Category: Copyright

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.

© Hugh Stephens, 2026. All Rights Reserved

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.

© Hugh Stephens, 2026. All Rights Reserved.

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?)

A close-up of a stack of vintage books on a wooden shelf, with a prominent 'AI' logo overlay.

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. 😊

© Hugh Stephens, 2026. All Rights Reserved.

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.

© Christine Rose Cooling, 2026

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.

© 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.