDM or Text and Data Mining exemption). Even the notoriously anti-copyright Productivity Commission supports this position. Such an exemption would remove any incentive for AI developers to negotiate with rightsholders for use of content. Hopefully New Zealand will follow suit in this regard. While we will have to wait for further developments when it comes to dealing with AI issues, the current set of proposals will be very useful in renewing and updating the copyright framework in New Zealand.

The Artists’ Resale Right in Canada: Many Promises but No Delivery (Let’s Get on With It)

A speaker in a suit addresses an audience in an art gallery, while attendees hold up numbered paddles during a bidding event.

Image: Shutterstock

The recent sale, or re-sale to be more exact, for $5.7 million of a 1948 painting by the late BC artist E.J. Hughes (“Coastal Boats Near Sidney, BC”), who spent much of his life in relative poverty, reminded me that the oft-promised but yet-to-be-delivered Artist’s Resale Right (ARR) in Canada is still in limbo. Canadian artists are still waiting for its implementation. Introduction of an ARR was first discussed more than a decade ago when in 2013 Independent MP Pierre Nantel introduced a motion to this effect. Later a private member’s bill was introduced by Liberal MP Scott Simms, but it did not get to Second Reading. In 2019, a Parliamentary Committee (Shifting Paradigms) recommended that the government establish an ARR. Introduction of an ARR was part of the Liberal Party election platform in 2021 and after its re-election, the mandate letter issued to the then Minister of Innovation, Science and Industry, François-Philippe Champagne included instructions to “Work with the Minister of Canadian Heritage to amend the Copyright Act to further protect artists, creators and copyright holders, including to allow resale rights for artists.” In 2022, the Globe and Mail reported that the Industry and Heritage ministers at the time were working on reforms to the Copyright Act to include an Artists’ Resale Right. There was also speculation it would be included in a Canada-UK Trade Agreement, but that agreement is still under negotiation some four years later. More recently, reference to an ARR was included in both the 2024 Economic Statement and the 2025 Federal Budget. In the case of the budget, the precise wording was:

“Artists, particularly visual artists, are great contributors to Canada’s cultural scene and among the lowest income earners in Canada despite their significant cultural contributions. An Artist’s Resale Right provides the creators of original visual artwork with a royalty whenever their work is resold through an eligible sale, providing an additional income stream. In Budget 2025, the government announces its intent to amend the Copyright Act to create an Artist’s Resale Right in Canada, ensuring Canadian visual artists benefit from future sales of their work.”

That budget has now been passed but there was no mention of amendments to the Copyright Act or the introduction of an ARR in Canada in the omnibus Budget Implementation Bill. So close yet so far. You could be forgiven for asking, “Just what is going on?”

Let’s look at what an ARR is—and is not. It is similar to a royalty stream enjoyed by writers but adapted because of the nature of the work. While books are widely distributed and thus an author can earn royalties each time a book is initially sold, a visual artist gets to sell an original work but once. The principle of the ARR is that where sales of artistic works (works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs) take place beyond the initial sale, a small proportion of the re-sale price is remitted to the original artist or their estate, with post-mortem payments limited to a specified number of years. Often there is a sliding scale for payments, with the percentage going to the artist decreasing as value increases. Sometimes there is a ceiling beyond which a resale royalty is not levied. There can also be a ceiling on the amount paid. The cost is normally paid by the seller, or sometimes the purchaser, but not by the dealer. It is not a tax on art nor is it funded by the taxpayer. Works not sold through an art professional, such as a private sale or sale to a museum, are exempt from the ARR. One assumes a Canadian ARR would follow similar principles.

I started writing about the ARR back in 2021. At that time, as today, advocacy was led by CARFAC (Canadian Artists Representation), representing Canadian artists, and its sister Quebec-based group, RAAV (Le regroupement des artistes en arts visuels du Québec). They pointed out that Canada is one of the few countries not to have an ARR provision in law. They also pointed out that the establishment of an ARR would have an outsized impact on artists who achieved prominence only later in their careers and who often sold early works for a pittance. This is especially true of First Nations and Inuit artists. Finally, they highlighted that if Canada establishes an ARR—which would apply to foreign works resold in Canada as well as Canadian works—then Canadian artists would be eligible for reciprocal treatment in countries where an ARR has been established, such as the 27 member states of the EU, the United Kingdom, Australia, New Zealand, to name a few. The law would be designed to avoid providing ARR payments to artists from countries that do not themselves recognize a resale right. This relates primarily to the United States, which does not have an ARR at the federal level.

As I noted, these lobbying efforts seem to have fallen on fertile ground given all the declarations of intent, despite a counter-campaign by the art dealer community. Most dealers would naturally oppose any provision that could make sales of art more expensive or complicated, despite the fact that the cost is borne by the seller or purchaser, although I would note that some dealers think establishing an ARR is the right thing to do. Yet despite repeated promises from government, there is still no action. Despite amending more than 30 statutes, ranging from the obvious ones like the Income Tax Act to legislation such as the Judges Act, the Human Pathogens and Toxins Act and the Aeronautics Act, and repeal of the Digital Sales Tax, to mention but a few, the omnibus Budget Implementation Act (Bill C-15), which received Royal Assent on March 26 of this year, did not touch the Copyright Act. But as far as I am aware, there is no indication the government intends to renege on its commitment. So, why hasn’t it followed through? Is it inertia? Legislative overload? Distraction?

It’s not clear why this is still unfinished business but it’s time the government delivered on its promises. Surely there is no need for further consultation. This provision has been consulted to death. The ARR has been a proven instrument to protect and promote artist welfare in many countries. At a time when Canada needs to strengthen its identity and culture, the ARR is an established way to support the visual arts at no cost to the taxpayer. The tantalizing but frustrating on-again, off-again nature of the ARR needs to be settled once and for all. Canada’s artists have already been waiting too long for some relief.

Prime Minister Carney, Minister Miller (Identity and Culture Minister). It’s time to get on with it.

Canada’s National AI Strategy “AI for All”: Does Copyright Exist in the AI World?

A futuristic robotic figure with glowing blue accents, portrayed in a tech-inspired environment. A 'no copyright' symbol is visible in the corner.

Image: Shutterstock.com (adapted, clumsily)

If it does, you would never know it from reading Canada’s new AI strategy just released by the Minister of Artificial Intelligence and Digital Innovation, Evan Solomon. It is a magistral document, addressing key elements of AI under six pillars: (with my shorthand summary in brackets)

Protecting Canadians and safeguarding democracy (addressing trust, safety and privacy concerns)
Empowering Canadians (promoting AI literacy and economic opportunity)
Powering AI adoption for shared prosperity (accelerating adoption, especially for SMEs)
Building a sovereign AI foundation (building domestic compute, cloud and connectivity infrastructure)
Scaling Canadian champions (more government funding for domestic AI development)
Building trusted economic and governance partnerships and global alliances (leading the creation of a multinational middle power alliance to curb the power of hegemons and hyperscalers)

The latter objective will no doubt go down really well with the Trump Administration!

Those six headings cover just about all aspects of AI, from its creation to its use to its impact on the economy, on society and on individuals. But in all 50 pages of the document, as far as I can ascertain, you won’t find the word “copyright”, although “protecting intellectual property” is certainly featured. The intellectual property rights that are mentioned have nothing to do with the rights of those whose content was used without authorization to create AI but rather relate to protecting the intellectual output of AI developers in Canada. John Degen, CEO of the The Writers’ Union of Canada (TWUC) was the first to call this out. Given the make-up of the task force that produced the report, this is not surprising. While it was made up of the great and the good from the AI world, with academics, financiers, CEOs, cybersecurity experts, innovators, educators and so on as part of the roster, there was not a single representative from the cultural community.

There are many elements of AI this document tries to address, all of them important to a country like Canada, although there are limits to what can be done by a middle power given that the lead on development has been seized by a handful of large companies, mostly in the US. The US government itself is caught in the dilemma of wanting the US to lead AI development yet not becoming overwhelmed by it to the point that a few major corporations are calling all the shots.

As for content issues, including what must surely include some copyrighted content, they are addressed only indirectly in the Canadian strategy. The three principal issues relating to content are; (1) privacy and access to data; (2) Canadian identity and culture; and (3) AI misuse, such as creation of deepfakes and misinformation.

On privacy and data, the document notes that AI is only as powerful as the data it can access (how true!). It reminds us that governments in Canada hold vast amounts of data that should be treated as a strategic national asset and mobilized to fuel innovation and productivity (i.e. provided for AI research). Thankfully, there is a tip of the hat to the need for “strong privacy protections” but there is no mention of the unauthorized scraping of databases and protected content by AI developers, both domestic and international. Privacy is important but so is ownership of content, and the right to grant permission to use it. Unfortunately, this latter point is not mentioned.

Protecting and promoting Canadian identity and culture is also mentioned as an important goal. It is obvious that if AI developers are blocked or hindered from ingesting Canadian content, then there will be less of Canada reflected in AI outputs. That argument was put forward recently by Michael Geist in a blog post criticizing recommendations issued by the Parliamentary Standing Committee on Heritage that had called for protection of the property rights and interests of artists through the Copyright Act on the basis of authorization, remuneration and transparency. This would lead to “AI without Canada”, according to Prof. Geist. This could be true if AI developers did not need or want curated Canadian content, but they do. The solution, as I pointed out, is not to give away everything in the shop window by creating a broad AI training exception in Canadian copyright law–which would amount to legalized theft, but instead to facilitate licensing solutions by resisting the smash-and-grab. Applying the existing legislation will incentivize the AI industry to strike deals with rightsholders. In other words, they will pay a negotiated amount for the products on display. That’s the best way to get more Canadian content into AI.

On the identity issue, the government’s summary document has this to say:

“Canadian AI must support, reflect, and project Canadian culture, which includes our customs, our history, and our heritage. Canadian voices, languages, communities, and knowledge must also be represented in how AI systems are designed, built, and used. Given our diverse and multicultural society, our approach to AI must acknowledge and support this rich diversity, including strengthening the French language by capturing and projecting its idioms, expressions, and cultural contexts.”

The best way to do this is to ensure that quality content in both official languages is made available to AI developers. As I have stated above, the fairest and most efficacious way to do this is through content licensing. Broad copyright exceptions will not facilitate licensing discussions. In fact, they do just the opposite by encouraging avoidance of dealing with rightsholders.

Regarding misinformation and deepfakes, this is a huge concern, and not just in Canada. Various legislative solutions have been proposed such as the bipartisan NO FAKES Act, currently working its way through the US Congress (opposed, as usual, by the internet libertarian organization, the Electronic Frontier Foundation). Other countries, such as Denmark, are addressing the issue through amendments to copyright law, giving individuals the reproduction rights to their image and voice. The UK has an anti-deepfake law on the books, introduced earlier this year, but Canada is still struggling to get its Online Harms legislation, after a couple of false starts, finalized and across the line. Re-introduction of that legislation is expected imminently, and will likely include social media restrictions on children, a highly controversial issue.

Privacy in relation to access to data, cultural identity, and misinformation including deepfakes are all content issues that Canada’s AI strategy will need to address. And so is copyright, although not mentioned in the strategy. Putting the best possible gloss on things, perhaps it is just as well there was not some throwaway line in the strategy pointing to the need to provide wider access to copyrighted content to ensure that Canada remains competitive on AI. That is the argument often employed by those who want freer access to “OPC” (Other Peoples’ Content). The argument is that “Everyone else is doing it (i.e. giving it away–which is factually untrue), so we have to as well in order to stay competitive”. Maybe silence was better than saying the wrong thing in this document.

In the absence of any reference to copyright issues, the last word must rest with Heritage and Identity Minister Marc Miller who spoke recently to the press after the National Summit on Artificial Intelligence and Culture in Banff, AB. The Minister is quoted as saying that Canadian copyright law is already clear that artists’ work needs to be respected, and that…”the current copyright law does and should protect those that have created material, and people need to be compensated properly.”

While that is encouraging, it would have been nice to have had this reaffirmed in the AI strategy document.

Like Wasps at a Picnic: (Distracting from the Canadian Heritage Committee Report on AI and Creative Industries)

Close-up of a wasp drinking from a metallic surface with blurred green background.

Image: Pixabay.com

It was as predictable as wasps at a picnic. Within days of the Canadian Parliament’s Heritage Committee releasing its report on “The Impact of Artificial Intelligence on the Creative Industries”, with its lead recommendation being (my highlights)…

That the Government of Canada protect the property rights and interests of artists through the principles of the Copyright Act, in accordance with the ART principle—authorization, remuneration and transparency:

a) The Government of Canada must take the necessary steps and ensure that the scope of the Copyright Act applies to AI-generated content in order to guarantee copyright protection.

b) The Government of Canada must mandate greater transparency from AI developers regarding copyrighted works used to train their models, including disclosure of training data sources, to enable proper authorization and licensing.

c) The Government of Canada must establish a clear opt-in consent requirement for the use of copyrighted works in the training of artificial intelligence systems, ensuring that creators’ works may not be used for text and data mining or model development without their prior authorization.

…prolific tech and copyright commentator Michael Geist of the University of Ottawa was attacking its conclusions, issuing warnings that unless the tech industry is allowed (without authorization or compensation from rightsholders) to help itself to copyrighted content for the purpose of AI training, we will have “AI without Canada”. In other words, unless the tech industry is allowed to plunder Canadian content in the same way that it has been doing to date in the US (although this is meeting legal challenges and is quickly changing as licensing solutions take hold), there will be less Canadian content in the training data. This, apparently, will leave Canada as an “outlier” compared to peer jurisdictions. The AI developers will turn their back on Canada and rush off elsewhere. (This is a standard threat deployed by the AI industry to play off one country against another). He cites the EU, Japan, Singapore and Israel, as well as the US in support of this interpretation. Not mentioned as “peer jurisdictions” are the UK and Australia but then that would not have served the purpose of his narrative. Australia has recently declared it will not be legislating a Text and Data Mining (TDM) exception to its copyright laws to legalize unauthorized ingestion of copyrighted works for AI training, while the UK has just hit the pause button on a series of ill thought-out and badly received proposals to allow AI developers to freely use copyrighted content to train their AI algorithms unless rightsholders specifically opt out.

Singapore and Israel are among a small minority of countries that, under US pressure, have adopted US-style fair use laws that potentially allow for a weakening of copyright protection through a hodge-podge of court rulings. While many cite Japan as a jurisdiction that has given carte blanche to tech interests and AI developers, the facts are quite different as I pointed out in this blog post a couple of years ago. Japan has a strong cultural industry that it wants to nourish and protect and has defined its TDM exception very narrowly and carefully. The EU, has two provisions in its Copyright Directive related to AI training (Article 3 which permits TDM carried out only for non-commercial scientific research purposes, and Article 4, which permits TDM for any purpose, including commercial, as long as rightsholders have not opted-out, subject to strict transparency provisions by AI companies). Both impose constraints on AI developers, although there are differing views on opt-out.

Opting-out may sound like a compromise that both rightsholders and the AI industry could support but Britain’s example demonstrates otherwise. In its now aborted public consultation, the UK government put forward several options including its “preferred” option of opt-out. Fully 97 percent of respondents, from both the tech and creative communities, trashed this option. For creators, opting out not only stands copyright on its head (it is a property right, so why should holders of that right be required to notify someone who wants to infringe on that right that they may not do so, i.e. it’s like passing a law allowing anyone to picnic on my front lawn unless I post a “No Trespassing” sign), but it is technically difficult to do, especially for individuals and small-scale rightsholders. The robots.txt protocol is not binding and is in many cases not very effective. The tech industry doesn’t like opt-out because it imposes constraints on their untrammelled ability to access anyone’s copyright-protected content, anywhere, anytime. Instead the Committee recommends “a clear opt-in consent requirement” for the use of copyrighted works in the training of artificial intelligence systems.

Now it’s my turn to quibble. IMHO, there should be no explicit need for a rightsholder to “opt in”. I think that Canada’s copyright laws, properly interpreted, already provide sufficient protection to prevent unauthorized use. A rightsholder can “opt in” to AI training or any other unauthorized use not subject to fair dealing by granting a license to use their content. If that is an “opt-in” requirement then I am in favour. If yet another opt-in step is required, this would seem to be unnecessary. Licensing is a growing phenomenon. AI developers want reliable, curated content to develop their applications. As long as they are prevented from simply helping themselves, there is incentive for them to reach licensing deals with content owners. However, giving the tech industry a pass by allowing themselves to take for free whatever they want in the name of developing AI applications (for their commercial advantage) removes the needed incentive to negotiate with rightsholders. As to whether unauthorized use for AI training constitutes fair dealing, as Dr. Geist claims (“most TDM for AI training purposes would likely qualify as fair dealing under existing law”), this is doubtful to say the least. It is hard to imagine which fair dealing purpose currently applicable in Canadian law (research, private study, education, parody or satire, criticism or review, news reporting) would apply particularly when there are fair dealing limits to the amount of a work that can be used for such purposes, and specific factors that must be applied as to the effect of the dealing on the work.

The Committee’s lead recommendation is not the only complaint that Dr. Geist has about the Committee’s report. He feels it is unbalanced because the majority of its witnesses represented the cultural industries. It’s true that its lead recommendation is very much in line with the mainstream views of the Canadian cultural community. It was, after all, the Report of the Standing Committee on Canadian Heritage. This reminds me of the conflicting reports on copyright issued a few years ago by the Heritage Committee and its counterpart the INDU Committee. The 2019 Heritage Committee report, titled Shifting Paradigms, was attacked at the time by Dr. Geist as “the most one-sided Canadian copyright report issued in the past 15 years”. He claimed that there was “no attempt to engage with a broad range of stakeholders”, even though he himself appeared along with a number of others who shared his perspective on copyright. Shortly after issuing its own report, the INDU committee then issued a tone-deaf “We’re in charge” press release reminding the world that it had “sole responsibility” for administering the Copyright Act. (This is not strictly accurate). Dr. Geist’s main complaint, whether with “Shifting Paradigms” in 2019 or the current Heritage Committee report seems to be that the Committee members, in their wisdom, did not take his expert advice.

What is the function of Parliamentary Committees? It is to hear evidence, draw conclusions and make recommendations. He complains that while there were different points of view, including notably his, on how to tackle the issue under study, the Committee’s conclusions did not reflect these views. Was it because, numerically, there were more pro-copyright witnesses from the creative community that those from the Geist camp? That is theoretically possible if it were just a mathematical exercise of adding up comments in a pro and con column. But that is not the case. While the Report made a conscientious effort to capture the full range of comments, including those of Dr. Geist, in the end the members (from three political parties) made a judgement and reached consensus conclusions. (Although the Conservative Party members provided their own addendum that added to but did not refute the Committee’s conclusions). Presumably the members of the Committee were more convinced by the force of the arguments presented by some witnesses than others. Given the range and similarity of concerns presented by disparate members of the creative community it is not surprising where they came out in terms of conclusions.

Dr. Geist is entitled to disagree with these conclusions and recommendations. To be fair, his blog commentary echoes the position he presented to the Committee, except for his complaints about process. As I said at the outset, his attack on the Committee’s report is entirely predictable, like wasps at a picnic. And those wasps can be so annoying, distracting from the main event with the occasional bite and annoying buzzing, but as any determined picnic-goer knows, it’s important to not let them become the centre of attention. The Heritage Committee’s report was carefully considered and drafted by an all-party group after hearing from a wide range of experts. It provides important recommendations that the government would be well advised to take into account as it develops a legal framework in which both the AI and creative industries can co-exist and flourish.

An AI Bot Rewrote my Blog Post—And then Gave Me a Failing Grade for Credibility!

A humanoid robot sitting at a desk, using a typewriter while looking at a sheet of paper in a cozy, modern interior with soft lighting. — Image: Shutterstock.com

I don’t know whether to feel offended or flattered, but I’ve been scraped–by AI. And I can prove it. The first intimation I had of this signal occurrence was a notice from WordPress asking me to approve a comment on my recent blog post, “Copyright, AI and the Legal Profession: Who Blinked?”. I logged in to find it wasn’t a comment but rather a link to this website.

A quick click took me to the article “CanLII settling with Caseway signals shift in legal-tech power dynamics”, dated April 20, the same day I had posted my blog. It was under a byline “London News”, which initially I naively assumed referred to London, Ont, (shows how parochial I can be) but quickly realized that this was some kind of online journal for commuters heading toward Picadilly Circus. London News appears to be written by a bot called Noah News Service, managed by the company HBM Advisory, based in London (England). There was no direct reference or link to my blog post in the article, but when I read it, it seemed eerily similar. The words were all different but the thread (with one exception that I will come to later) was the same. When I searched further, I found a footnote indicating the London News story was “inspired by” my blog post. What does this mean in reality?

My original post is protected by copyright, but anyone (even a bot I suppose) can take “inspiration” from a copyrighted work and produce something new. However, the “inspiration” I provided the bot is substantially different, in my view, from the sort of inspiration I would get from reading, say, an Agatha Christie mystery and then deciding to write my own mystery novel. In the case of my blog post, the bot did not really take “inspiration” from the content to create a new original work but rather engaged in rewriting the story using AI analysis of its key points to recreate what I had said using different words. That’s not true inspiration; it’s paraphrasing. Moreover, I’ll wager that an unauthorized copy of my work was made in order to feed the content to the bot to undertake its rewrite. While facts cannot be copyrighted (only someone’s expression of the facts), this rewrite was not based on the facts of the case. It was based on my blog post. Although the bot has not hijacked my precise words (i.e. my expression) it has nevertheless replicated the structure of my work, its flow and its arguments. It’s sailing very close to the wind, but probably still legal. This is not dissimilar to the challenge faced by news organizations who find their expensively created content being scraped and repackaged by online platforms such as Google, META, and others. According to the National Post, in a recent survey commissioned by News Media Canada, more than seven in 10 Canadians (of those surveyed) think the federal government should prevent artificial intelligence companies from taking and repackaging news content without permission or compensation.

But back to the London News article. Scrolling down to the end, I found an analysis of my blog post, produced by Noah. The post was rated according to various categories. It earned a “Freshness Check” score of 8/10 (i.e. the story was relevant), a “Quotes” check of 7/10; a “Source Reliability” score of just 6/10, a “Plausibility” rating of 8/10 but, sadly, an Overall Assessment for credibility of “Fail”, based on a “Medium” degree of confidence in this assessment. OMG, where did I fail to make the bot happy? How did I not meet its standards?

The Source reliability score would have been higher, according to the bot, if it had been published by an “established news organisation”, rather than on a personal blog;

“While the author, Hugh Stephens, has expertise in international copyright issues, (thanks, bot) the blog’s content is not subject to the same scrutiny as mainstream media.”

Well, I can live with that. The whole point of a personal blog is to offer a different perspective from Fox News, the BBC or the Globe and Mail.

The bot’s analysis continued:

“The article references reputable sources, but the lack of direct links to these sources raises concerns about transparency and verifiability.”

In other words, stuff your blog post with direct links to “mainstream media” and you might improve your report card. I could do that, but it might not be appreciated by my readers. The need for more direct links is repeated in the Quotes section (Score: 7/10) as well.

As for my failing grade, the bot’s summary says;

“The article provides a speculative analysis of the CanLII-Caseway AI settlement, referencing reputable sources but lacking direct links for independent verification. Its opinion-based nature and the author’s personal blog platform contribute to concerns about reliability and independence. Given these factors, the content does not meet the standards for publication under our editorial indemnity.”

But they published it anyway, as they do all kinds of content scraped from the web. I am not sure what the editorial indemnity policy is, but I suppose it is some sort of guaranteed reliability indicator, designed to separate the loony conspiracy theories (alternate facts?) from “real news”.

I wondered who would pass the bot’s scrutiny. Of the ten AI related stories posted on the front page of London News on the day I selected, 5 passed, 4 failed, and one was Conditional. The sources were all specialized but non-mainstream tech publications, or informed blogs, but certainly not conspiracy-theory outlets. Yet about half failed to gain Noah’s approval. I started to feel a bit better. Perhaps I’m not such an outlier.

I wonder if could write a blog post that would get an “A” from the bot. First, I would have to catch its attention, which I guess I could do by making sure there were lots of references to “AI” in the text, and then I would have to suppress my instinct to offer views on the topic. I would also have to stuff in lots of links to mainstream sources, like the Guardian and its ilk. But what is the fun in that? And what is the point? If people want to read “just the facts”, they can turn over the screening of content (and thinking) to their mainstream media subscriptions. However, I will say that the idea of assessing the reliability of a story on any topic, whether it’s on AI or the war in the Middle East, is not a bad thing. In the case of HBM, the assessment is used as a teaser to convince users (individuals, but more likely businesses) to sign up for more comprehensive, paid analysis. Part of the problem is that the assessment is done by an AI bot, and we know that AI is far from perfect.

HBM claims it uses AI and statistical modelling blended with human expertise and oversight to do its assessments. There is a thin but cursory layer of human involvement; fact-checking, source verification, style refinement etc. I think this is borne out by one missing key paragraph from HBM’s rewrite of my blog post. I had taken aim at Deloitte as an example of a large multinational company, that should know better, having been caught red-handed using unattributed AI that produced inaccurate, “hallucinated” results in a consulting report it prepared for the Newfoundland government. (“Deloitte’s AI Nightmare: Top Global Firm Caught Using AI-Fabricated Sources to Support its Policy Recommendations”). While HBM’s rewrite included almost all the key points in my post, there was zero reference to Deloitte. I am sure that “human expertise” decided that there was no point in gratuitously antagonizing an actual or potential client. Can I prove it? No, I guess its just another conspiracy theory.

I wonder if this blog post will be picked up and analyzed by Noah and if so, whether I would get a “Pass” this time. After all, it is “Fresh” and I have used lots of quotes from Noah. Having referred to the London News, I should get a 10/10 for Source Reliability (although I am not mainstream media, but neither is Noah). As for Plausibility what could be more plausible than an AI bot ripping off an author’s work through an unauthorized rewrite? Would all that land me a “Pass” from Noah? I will probably never know.

Update: Noah picked up and summarized (using much more direct language this time) the blog post above and then (drumroll) gave me a “Pass”.

Copyright, AI and the Legal Profession (Who Blinked?)

Image: Shutterstock

I wonder what really happened? Maybe we’ll never know. On March 23 it was announced that Caseway AI and CanLII (The Canadian Legal Information Institute) had reached a settlement in the copyright infringement case brought by CanLII against Caseway in 2024. As the saying goes, “Somebody knows something”, but they aren’t saying. The settlement is confidential and both sides are very tight-lipped, although Caseway is willing to riff a bit on social media. The CanLII announcement that each party will move forward independently, and that both consider the matter fully and finally resolved with no further comment, is particularly buttoned-up leading one (the “one” being me) to suspect it was maybe CanLII that blinked, not Caseway. But I could be wrong. There is no announcement that Caseway will be licensing CanLII content, or any hints that money has changed hands. Maybe Caseway agreed to stop what they were doing even though they denied doing it.

The facts of the case are as follows. According to its website, CanLII is “a non-profit organization founded in 2001 by the Federation of Law Societies of Canada on behalf of its 14-member law societies. Its mandate is to provide efficient and open online access to judicial decisions and legislative documents.”

Not only that but,

“CanLII supports members of the legal profession in the performance of their duties while providing the public with permanent open access to laws and legal decisions from all Canadian jurisdictions.”

Caseway AI says it is a company that is applying AI techniques to the legal profession “to make legal knowledge accessible, affordable, and usable for everyone.”

This being the case, you might think that CanLII would be delighted when an AI company like Caseway came along to use CanLII’s “free” resources to develop an AI-based legal platform, which would arguably improve access to legal information on the part of the public, plus simplify the research function for legal firms. You would be wrong. Part of the problem, no doubt, was that the AI company, Caseway, charges for its services while not being part of the profession.(i.e. take but not give).

Caseway’s sales pitch also might not endear it to the legal profession;

“We believe the justice system should not feel closed off to those without deep pockets or institutional power…By combining trusted legal sources with modern technology, Caseway levels the playing field—empowering solo lawyers, small firms, businesses, and individuals navigating legal challenges on their own…”

Oh oh. The self representation bogey. Maybe the real reason for CanLII’s suit was that Caseway AI and others like it were setting themselves up as a direct threat to the legal profession. Apart from the threat of more self representation, AI is a two-edged sword for many lawyers. Yes, it simplifies a number of routine duties and research functions, but at the end of the day it could also result in a lot fewer lawyers. The threat is no different than the threat posed to accountants, radiologists, stock market analysts and soothsayers, but needs to be taken seriously.

The nub of the CanLII case was that while it provides public, non-copyrightable judicial decisions, these public documents are compiled in a proprietary database. CanLII argued that it spends considerable time, effort and money to “review, analyze, curate, aggregate, catalogue, annotate, index and otherwise enhance the data” prior to publication and that this creative effort converts public information into copyright protected content. CanLII might be right, based on the US case of Thomson Reuters v Ross where a US court found that Ross Intelligence, an AI research firm, had infringed on the copyrighted legal materials, indexing system and case headnotes (summaries of judicial cases) of Westlaw, a legal research platform owned by Thomson Reuters. Notably Ross had tried to license the Westlaw content, but Thomson Reuters had refused, viewing Ross as a competitor to Westlaw. Ross then helped itself to the material. In both the CanLII and Reuters/Ross cases, the foundational content, (judicial decisions) were in the public domain, but the issue revolved around the secondary, interpretive materials and processes. In presenting its defence, Caseway did not argue that it was entitled to use CanLII’s content under fair dealing or because it was in the public domain. Instead, it argued that it didn’t access CanLII’s content at all. It got its content from other public sources. CanLII had to prove the contrary.

When I asked Google’s AI mode “How strong was the CanLII case against Caseway” I got a summary of various Canadian Lawyer Magazine articles which discussed the pros and cons of the case, and an unsubstantiated assertion that “Caseway agreed to respect CanLII’s terms of service and cease any unauthorized automated data extraction.” Whether that is true or not I cannot say, but it is clear that both CanLII and Caseway will continue on their respective paths. Indeed, Caseway has just burnished its image a bit by cutting a deal with UBC (University of British Columbia, in Vancouver) to research ways to improve the accuracy of AI legal research tools. This is an ongoing problem for legal researchers and more than one lawyer has been sanctioned by the courts for presenting supposed legal precedents that were in fact non-existent, having been hallucinated by AI.

Apart from the AI hallucination problem, which does not limit itself to the legal profession (Deloitte Consulting being a prominent example of a major company being caught with its hand in the AI error-ridden cookie jar, without disclosure to the client), there is also the question of whether an AI platform should be allowed to provide legal advice. It is not licensed to do so and as a regulated profession, lawyers are jealous of their prerogatives. The profession is regulated for good reasons; to ensure competence and integrity to protect clients and the public. There are strict regulations against unlicensed practitioners providing legal advice, with severe penalties. In March of this year, ChatGPT’s parent company, OpenAI, was sued for engaging in the unauthorized practice of law, in this case by providing legal advice through a consumer‑facing chatbot. The seriousness of unlicensed persons or entities providing legal advice explains the many warnings posted on websites and blogs when discussing legal issues. “The foregoing does not constitute legal advice”. The case is pending.

Back to Caseway AI. Do I think that if you have a legal problem, you can solve it with a $49.99 a month subscription to Caseway instead of engaging a lawyer? Well, if you are determined to self-represent, it might be better to try it out rather than heading to the library to borrow a copy of the Highways Act, or Criminal Code, or searching for legal precedents that might be relevant to your case. On the other hand, remember the old saying, often attributed to Abraham Lincoln, that “A man who is his own lawyer has a fool for a client”.

The above does not constitute legal advice. 😊

Broadcasting Policy Beyond Broadcasting: Canada’s Online Streaming Act and the U.S. Response

By Christine Rose Cooling

(This is an occasional guest post. I am delighted to publish this analysis by Christine Rose Cooling, whose bio you will find at the end of the post).

An illustration featuring a smartphone displaying digital media platforms, a clipboard with media and broadcast regulations, a gavel on a wooden block, and a computer screen with hands holding microphones, labeled 'Online Streaming Act'.

Image: Shutterstock.com (modified)

When then-Minister of Canadian Heritage Pablo Rodriguez introduced Bill C-11, the Online Streaming Act, in the House of Commons in February 2022, he invoked earlier optimism about the Internet as a space for democratic participation and cultural opportunity. This sentiment recalls John Perry Barlow’s 1996 “Declaration of the Independence of Cyberspace,” which infamously imagined the Internet as a space beyond the sovereignty of nation-states, where the “weary giants of flesh and steel” would have no power. That naïve idealism has since given way to emerging concern about the role of global streaming platforms in shredding Canada’s cultural fabric. Left unregulated, Rodriguez suggested, these services risk weakening Canadian sovereignty.

More than three decades after Canada’s last modernization of the Broadcasting Act in 1991, debates about Canadian broadcasting policy returned with renewed intensity. With Royal Assent granted in April 2023, the Online Streaming Act extends the Canadian Radio-television and Telecommunications Commission’s (CRTC) regulatory authority to streaming services operating in Canada, requiring them to contribute to Canadian content (CanCon) production and support the discoverability of Canadian programming.

The Online Streaming Act represents both policy modernization and inertia in an effort to extend broadcasting policy beyond national broadcasting systems. Although the Act incorporates streaming platforms into the Broadcasting Act as “online undertakings,” these services differ fundamentally from traditional broadcasters—think spectrum allocation, scheduled programming, and territorially bounded signals.

Canada is not alone in attempting to retrofit twentieth-century broadcasting frameworks to the regulatory challenges posed by twenty-first-century streaming platforms. What distinguishes the Canadian case is the degree to which such efforts unfold within a trade environment shaped by structural dependence on access to U.S. markets, making Canadian cultural regulation unusually susceptible to bilateral pressure. Further, the Act operates within a volatile geopolitical arena in which platform regulation is being interpreted through the language of free trade and industrial competition rather than longstanding cultural logics.

Enter Stage Left: The U.S. Response

In June 2024, the CRTC announced that major online streaming services would be required to contribute five per cent of their Canadian revenues toward domestic production funds supporting Canadian and Indigenous content, including genres the streamers do not produce, such as news reporting. The decision has since been the subject of dispute by Apple, Amazon, and Spotify as well as the Motion Picture Association-Canada, though streamers will likely be prepared to pay some amount.

More recently, on March 19, 2026, Congressman Lloyd Smucker introduced the Protecting American Streaming and Innovation Act in the U.S. House of Representatives. This draft legislation, if adopted, would direct the U.S. Trade Representative (USTR) to investigate whether the Online Streaming Act discriminates against American streaming companies. The bill sets the stage for retaliatory action under Section 301(c) of the U.S. Trade Act of 1974 if such discrimination is found and if Canada does not remedy the discriminatory measures within 180 days, although use of Section 301 would violate the Canada–United States–Mexico Agreement (CUSMA).

Article 19.4 of CUSMA requires that countries treat digital products from other member states no less favourably than their own. In principle, this national treatment provision applies to streamers operating in Canada. However, Article 32.6 creates a broad exception for cultural industries, allowing Canada to adopt cultural policy measures affecting broadcasting and audiovisual production even if they conflict with the agreement. While specific U.S. industry interests have argued that Canada may need to rely on Article 32.6 to justify the measures it is taking under the Online Streaming Act, it is important to note that to date the U.S. government has not formally adopted this position. That said, the exemption does not eliminate the possibility of U.S. retaliation; indeed, it explicitly legitimizes it. Under CUSMA, the United States may respond with measures of equivalent commercial effect in any sector if it determines that Canadian cultural policies disadvantage American firms. Canada can, however, challenge whether Article 32.6 is applicable. Also, an argument can be made that the way in which the Online Streaming Act regulates streaming services is not discriminatory, i.e. it does not violate national treatment obligations.

Although Congressman Smucker’s Protecting American Streaming and Innovation Act may never see the light of day as it is but one of many bills introduced into Congress to highlight issues of concern to U.S. industry interests, it nonetheless renders the politics of broadcasting policy quite visible. Smucker’s unlikely counter-legislation—decrying the Online Streaming Act as an attack against U.S. companies, creators, and workers—makes it blatantly clear how debates about cultural regulation increasingly extend beyond national institutions. Such actions function less as the basis for dispute settlement than as policy posturing intended to exert bilateral pressure on Canada.

From Signals to Streaming

Canadian broadcasting policy has long been shaped by historical disputes, cultural tensions, and geopolitical pressures. From the early licensing of commercial radio stations in the 1920s to the establishment of the Canadian Broadcasting Corporation (CBC) that we know (and at least some of us love) today, Canadian broadcasting policy developed not just as an industrial response to spectrum scarcity but also as cultural protectionism against American dominance over Canadian airwaves.

Conundrums aside, legacy regulatory strategies like Canadian content (CanCon) requirements and ownership rules remain measures through which broadcasting policy has sought to pursue cultural objectives beyond economic ones. The Online Streaming Act extends this analog-era regulatory philosophy into the digital age, transforming unresolved debates over the legitimacy of Canadian cultural regulation.

We should also remember that the transformation of broadcasting policy in Canada did not emerge suddenly with the Online Streaming Act. During the CRTC’s Let’s Talk TV hearings between 2013 and 2014, the Commission heard from Netflix representative Corie Wright who argued that online streaming services primarily supplemented rather than replaced traditional broadcasting services. Netflix declined to provide evidence supporting this claim, and the Commission ultimately ruled the argument as anecdotal. This line of uncertainty later informed the work of the Liberal-appointed Broadcasting and Telecommunications Legislative Review panel, whose 2020 report Canada’s Communications Future: Time to Act recommended restructuring communication legislation to reflect a new networked environment. Among its most consequential recommendations was the proposal to extend regulatory authority over online streaming services operating in Canada.

Concerns about the trade implications of regulating online streaming services are, likewise, not new at all. Early in 2020, Professor and Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, Michael Geist, warned that requiring foreign streaming services to contribute to Canadian production funds without equal access to those funds could invite retaliatory trade responses. Similar concerns surfaced in 2022 before the bill passed, when former U.S. Trade Representative Katherine Tai officially took notice of the Online Streaming Act during a CUSMA meeting with Canada’s former Minister of International Trade, Mary Ng.

Despite the unlikelihood of its adoption, Smucker’s Protecting American Streaming and Innovation Act represents less a sudden escalation than a continuation of a contested shift in how cultural regulation is interpreted both within and beyond Canada. This is entirely unsurprising, as platform infrastructures shaped by recommendation systems, black-box algorithms, and cross-border media flows increasingly blur the boundaries between cultural forms and digital markets.

Biography

Christine Rose Cooling is a PhD student in Communication & Culture at York University whose research examines how Canadian cultural policy continues to shape cultural expression in a platform-mediated media environment. Her work focuses on broadcasting regulation, streaming platforms, and the cultural significance of live music within contemporary debates about national identity and cultural sovereignty.

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.

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