Does China Have a Copycat Culture? The Case of “Architectural Mimicry”

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It seems you can’t look at the news these days without the word “China” being in a headline. Will a Biden Administration be as tough on China as Trump? How will Justin Trudeau deal with the continued detention of Canadian citizens in China? What will Australia do about new Chinese trade retaliation? How will China’s actions in Hong Kong affect UK-China relations?

Whether it is these issues or accusations of cyber or research theft, planning to plant a “Trojan Horse” inside the critical telecoms infrastructure in the West, or hijacking intellectual property (IP) through forced knowledge transfer or just plain copying, China is getting lots of (negative) coverage. When it comes to IP, it is a popular view that China has an ingrained copycat culture, based on intellectual property free-riding, copying and otherwise appropriating brand-names, pirating copyrighted content and even stealing patents. The “West”, so the argument goes, is much more respectful of intellectual property rights (IPR) and is therefore more original and more innovative. There are no doubt elements of truth in these generalizations, as indeed there usually are in such assumptions, but how valid are they? There is plenty of anecdotal evidence to support the copycat theory; lack of innovation perhaps not so much.

Recently I came across an interesting book recommended by a friend, Bianca Bosker’s, Original Copies: Architectural Mimicry in Contemporary China,which seems relevant to this debate. Is this “mimicry” yet another example of China’s penchant for copying, or does it rather demonstrate that inspiration can be taken from many sources?

The book is not new, having been published in 2013, but I just stumbled across it. As reported by the BBC at the time, in a marketing ploy Chinese property developers came up with a new promotional device; make their custom designed communities look just like a town from somewhere else in the world. Thus, “Thames Town”, located in a suburb of Shanghai, has English pubs, a statue of Winston Churchill, red phone booths, an English-style cathedral, half-timbered buildings, and security guards dressed up in outfits that are probably supposed to resemble the guards at Buckingham Palace. What it doesn’t have, at least according to fairly recent reports, is people. There are places in China that recreate the canals of Venice, the chateaux of Versailles, the Eiffel Tower, a Scandinavian village, and so on. It’s a little bit like having the Epcot Center dropped down on the edge of town, but with no ticket entrance and closing time.

In a 2013 interview about her book, Bosker opined on what drives this mimicry;  

“China, at least traditionally, has viewed copying with far greater nuance and tolerance than we have in the West. This perspective has helped create a copy-friendly climate where knockoff White Houses and Monet-manufacturing centers can flourish. In the United States…copycats are seen as cheats. Yet in China, where there’s a long tradition of replicating everything from architecture and artwork to natural landscapes, copying isn’t viewed with such hostility. Traditionally, people saw there as being many distinct types of copies, each with certain merits and purposes. Being able to copy well could actually be a sign of one’s skill or ability — a good copier would be celebrated as a talent, not a thief, and a well-done replica could be a testament to achievement.”

Sounds like an endorsement for counterfeiters!

China is no stranger to copying, as this example shows. It has been argued that the penchant for copying is culture-based, relating to Confucian culture where knowledge and education were commodities to be “shared”. While there may be some loose connection to Confucian values, much of the current IP rip-offs in China are driven purely by commercial advantage, or greed by another name. In a recent blog, Why is Piracy so Common in China? Confucian Cultural Traditions or Just Plain Commercial Advantage? (A Historical Perspective)I examined this question using the example of Chinese publishing houses in the early 20th century in Shanghai. At that time, Chinese copyright laws were basically non-existent or at least non-operative but the Shanghai publishers did not let any vague concept of Confucian values get in their way when it came to self-policing of copyright infringement. Printing and publishing were regulated by their guild and discipline was enforced on those who reproduced the works of guild members without permission. Of course foreign publishing houses were not admitted to the guild so pirating their works was fair game!

Other examples of copying and free riding are found in the area of trademarks. China is awash in knock-offs from fake watches and luggage to auto parts and medicines. USTR’s annual Special 301 report on foreign IP practices always has a long chapter on Chinese transgressions. The current edition is no exception with the report noting that; “China continues to be the world’s leading source of counterfeit and pirated goods, reflecting its failure to take decisive action to curb the widespread manufacture, domestic sale, and export of counterfeit goods.” This widespread counterfeit problem has shifted from largely outdoor markets (although still a problem) to online markets, actually compounding the problem by expanding the reach of fake goods to consumers outside China.

Apart from counterfeiting, use of confusingly similar trademark names is also a problem. In a well-known case a few years ago, Starbucks successfully sued a Chinese coffee chain that was using a very similar logo and a Chinese translation of the Starbucks name that was confusingly similar. The case was one of the first where a western brand was successful in a Chinese court, but it seems to have been the exception rather than the rule. I once asked a Chinese friend why Chinese companies didn’t just invest in promoting their own brand image (as a few have done), instead of confusing consumers by pretending to be something else. His answer was revealing to me. He said that a company or product copying another through a similar mark was not trying to fool the consumer; rather the message was “our product is just like and just as good as Brand X” (and probably a lot cheaper). This is a classic advertising free-riding technique. In the West however, the tactic is for the new product to compare itself favourably to Brand X, using the reputation of Brand X to attract consumers to the new, competing product.

So are the Chinese a nation and culture of copycats, unable to innovate without copying either illicitly or openly? That characterization seems hard to square with the contribution that China has historically made in the area of inventions, including paper-making, movable type, gunpowder, the compass, silk, umbrellas, iron-smelting, and porcelain. Oh, and I forgot golf.  Aha, you say, but that was all a long time ago. What have they invented lately? Actually, quite a lot. China is far ahead of most western countries in terms of e-commerce and mobile payments and is competitive if not leading in areas such as AI, 5G, biotech and solar energy. While some parts of the Chinese business ecosystem are content to sit back and copy–or in some cases steal–technology, in other areas cutting edge research is putting China at the forefront of technology. 

But back to architectural mimicry and what it proves, or does not prove. Copying of architectural styles is hardly something new. In the 19th century many North American cities adopted various European architectural styles, from neoclassical Greek and Roman (think the US Capitol building and state and provincial legislatures across North America) to French Third Empire to Victorian Gothic. We have transplanted Italian gardens, Chinese classical gardens, Germanic castles and French chateaux in North America. We even have an original London Bridge. And then there is Las Vegas, with its Eiffel Tower, Venice and its canals, and Luxor with the Sphinx and pyramids (the real pyramids and Sphinx are over 500 kilometers from Luxor but, hey, why sweat the details?). So copying famous architectural features is not just a Chinese phenomenon, but the cloning of an entire community to create a “Truman Show”-like environment certainly takes mimicry to a new level.

While copying copyrighted architectural designs could get you in trouble, as I wrote about in a blog posting on alleged architectural design infringement in Toronto (“So You Admire Your Neighbour’s House: Best Not to Copy the Design”), Monsieur Eiffel or his heirs are not going to be suing anyone in China, or Las Vegas either for that matter. He passed away in 1923 and all designs and reproductions of his famous tower entered the public domain in 1993, seventy years after his death in accordance with EU copyright law. Thus it is perfectly legal to photograph, copy and sell reproductions of the Eiffel Tower. As an aside, I would note that in a quirk of copyright law, it is a potential copyright infringement to take photos of the tower at night since the night-time light show was added only in 1985 and still falls under copyright protection. As explained in this article, “it’s illegal to share, sell, or publish photos and videos of the night-lit Eiffel Tower without prior permission from the Société d’Exploitation de la Tour Eiffel.” That said, owing to the practicality of enforcement, no case of infringement of this right has ever ended up in court, but if a commercial publisher were to infringe the Societé’s copyright, I can’t predict what would happen.

Returning to the original question, does China have a copycat culture, or at least more of a copycat culture than in the West, the answer depends on your perspective. There is lots of copying in China, some legal like “Thames Town” and some infringing. There is also a lot of innovation and domestic R&D, and a historical tradition of invention to build on. The West does not have completely clean hands either when it comes to copying. The case of the copyright wars of the 19th century, where US publishers routinely “pirated” and reprinted without authorization British writers is often cited as an example of how attitudes to copying evolved in the West, and will change in China. In another recent blog, I examined this historical question. US, British (and Canadian) publishers pirated each other on a regular basis, but at the time this was all perfectly legal as copyright protection extended only to works published domestically. So technically it wasn’t piracy.

Respect for intellectual property (IP) in all its dimensions—patents, copyright, trade secrets, designs, trademarks—is a foundation stone of innovation and creativity. However, within the framework of IP there is plenty of scope to take inspiration from the work of others without infringing, although staying onside is not always clear-cut. This is what keeps IP lawyers and courts in business, including in China. China’s IP laws and practices are changing given the growth of more domestically-produced IP in recent years, but copying will undoubtedly continue, driven in some cases by short-cutting and achieving unfair commercial advantage but in others by admiration for “something different” with a western allure.

I hear properties in “Thames Town” are still available if anyone is interested.

© Hugh Stephens 2020. All Rights Reserved

During a time of pandemic, there is more need than ever to nurture our creative industries.

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Last week I wrote about the challenges facing artists and cultural industries world-wide as a result of the global COVID pandemic. The closure of many venues, from museums to theatres to concert halls, has had a devastating effect–not only on artistic incomes but by stifling creativity and forcing people out of the creative industries. Some governments have offered interim relief through various income support programs, but these are stop-gap measures at best. For some fields of artistic endeavour, the impact will be long-lasting.

While the pandemic has posed many new challenges, flaws in the copyright system that is supposed to protect creators has accentuated the artistic sector’s difficulties. In fact COVID-19 has been used as the pretext to mount assaults on the copyright framework by using the pandemic as an excuse to advance anti-copyright agendas, such as the Internet Archive’s (IA) so-called Emergency Open Library in the US. The IA unilaterally decided that it would abandon the “one copy-one user” principle for lending digitized works in its holdings and make multiple unlicensed copies of digitized works (that were still under copyright) openly available to all comers. After all, there was a pandemic on, so the normal rules don’t apply. Right? Wrong. Publishers were not amused, sued, and the IA pulled back—but only under duress. As I noted in a blog back in the early stages of the pandemic;

“Copyright is the canary in the coal mine when it comes to attempts by special interests to use the COVID pandemic to throw the accepted rules out the window in pursuit of other agendas that have nothing to do with fighting this global crisis.”

While some have used the pandemic as a smokescreen to attack the principles of copyright, in other instances the existing rules, or new interpretations of the rules, have made a bad situation worse. In the Internet Archive case, authors agreed that many people were suffering under lockdowns and accepted that it was harder for students and other to gain access to materials given the closures of libraries (the ostensible reason given by IA for launching its open lending practices). But it wasn’t just students and the public that were hurting. Authors themselves were also suffering. Authors get paid royalties when books are sold through bookstores (bricks and mortar or online) or licensed through libraries. Unlimited, unrestricted circulation of unlicensed copies (even the copies themselves were controversial because rather than being licensed e-books, they were scanned copies of physical books) was just another form of piracy.

In Canada, an ongoing dispute over whether educational institutions have the right to widely copy printed works without a licence under a relatively new “education” fair dealing exception is now going to the Supreme Court of Canada (York U v Access Copyright) for a determinative decision, unless Parliament clarifies the law before a decision is rendered. The hardships imposed by restricted opportunities to market books as a result of COVID-19 are magnified by this major hole in copyright protection. Even the “mandatory licensing” system overseen by the Copyright Board of Canada to enable copyright collectives to manage licensing on behalf of their members has been stood on its head by the Courts, another part of the York U v Access Copyright case that the Supreme Court has agreed to hear. In another creative field, musicians have been forced to compensate for the loss of revenue due to streaming piracy and low payment for licensing of streaming music by staying on tour, but tours are now cancelled for the foreseeable future as a result of the coronavirus.

There is no doubt that this is a very challenging time for creators and the copyright industries. Last month I penned an op-ed on this topic, published by the Globe and Mail. It argued that now is the time to get copyright “right”, given the additional challenges facing creators as a result of COVID.  This is all the more important given the need to maintain and sustain a vibrant cultural sector in order to help us all get through this pandemic with our sanity intact.

For those of you who don’t read the Globe and Mail, that op-ed is repeated below.

Canada’s copyright laws are limiting opportunities for creative industries to recover income

Globe and Mail, October 13, 2020

Hugh Stephens

Getting copyright “right” is important for Canada’s creative sector but also for the cultural and economic well-being of Canadians, especially during this time of COVID-19.

Like so many other sectors of our economy, our creative industries – authors, musicians, playwrights, actors, directors – were hit hard by the pandemic. Unfortunately, Canada’s current copyright regime has deepened that blow – limiting opportunities they may have had to recover any lost income.

For example, royalties to Canadian writers, visual artists and publishers for the use of published materials have fallen precipitously since changes to the Copyright Act were enacted back in 2012. Those changes included adding education as a “fair-dealing exception”: Fair dealing is the right of a user to reproduce copyrighted materials without payment or permission under specified circumstances and limits.

The addition of education as a fair-dealing purpose was so vaguely worded it has allowed most educational institutions at primary, secondary and postsecondary levels to cease payment to the collective societies that represent creators. Ultimately, where once educational institutions paid to copy sections from books, newspapers and other published materials for students, most now help themselves for free, depriving Canadian creators and publishers of countless millions in royalties.

Musicians also know the feeling of seeing their work taken for free or undervalued. Ever since the shift from analog to digital media, they have dealt with the “value gap” – where the platforms that house digital content reap the financial rewards with just a trickle left over for those who actually provide the content that make these platforms viable businesses. When live performances, often the only way musicians can earn a fair return these days, were stopped, the often-meagre funds realized from digital streaming were all that remained.

And if all this wasn’t enough, a most unwelcome surprise arrived – with a ruling from the Federal Court of Appeal. It escaped most people’s notice, but for the creative industries, it highlighted just how broken copyright in Canada actually is. The court ruled that tariffs approved by the Copyright Board are not “mandatory” for those who use unlicensed content, even though that has been the practice for the past several decades. Until now, the practice has been that if the board approves a tariff, it applies to all users of the content whether or not they are willing to enter licensing arrangements with the collective. The effect of this ruling undermines the fundamentals of copyright collectives in Canada that license content on behalf of their members.

As the ground was shifting under creators because of the pandemic, this ruling leaves collectives virtually powerless to ensure a fair return for use of creators’ works. If left unchallenged, the ruling will be a crippling body blow to writers, visual artists, publishers, musicians, songwriters and anyone else who makes a living creating. Parliament needs to clarify what a “mandatory tariff” means.

Canada’s creators and creative industries have suffered a double blow. COVID-19 has shut down many of the channels by which they reach their audience and earn a living. Canada’s broken copyright system has made the situation that much worse. As the pandemic has exposed a number of holes in our social fabric that need fixing, our copyright system needs fixing too.

© Hugh Stephens, 202.  All Rights Reserved.

COVID and Culture: What’s Around the Corner?

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I have COVID fatigue. Perhaps you do too. In the interests of self-preservation, plus concern for others, in the spring I went into a period of deep hibernation, not that there was much choice as most venues—restaurants, galleries, libraries, cinemas, museums, even parks—were closed. Then we started to “flatten the curve” (at least in my neck of the woods) and a gradual re-opening occurred—until the “second wave” arrived that is. Libraries and museums cautiously and partially reopened (with a limit of just 6 people at a time in all our local library branches). Parks reopened, outdoor restaurant patios sprang up and spread into adjacent streets that suddenly became pedestrian precincts, and even cinemas reopened with limited seating. But the local symphony hasn’t been able to perform, live theatre productions for the coming winter season have been cancelled, book launches are virtual only, and just about the only live music one hears comes from the occasional busker and street musician. The cautious re-opening is fragile, and it could be reversed at any time. It’s better than being in full lockdown, but it’s not normal. Perhaps it is the “new normal”, but it’s hard to adjust to. Probably like you, I am frustrated and antsy.

But if as consumers of culture we feel a bit frustrated, think of the impact on artists and cultural industries of all stripes. The impact is both economic and “spiritual”. COVID not only affects their livelihoods, it threatens to stifle creativity and inspiration, although the degree of impact depends on the genre. Artists can still create, musicians perform and compose, and authors write, but without outlets for their work, the creative spirit is dampened (in addition to the problem of paying the bills). There is still the online world of course, and while it provides an alternative platform which works better for some forms of creativity than others, it is not a substitute for the human interaction that participation in a live cultural event brings to both audiences and performers, consumers and artists.

And let’s not diminish the economic impact. This is significant. A recent study produced by Brookings, “Lost art: Measuring COVID-19’s devastating impact on America’s creative economy”, estimated the loss to the US economy for just the four month period of April through July to be 2.7 million jobs and $150 billion in lost goods and services for creative industries. The hardest hit subsector was fine and performing arts, losing 1.4 million jobs (50% of the jobs in the sector) and $42 billion in sales as concerts, theatres and galleries suspended operations. Design and advertising lost 13% of jobs, publishing 9%, film and TV 7% with smaller losses among other categories such as architecture and fashion. Among specific occupations in the creative industries, the hardest hit were photographers, who saw a decline in jobs of almost 17% with a 21% decline in income, but many other occupations were also hit—musicians, actors, writers, artists, and so on. And this is in a diversified and sophisticated economy where digital penetration is high. Can you imagine the impact in countries less well endowed?

In fact, UNESCO (United Nations Educational, Scientific and Cultural Organization) has surveyed the impact across many societies and economies. Quite apart from the loss of income support, COVID has had devastating effects on the cultural sector worldwide. UNESCO reports on empty cultural sites, closed institutions, suspension of cultural practices and unanticipated negative by-products such as looting of cultural sites as a result of inadequate security, lack of ongoing conservation work owing to loss of revenue, loss of educational materials, and loss of cultural diversity through suspension of cultural social practices. The impact has disproportionately hit poor countries and vulnerable groups the hardest, where out-of-work artists have no social safety net to fall back on. It is worth remembering that 46 % of the global population is offline. “Working from home” is often not a viable option.

UNESCO estimates that many museums, up to 13%, may never re-open, especially those largely dependent on admission revenues for financial support. In a survey, one third of independent galleries and art dealers indicated that they do not expect to survive. Some art institutions may have to close permanently. Overall, there could be a loss of 10% of GDP in some countries because of the impact of COVID on cultural industries, especially where culture is a key driver of tourism.

Is there any glimmer of hope in this bleak landscape? If you subscribe to the theory that out of adversity comes strength, then possibly some good will come out of the adaptations that have been and will be necessary to live with COVID.

First, I think COVID has shown us just how important culture, creative industries and institutions are to our daily lives, not just in economic terms but to our ability to exist as sentient beings. Think of the enjoyment and release that music provides, the escape of a good novel or film, the appreciation of the ingenuity of creators in the visual and plastic arts—in short, the importance of culture to spiritual recovery. For those of fortunate enough to live in a digital world, there has been an opening of new possibilities for access to content. But this can also be a double-edged sword for local creators who may suddenly find themselves in competition with artists a continent away. To cite a local example, my small but proficient regional orchestra, the Victoria Symphony, has not been able to present live performances. The alternative is to try to get the musicians together—in smaller groups than the full orchestra—to perform online. That draws people back in, and the next step will be to try to convert this online interest into revenue generation. But getting people to pay for online content is a challenge especially in a world of unlimited alternatives. If I am going to watch and listen to an online performance of, say, Mozart, why would I choose a local orchestra over the finest in the world, also available online?

Museums and galleries face the same challenge and have gone digital, mounting virtual exhibits and tours, similar to what classical music organizations are trying to do. That can work well where the offering is unique (rarely is this the case with classical music), but virtual exhibitions need to offer something special that cannot be obtained elsewhere. And, while the online environment offers consumers the ability to see or hear content, it does not offer the context of viewing or listening to it live, in an interesting museum building or concert hall, sharing the experience with others. We all know what the Mona Lisa looks like, but it’s the real thing that we want to see. That is what COVID restrictions are denying us.

So what is the answer? To date many of the responses from governments have been to provide various types of financial support to the sector, as I noted in a blog I posted early in the pandemic (here). The maintenance of subsidies and the provision of some income support helped stave off immediate collapse and enabled many organizations and creators to manage—barely—for the time being. Much of this support is of an interim nature however, providing help to get through the next few months while we wait to see what happens with COVID. This will be great if in the end we come out this collective experience with a vaccine, or a cure, and everything goes back to the status quo ante. Personally, I’m not betting on it. I have a feeling that we’re in this for the long-haul and that COVID—or the next pandemic—is going to require us to do some things differently on a more permanent basis. One of these will be the ways in which we interact with culture and consume content. But first we have to figure out how to sustain the sector economically.

There are various measures that can be taken to address the financial challenge that creative industries and professions are facing, although some painful adjustments are, I think, inevitable. With regard to the US, the Brookings study comments that;

“Small, stop-gap measures will not undo the damage; a substantial and sustained national creative-economy recovery strategy is required. This strategy must be bottom-up, but supported across the board and led by local public-private partnerships between municipal governments, arts and cultural organizations, economic development and community groups, philanthropy, and the private sector, with support from federal and state levels of government, national philanthropy, and large corporations.”

Brookings also notes that;

“…technical support is also needed (especially for smaller organizations) on how to conform with health and safety requirements as well as how to adapt their business models in light of a protracted period of restrictions on live performances”.

Going local might be the only alternative, just as domestic tourism has been encouraged to offset declines in international travel.

With reduced demand for large cultural events as a result of social distancing, there is an opportunity for communities to shift to locally sourced culture. Communities can develop strategies to hire local creatives and create online portals and platforms to allow residents and businesses to hire local artists, musicians, and performers for smaller-scale, local events.”

Locally, I have recently been to a performance of our ballet company, with just 40 people in the audience. The hall was set up cabaret style, limited to a “social bubble” of four at a table, and no table-hopping. Hand sanitizers decorated the cabaret tables along with a small bouquet. People were escorted into and out of the hall, with no mingling. The tickets included a generous donation, with a tax receipt, to the company. It is one way to survive for the time being and give young performers a chance.

While performing arts faces particular challenges, the film industry, music and publishing have been adapting to change brought on by digital technology for a number of years. COVID will accentuate those changes; for film production this will mean collapsing cinematic and streaming windows as the bricks and mortar cinema model faces new challenges; for music it will mean fewer live shows (an important revenue earner) and more reliance on thin online revenues; for publishing it will mean continuing to find ways to preserve the value proposition of physical publications. Greater reliance on digital platforms means greater susceptibility to digital piracy, and even greater efforts will have to be made to equip rights-holders with the means to combat piracy. 

Some elements of the cultural landscape will be changed permanently. There will likely be a shake-out when it comes to theatre, dance, classical music groups and artists, with the strongest surviving and others going out of existence.  Some creators will leave their professions to earn a living elsewhere. We will all be the poorer for this winnowing, although perhaps we will better appreciate the cultural entities and individual creators who survive.

I have no crystal ball, so as we now struggle through the second wave of COVID it is hard to know how our world will be changed. It is unlikely that we will ever go back to way things were pre-pandemic, but what the “new normal” will look like is still only emerging. In the meantime, let’s try to hold on to what we have, support and encourage our creative communities as best we can, and give thanks for the intangible yet essential nutrition we get from our creative industries and cultural communities.

© Hugh Stephens, 2020. All Rights Reserved.

Remembrance Day, COVID—and Copyright

Credit: Author selfie

It’s that time of year again, with bright red poppies popping up on lapels of TV newscasters, politicians and members of the public (at least in Canada and the UK), just as surely as snowdrops appear in spring. I wrote about this phenomenon in a blog last year, reproduced below, covering the history of using poppies as a token of remembrance, and discussing some of the intellectual property controversies that have arisen over the unauthorized use of poppy designs. Unauthorized uses seem to be a feature again this year.

Remembrance Day, 2020, will be different from those in the past.  COVID-19 has changed many aspects of our lives and November 11 is no exception. There will be no parades, no mass wreath-laying at cenotaphs around the country, no crowds gathering to mourn and show respect, and the lone piper playing the lament will be very much a lone piper–but there will still be poppies. This year they will be sold more remotely than in the past; you won’t find older men and women with blue blazers and Legion berets standing in shopping malls with trays of poppies. In Canada the Royal Canadian Legion (who hold the trademark for poppies when used for commemorative purposes) have initiated a touchless “Pay Tribute” credit card tap-enabled donation box in conjunction with one of the major banks. You can also purchase a digital poppy to display online. And of course you can purchase poppy-themed anti-COVID masks.

The Legions in both Canada and the UK market a variety of poppy themed items –Marks and Spencer has teamed up with the Royal British Legion to produce a “Poppy Collection”, a 12 piece line featuring socks, ties, cufflinks, bracelets and earrings, among other “essentials”–and masks have been added this year to the Legions’ repertoire. The official Legion masks on offer, however, are not particularly alluring, at least in my view. Masks have become a bit of a fashion statement (certainly in Canada where mask-wearing is generally not considered to be a political statement but rather a health measure), and retailers have been quick to fill the gap. In Canada, the Legion is marketing a sole mask design, featuring maple leaves, a small poppy and the Legion’s logo. To me it looks more like a promo for the Legion than a symbol of remembrance (although it seems to be selling well as they are now out of stock). A Remembrance Day mask delivered post November 11 has about as much value as a Christmas present delivered on December 26.

However, if you want a catchy poppy-themed mask, for example one featuring the timeless phrase “Lest We Forget”, or one with WW1 soldiers highlighted against the sky, or planes flying low over the countryside, or even a field of poppies, you will have to go to Redbubble or Etsy for masks produced by independent artists. These almost certainly violate the Legions’ trademark rights, and given the way Google Search works, when you search for poppy masks from the Legion’s Poppy Store or Poppy Shop, the first thing to appear is an ad from Etsy. Both Etsy and Redbubble are known for a somewhat cavalier attitude to the trademark and copyright status of products on their sites. They take the position that they are platforms—therefore they hear, see and speak no evil. If there is copyright violation, it is the artists or sellers who are doing it. If an IP owner in the US requests that the products be removed, they will do it, but don’t be surprised if the offending items are back up on the site again within a few days.

The sales from products on commercial sites like Etsy and Redbubble do not go to veterans, so perhaps the British or Canadian Legions will take action, although it may not be worth their while to do so. A few years ago, a group of eager knitters of poppies, who intended to donate the proceeds of their work to the Royal Canadian Legion learned to their chagrin that the Legion refused to endorse their work and reminded them of the Legion’s IP rights. It’s not clear whether any action was taken and this year there is a story about another well-intentioned person from a military family making and selling poppy masks in order to raise funds for veterans. The Royal Canadian Legion is unlikely to go after this Manitoba woman but it is careful to protect its intellectual property as the copyright notices on its website attest. However, none of the non-authorized designs that I have seen appear to have been copied from either of the Legions’ websites (if so, they would infringe copyright) although they arguably violate trademark rights. Probably the best thing that the Legion can do is to offer a wider and more attractive range of mask designs in future and ensure that they have enough stock on hand to meet demand.

Ideally, none of us will need masks by the time Remembrance Day 2021 rolls around so this may be a one-time story, at least insofar as the design of poppy masks is concerned. Let’s hope so.

© Hugh Stephens 2020. All Rights Reserved.

For those interested in reading more about poppies and intellectual property concerns, here is my blog on this topic published in November last year.

Remembrance Day Poppies and Intellectual Property Controversies

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

Today, in particular in Canada and the UK, Remembrance Day is marked by the wearing of poppies. They spring up on the lapels of TV news broadcasters, politicians, and members of the public like mushrooms in autumn. In the US, although they are not so ubiquitous as north of the border or in Britain, they are more typically worn on Memorial Day, which is in May, and in Australia and New Zealand I am told that poppies generally blossom around Anzac Day, April 25. (When I was in Sydney last November 11, I spotted just one red poppy, an admittedly unscientific although first-hand survey). It is probably fairly well known (although with today’s young people it is probably wrong to make assumptions) that the wearing of the poppy is a memorial to the sacrifices made by those who fought and died, initially in WW1 for the Allied cause. Poppies grew prolifically in the killing fields of Flanders in Belgium, and still cover the countryside today. The poppies were made famous by the poem “In Flanders Fields” written by Canadian military doctor John McCrae in 1915 after seeing poppies on the battlefield after the loss of his friend in the second battle of Ypres.

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

What I love about writing this copyright blog is that one can always find a new twist. I confess that I am fascinated by the nooks and crannies of copyright, such as the blog posting I wrote on “Copyright and Your Carbon Footprint”, or the blog on whether copyright is gender neutral (I argued that it was. That was like poking a hornet’s nest!), or a rather bare-bones effort on copyright and death, or last week’s posting on copyright infringement as a form of hybrid warfare. So, since Remembrance Day is upon us, I feel compelled to explore whether there is a copyright angle to the wearing of poppies. And surprise, there is.

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

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

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

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

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

And what are the materials marketed on the site? Just about anything that you can stick a poppy symbol on—playing cards, bags, baseball caps, pins, brooches, watches, T-shirts, magnets, umbrellas, scarves, toques, mittens, stuffed animals, even cellphone cases. You get the idea. And then there are digital versions of the poppy that you can purchase and use to embellish your Facebook page. All the proceeds go to the Legion and then on to its veterans welfare programs (although the Legion is not a registered charity). Nevertheless, the Legion IP monopoly on the poppy symbol (when used in connection with remembrance) has not been without its critics. Sean Brelyea, a former air-force officer and frequent commentator on veteran’s affairs, has argued that the Legion should no longer have exclusive control of the poppy symbol since it is not the only veterans organization in the country and, indeed, as the numbers of their veteran members has dwindled over the years owing to “natural attrition”, many of the Legion’s members have no association with veterans at all. Brelyea suggests that the Legion should licence use of the poppy symbol to other veterans’ organizations, with a concomitant sharing of the proceeds. I am sure that the RCL would argue that it alone is best placed to protect the meaning of the symbol and to ensure that poppies are effectively distributed in order to bring maximum returns. Last year over $16 million was raised.

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

© Hugh Stephens 2019. All Rights Reserved

Twenty-five Years of US-Vietnam Cooperation—Don’t Let “Decree 06” and Ongoing Piracy Spoil It!

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How time flies! That is a truism we are all familiar with, but it was brought home to me forcefully when I was reminded by friends still living in Vietnam that this year, 2020, marks the 25th anniversary of the establishment of diplomatic relations between the United States and Vietnam. These two nations fought one of the most protracted, divisive and bloody wars in recent history, yet they have both been able to put this behind them and work together to create, in Vietnam, one of the most dynamic economies in the region. Since the establishment of diplomatic relations between the two countries on July 11, 1995, and the conclusion of the US-Vietnam bilateral trade agreement five years later, Vietnam has continued to open its economy. It joined ASEAN in 1995, became a member of the World Trade Organization in 2007 and is one of the eleven founding members of the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), which came into effect for Vietnam in early 2019. Its export-led economy, a hybrid capitalist-guided socialist model, has enabled it to increase its GDP ten-fold over this period and it has embarked on a number of domestic economic reforms that have opened up many sectors of the economy, including in areas close to copyright.

The US has provided considerable assistance in terms of funding over the years, ranging from health initiatives to capacity-building in the area of policy development. Vietnam has largely opened to the world, both in terms of tourism (until COVID hit earlier this year), manufacturing and services, and the Vietnamese people have greatly benefited from these developments. At times there have been setbacks and even missteps, but the overall thrust has been forward.

I well remember back about 15 years ago when Vietnam was beginning to open its television market to satellite and cable providers. It decided to “experiment” by “borrowing” satellite content without authorization and rebroadcasting it domestically through a state-controlled platform to test demand. When those of us then in the industry pointed out to the responsible Minister at the time that this content was unlicensed, indeed “pirated”, this led to some uncomfortable moments but also a sensible re-evaluation of Vietnam’s position. As a result, what was in effect state-sanctioned piracy quickly ended and Vietnam established a thriving pay-TV industry, with subscriptions more than doubling between 2010 and 2017, and pay-TV penetration reaching 37% of households. This has brought enormous benefit to the entire industry ecosystem. Now, as is the case in many countries, the configuration of the industry is changing as the growth of subscription satellite and cable television slows down and as streaming options take off.

Vietnam is now a vibrant market for over-the-top (OTT) streaming and Video-on-demand (VOD) services. However, there is a significant black cloud on the horizon, Decree 06. This has been around in draft form for several years, and despite various amendments is still extremely problematic. Decree 06 is being sponsored by the Authority of Broadcasting and Electronic Information (ABEI), the regulator that falls under the Ministry of Information and Communications. If enacted in its present form, it would constrict the ability of VOD services to participate in Vietnam’s digital market. Although supposedly designed to harmonize regulations between VOD and traditional broadcasting, and protect Vietnamese culture, the proposals will be counterproductive. Enactment will move Vietnam away from best practices in the region led by countries such as Singapore and Malaysia that treat VOD with a light regulatory touch, and closer towards China’s e-commerce model. Of most concern is a licensing scheme that would require a local presence through a forced joint venture, and onerous censorship requirements.

Experience in other markets has demonstrated that heavy-handed regulatory measures don’t work as intended. Indeed, they often have just the opposite effect. A licensing requirement through a forced joint-venture with a local company, or licensing through a local company, would discourage investment in Vietnam. Foreign investment has proven to be a strong catalyst for the development of creative industries around the world.

Classification and censorship is yet another issue. Curated content services have developed practical and sophisticated parental controls that empower parents to take control over what their children can watch. Many governments, such as Malaysia and Singapore, are moving towards a self-regulatory model to address such concerns. Other countries, like Australia, New Zealand and India have also recently announced that they are working with industry towards a self-regulatory model within a legislative framework. This will permit self-classification, after certain conditions have been met. Vietnam should pursue similar options. Decree 06 is the wrong solution.

And then there is the ever-present challenge of piracy. At one point, Vietnam was host to one of the world’s largest illicit streaming sites, 123Movies. It was suddenly shut down by the Vietnamese authorities back in April of 2018–an encouraging move–but this type of enforcement action has not been consistent. Today, some of the most egregious piracy sites and services in the world still operate out of Vietnam, inflicting damage not only on the nascent local market but also on many international markets. A noteworthy example is the free streaming website ‘Phimmoi’. This is a Vietnamese-language site that offers thousands of unauthorised feature film and television series from the US and other countries. Phimmoi was named by the U.S. Trade Representative’s Office in its 2019 Notorious Markets Review and in the Special 301 report. For the 12-month period from June 2019 to May 2020, phimmoi.net received a total of 862 million visits (a monthly average of 71.83 million visits), with 98% of this traffic coming from Vietnam. Local rightsholders have attempted to have the site dealt with, but the operators have been able to continue undeterred.

It is distressing to see Vietnam potentially taking a backward step by limiting access for content services and failing to seriously address piracy, particularly as it has made so much progress, and just when it is marking a milestone in its relations with the United States. The US is a strong proponent of open digital markets, and US industry is committed to working cooperatively with Vietnam in this area. In fact, in this vein, to celebrate the 25 years of US-Vietnam cooperation and friendship, in April the Motion Picture Association in partnership with the US embassy, the Vietnam Film Development Association (VFDA), and others, hosted a “Pocket Filmmaking Masterclass” on smartphone technology with Australian filmmaker Jason van Genderen. Over 150 people tuned in for the event, a majority of whom were emerging Vietnamese filmmakers.

This is the sort of win/win cooperation that benefits the content ecosystem in Vietnam and internationally. It is the sort of cooperative activity that supports open markets and the creation of legitimate content, bolstering the bilateral relationship. Ignoring piracy and imposing a flawed and narrow regulatory regime such as that represented by Decree 06 will have just the opposite effect. Decree 06 has languished in various drafts since at least 2016, and it’s high time to end its misery and put it on the shelf—permanently. Now that would be a good way to celebrate 25 years of cooperation and friendship!

© Hugh Stephens, 2020. All Rights Reserved.

Supreme Court Agrees to Hear Appeal in York v Access Copyright Case: What Does This Mean for Copyright in Canada?

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Last week the Supreme Court of Canada (SCC) agreed to hear the appeal of the Federal Court of Appeal’s (FCA) decision in the ongoing saga of York University v Access Copyright. Back in April, the FCA overturned the established order in the Canadian copyright world by ruling that what had always been understood to be “mandatory tariffs” (i.e. fees established by the Copyright Board of Canada that were applicable to all unlicensed users of any content that was licensed on behalf of its members by a copyright collective) were, in fact, not mandatory at all. Mandatory tariffs were a long-established way of dealing with the “free rider” problem. While legal clarity is always desirable, the Court’s decision to grant leave to appeal should not rule out some urgently needed legislative fixes to Canada’s creaky copyright framework, both on this topic and on fair dealing in education.

At the same time as it issued its mandatory tariff decision, the FCA also upheld a lower court ruling that the Fair Dealing Guidelines used by York University to guide its students and teachers in the use of unlicensed material–guidelines based on those produced by Universities Canada for its members–were not fair in either their terms or application. Both parties appealed to the SCC, Access Copyright on the mandatory tariff question and York on the fair dealing issue. The Supreme Court declines to hear the majority of cases appealed to it, so its acceptance of these appeals may signal that it wants to add some much-needed clarity to Canadian jurisprudence in this area.

But here’s the problem. Now that the SCC has agreed to take on the case, it may be a very long time before a decision is reached. The issues are complex and the Court’s docket is charged, a situation made all the worse by the COVID-19 pandemic. In the meantime, the uncertainty caused by the FCA’s unusual decision on mandatory tariffs threatens one of the fundamental cornerstones of copyright and the business model of collective management organizations. Collective licensing was established as a way of avoiding endless and costly litigation. One of the reasons why collective societies exist is to provide the strength of a collective entity to negotiate licences with users on behalf of individual authors and publishers, but also to provide a mechanism for licensing that avoids the need for litigation, thus serving both rights-holders and users. This has all now been upended.

While a Supreme Court decision overturning the FCA’s mandatory tariff ruling would be one way to restore balance, the slow pace at which the case is likely to proceed will prolong the financial and legal uncertainty hanging over copyright industries. The case could drag on for years, and of course there is no way of knowing how the SCC will eventually rule. As I noted in a blog last month, “Undoing the Damage of the Federal Court of Appeal’s Decision on ‘Mandatory Tariffs’”, a much more expeditious solution would be for Parliament to clarify its intent through minor amendments to the Copyright Act. However, amending the Act is not something done every day–the last major revisions were in 2012 when “education” was added to the list of fair dealing purposes, in retrospect an ill-advised move that helped to precipitate the present lawsuit.

With a government preoccupied with responding to the health and economic challenges of the COVID-19 pandemic, copyright reform may not seem to be a priority. Nonetheless there are a couple of compelling reasons to re-open the copyright file. The first is a process issue: Canada’s commitments in the recently concluded CUSMA Agreement (aka the new NAFTA) require it to extend its term of copyright protection by twenty years. This process must be completed no later than December 31, 2022. The second is concern, as expressed in the recent Speech from the Throne (SFT), that content providers in Canada are being given short shrift by the major international internet platforms. The SFT stated, in part, that;

“Web giants are taking Canadians’ money while imposing their own priorities. Things must change, and will change. The Government will act to ensure their revenue is shared more fairly with our creators and media…”

Copyright is not the only way to address this issue, but it is one way, and from his public comments it appears likely that Heritage Minister Steven Guilbeault will be developing legislative options to tackle the problem. (It is worth noting, however, that Heritage is not the Ministry with final responsibility for the Copyright Act. That falls to the Ministry of Innovation, Science and Industry).

Just the same, the door is open to reviewing the Copyright Act. This review could clarify uncertainties regarding the status of mandatory tariffs even as the SCC examines the issue, and it could also clean up some of the mess arising from the 2012 Copyright Act revisions such as the uncertainty that has been created as to what “education fair dealing” actually covers. Educational authorities and institutions have used this “exemption” to try to drive a truck through any protection that copyright provides authors and publishers for use of their works in the context of education. It is one thing for students to be given access to limited portions of published works without payment as part of their studies; it is quite another to have major educational institutions and ministries refuse to license content for course packs and other teaching materials simply because they think the new exemption gives them carte blanche to take whatever content they want, in virtually unlimited quantities, all in the name of “education.” Saving money on educational materials is good for the institutions’ bottom line, but why should authors be subsidizing this sector?

There are reasonable solutions available, such as limiting fair dealing uses for private study and educational purposes to materials that are not commercially available. This would give students and educational institutions broad access but preserve the ability of authors and publishers to recoup some return from the use of their content within the important educational sector. Clarifying the fair dealing exceptions would help eliminate the seemingly endless litigation that was a major outcome of the 2012 copyright amendments and is another important role that Parliament could play in bringing forward legislation. 

The COVID-19 pandemic has further reinforced the need for action by Parliament to fix some of the broken elements in Canada’s copyright laws. As I noted in a recent op-ed in the Globe and Mail, the pandemic has exacerbated the challenges that creators face in terms of presenting their work and talents to audiences and, equally important, earning a living. As it responds to the challenges brought about by COVID-19, Parliament has an opportunity over the next year to get copyright “right”. Legislative amendments are needed to restore a balance to copyright where creators—musicians, authors, artists, and other genres—are incentivized and rewarded for creating the cultural fabric so necessary to our quality of life, especially at a time of increasing isolation and lock-downs.

The Supreme Court will in time provide some direction on the legal issues surrounding fair dealing and mandated copyright tariffs, but Canada’s creative industries cannot afford to wait, particularly in the face of the current economic shutdown brought about by the pandemic. Legislation to fix the anomalies in Canada’s copyright laws is needed–and is needed now. The necessary impetus and political will to deal with copyright issues does not come around often and is unlikely to be repeated anytime soon. The current window of opportunity should not be missed. If anything, the SCC’s granting of leave to hear the York University v Access Copyright appeals strengthens the argument for Parliament to deal with these issues in the short term, providing needed guidance to the Court and clarifying Parliament’s intent.

© Hugh Stephens 2020

Google in Australia: Dangle the Carrot, then Yank it Away

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Last week I praised Google for its News Showcase initiative in which it announced it would be paying US$1 billion (over three years) to news content providers to create a new product on Google highlighting news features. These features would be drawn from and created by news sources that agree to contractual arrangements with Google. The countries to be included in News Showcase, according to Google’s announcement, are Argentina, Australia, Brazil, Canada, Germany and the UK (in alphabetical order).

The reaction from publishers was decidedly mixed. Some welcomed the opening, looking forward to talks with Google while others criticized the move as keeping all the cards in Google’s hands by dictating terms and conditions. The initial line up of partners was, with some exceptions, not particularly impressive in terms of name recognition. In fact, part of Google’s approach may have been to sign up smaller players and play them off against their larger traditional media competitors.

In the case of Canada, only two small virtually unknown pure-play digital outlets were listed, Narcity Media and Village Media. Having announced that Canada was to be part of the new arrangement, Google promptly suspended implementation of Showcase in Canada until more media partners were signed up. Noteworthy is the fact that no mainstream media, who have been complaining vociferously to the Canadian government about the need for action to help them corral a portion of the revenues that giant digital platforms generate off the back of their news content, have agreed to terms with Google. The Canadian government, in announcing its legislative priorities for the coming Parliamentary session, noted that it intended to ensure that “web giants” share revenue more fairly with Canadian creators and media. So Google responded, sort of, and then pulled back.

Its tactics were even more blatant in Australia where the government has proposed a “News Media Bargaining Code” that would require Google (and others in a similar position, such as Facebook) to reach agreement with news providers within a defined period. The Code, if adopted, will be administered by Australia’s competition authority, the Australian Competition and Consumer Commission (ACCC). In the current draft, an arbitrator would determine the direct and indirect value of news content to the platforms, the cost of producing it, and evaluate the impact of payment on the platforms. Both Google and Facebook have objected strongly to the proposed Code. Google has threatened that if it is implemented in its current form, Australians may lose access to Google Search, a response that Australia’s Treasurer Josh Frydenberg has characterized as “bullying”.

Google has now moved beyond bullying to what many would call blackmail by announcing that it has no choice but to suspend implementation of the agreements that it had reached with five smaller but respected Australian news providers (as in Canada, none of the major industry players have signed on), because of the ACCC’s proposed code. This is a thinly veiled attempt to increase the pressure on the Australian government and the ACCC, which has said that it will be bringing forth amendments and final recommendations after receiving and evaluating public input. During the public consultation phase Google, through Youtube, encouraged Australians (and others) to swamp the Australian regulator with complaints about the proposals. Putting on the table, and then withdrawing, offers to share revenues with Australian media is yet another pressure tactic. As the Chairman of the ACCC is reported to have remarked (drily), “We note that the timing of these offers appears to coincide with increased Government scrutiny both in Australia and overseas”. Truer words were never spoken.

What is not yet clear is the position of the US government in all this. Will they champion Google in its fight with the Australian regulator? Google would love to be able to enlist the US government on its side, and invoke the Australia-US Free Trade Agreement as an obstacle to implementation of the ACCC’s code, but so far there is no indication that a broadly based competition regulation would be discriminatory and thus violate the Agreement, even if the immediate targets happen to be US companies. Both Google and Facebook are under increasing scrutiny back in the US by both Congress and the Trump Administration for anti-competitive activities, so it is unlikely that the US government will be unreserved and uncritical champions for them.

That said, the Trump Administration has pushed back strongly on efforts by some EU countries and Canada to subject the internet giants (Google, Amazon, Facebook, Apple) to more domestic taxation based on revenues generated in those countries. The tax issue was punted to the OECD to develop an internationally agreed code but in June the US ended its participation in the negotiations, following the standard playbook for this Administration—taking unilateral action. Presumably, the concern is less about the impact on the companies and more on the impact on US tax revenues. Nonetheless, taxation and anti-trust are two separate issues. Australian media reports indicate that the US Trade Representative’s Office submitted a brief to the ACCC, but the focus was on caution and taking time to fully assess the implications of the Code.

The next step will be the release of policy recommendations by the ACCC following its consultations. Maybe there will be some tweaks that will mollify Google. Or maybe Google will continue to try to change Australia’s policy approach with further “carrot and stick” tactics. It has not been reluctant to wave the big stick (threats to cut off access to search), which did not go down well. Now it has produced the carrot, but after dangling it and allowing a nibble, it has yanked it away. What will its next move be? Stick or carrot?

© Hugh Stephens, 2020. All Rights Reserved.

Did Google Just Blink?

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The announcement on October 1 that Google will be paying $1 billion (over three years) to news publishers to create curated news content for Google News is a welcome sign that Google is finally starting to wake up and smell the coffee. Coming on top of its announcement in June that it would begin to license some content from news creators, the most recent move is an indication of a crack in Google’s usual strategy, which is to double down on existing positions backed by its deep pockets and an army of lawyers and lobbyists, combined with threats of abandoning a given market or service to put pressure on publishers to back off, or on the public to get their governments to back off.

Google’s “never give an inch” approach has been most evident in its fight with news creators over its practice of using news snippets (without permission or licensing) to attract viewers to news topics on its service. As it demonstrated in Spain and Germany a few years ago when authorities in those countries attempted to legislate revenue sharing arrangements between platforms and news publishers, Google has enormous if not monopoly power. At that time, Google simply shut down Google News in Spain, and in Germany removed from its news platform any news provider that did not agree to voluntarily give Google access to content without payment. Google’s retaliatory measures made it more difficult for consumers to access news content, impacting views on the publisher’s sites, and soon brought them to heel. France is the latest EU state to take on Google, as I wrote about back in April (“Holding Google to Account: France Takes A Stand”), using competition law to require it to enter into meaningful negotiations with publishers. So far it appears that those negotiations are going nowhere.

Australia is also trying to get its arms around the Google dominance problem with regard to news content and diversion of advertising revenues, rolling out a proposed News Media Bargaining Code to be administered by Australia’s competition authority, the Australian Competition and Consumer Commission (ACCC). In response, Google has mounted a scare campaign threatening that Australians could lose free search and privacy protections, as a way of getting consumers to pressure the government to back down. This has not gone down well “Down Under”, with strong reaction to what are being described as bullying tactics by Google.

Google’s trench warfare approach to negotiations and legal challenges was best illustrated by its unwillingness to comply with an injunction issued by the Supreme Court of British Columbia (BC) requiring it to delist from global search results listings for a rogue company that had wilfully violated the intellectual property of another Canadian company. Google appealed that decision all the way to the Supreme Court of Canada (Google v Equustek) and lost. Google then tried an end run on Canada’s Supreme Court by seeking to get the order invalidated in the United States (even though it was never intended to be made applicable in the US) and having succeeded in that ploy, it returned to the BC Court to get the original order withdrawn on the basis that the Canadian decision required it to violate US law. In fact there is no US law requiring Google to carry any given search listing, and the BC Court declined to vary its decision. I have documented Google’s legal shenanigans in several posts (here, here, here and here).

Another aspect of Google’s modus operandi that is relevant to the news content issue is its penchant for what is sometimes called “permissionless innovation”. This means helping yourself to “OPC” (other people’s content) without asking or paying and, if caught, trying to sort it out later. It is a variation on the old adage of “asking for forgiveness after rather than permission beforehand” except that Google’s variation on this is “claim fair use after rather than seeking permission (or licensing) beforehand”.

This is the tactic that it has used in its ongoing legal dispute with Oracle where Google has freely admitted that it helped itself to Oracle’s Java API (Application Program Interface) software code after it decided that it didn’t like Oracle’s licensing terms; it is now using every trick in the book to claim fair use. Google’s initial gambit that its use was “transformative and minimalist” was thrown out by the Federal Appeals Court. Now, in its Supreme Court appeal, Google is digging for other justifications such as the “merger doctrine”, i.e. Oracle’s code is so fundamental to the operation of the internet that it could not not use it. The fact that it (a) could have licensed it from Oracle and (b) there were other alternatives, such as developing its own code which Google opted not to do because to poach Oracle’s work was easier and quicker, does not strengthen Google’s case.

Google’s use of other people’s work in the area of news content is similar. Take it, and argue that this is actually good for the content provider, and when that doesn’t work, threaten to shut down listings. Anything to avoid paying someone else for the content they have created. Now, it appears, that is about to change.

It would be churlish of me to criticize Google’s apparent change of heart because the shift in attitude is something to be welcomed. However, one cannot but wonder what brought about this sudden conversion. Surely it was not that Sundar Pichai suddenly woke up one day remembering his old grand-dad reading the newspaper every day at breakfast, and having a sudden outpouring of sympathy for the plight of print media. More likely it was the mounting pressure on Google coming from many quarters, Germany, Brazil (where publishers’ objections to Google’s use of their material goes back to 2012 and earlier) France, Australia, the UK, Canada (as I wrote about a couple of weeks ago, here) and elsewhere. In Canada, the Speech from the Throne (SFT) on September 23 that laid out the government’s priorities for the new Parliamentary session noted that;

Web giants are taking Canadians’ money while imposing their own priorities. Things must change, and will change. The Government will act to ensure their revenue is shared more fairly with our creators and media…”

Google has apparently taken note and Canada is among the first wave of countries to which Google will bring its new paid content formula. (Canada, Germany, Brazil, Argentina, the U.K. and Australia were the countries named). Not all the news industry is in raptures, however. The European Publishers Council is reported to have stated that;

“By launching a product, they can dictate terms and conditions, undermine legislation designed to create conditions for a fair negotiation, while claiming they are helping to fund news production”

In Canada, the major publishers represented by the industry association News Media Canada have been pushing the government to take action enabling them to negotiate content licensing deals with major platforms, and this no doubt was largely responsible for the language in the SFT quoted above. The government may choose to approach the issue through regulation, competition law or possibly copyright legislation, but it is clear that Google has now decided to move pre-emptively. To date, however, the only two media organizations listed on the Google Canada blogsite are two small, virtually unknown pure play digital outlets, Narcity Media and Village Media. In Germany, Google has got Der Spiegel onside. In Canada, they will need to show that outlets like the Globe and Mail, Toronto Star, Postmedia, Le Soleil, La Presse and so on are on board if they are to avoid a day of reckoning. So far that hasn’t happened.

What is noteworthy, because of its absence, is any mention in Google’s announcement of US media. Google is subject to lots of scrutiny these days in the US, especially in the anti-trust area. US publishers are no more enamoured with Google’s business model than publishers in other countries, and I can only assume that the absence of any mention of the US in Google’s current plans is because negotiations are ongoing. In fact, with the exception of Der Spiegel and Stern in Germany and Folha de Sao Paolo in Brazil, there is a distinct lack of buy-in by mainstream media anywhere to Google’s initiative.

Nevertheless, what is important is that Google is starting to get the message. After seeing the sticks that several governments are brandishing, or threatening to brandish, Google has reached into its deep pockets and pulled out a $330 million per year carrot. Will it be enough to stem the tide, or is it too little too late? Whatever the outcome, I think it is fair to say that Google just blinked. This doesn’t happen very often and may be a welcome sign that things in the digital world are starting to change for content creators.  

© Hugh Stephens 2020. All Rights Reserved.

Giving the Middle Finger to the Middle Kingdom, and Others: A Tale of “Public Morality, Design, and Just Possibly Copyright

Used with permission of Lao Ganbu

This is a story with many facets. It is about the intersection of copyright and design, but is also an amusing story involving a design application submitted to the Hong Kong Intellectual Property Office by an iconoclastic entrepreneur who sought to register the design shown above, an image that resembles the “good fortune” cat statuettes found in corner stores, offices and restaurants throughout East Asia but with a notable exception, the raised middle digit of the feline’s right paw. It is also about the relationship between Hong Kong and China, the “One Country-Two Systems” principle under which Hong Kong operates as a “Special Autonomous Region” of China, and the extremely cautious “politically correct” positions taken by Hong Kong authorities on any issues possibly related to public order and morality. (One cannot help but speculate on what motivates this).

First, let’s review what we mean by “One Country-Two Systems” (1C2S) and how it is that Hong Kong can make and enforce its own IP laws (as well as laws in other areas) even though it is now a part of China. We have heard a lot lately about the “1C2S” principle because it has come under severe stress and challenge. “One Country-Two Systems” was the special arrangement agreed to between China and Britain, incarnated in the Sino-British Joint Declaration of 1984, a bilateral treaty that helped pave the way for Hong Kong’s return to Chinese administration in 1997. Under “IC2S” Hong Kong retains a substantial degree of autonomy, (except in foreign affairs and defence), including rights and freedoms such as those of the person, of speech, of the press, of assembly, travel, academic research, religious belief, private property and foreign investment, and others (including intellectual property). In addition, Hong Kong is a separate customs territory which operates as a free port. It also maintains its own financial institutions and currency and its own legal system, police force and courts. These freedoms were guaranteed for a period of fifty years after 1997. During the fifty-year period of 1C2S China agreed not to interfere with Hong Kong’s internal affairs. (The question, of course, is what constitutes an “internal affair”).

Of late China has trampled all over Hong Kong’s “1C2S” autonomy with passage by the National People’s Congress of a new national security law for Hong Kong. That law can bypass Hong Kong’s police and courts in cases that China deems to involve its national security and can result in Hong Kong citizens being sent to the Mainland for trial and likely, indefinite incarceration. This exception to 1C2S is supposed to be rarely used and only for severe cases that threaten China’s national security. Well, we’ll see. Since it includes the crimes of sedition, subversion, terrorism and collusion with foreign powers, depending on how those crimes are interpreted and enforced, the new national security law could constrain many of the freedoms supposedly guaranteed to Hong Kong under 1C2S. There is no question that this is an erosion of the autonomy granted to Hong Kong and is a further sign of the gradual assertion of full Chinese control. Apologists for the law claim that it is necessary to curtail unlawful activity that threatens national security.

There is no question that Hong Kong has had its share of what might be considered unlawful activity in the past couple of years, with widespread protest demonstrations, sometimes violent, against actions by the Hong Kong Government to enact a treaty that would allow Hong Kong residents to be extradited to China to face criminal charges there. Demonstrations have also focussed on failure to follow through on measures promised in the Sino-British Declaration to allow for increased voting rights for the position of Hong Kong Chief Executive, and other grievances against creeping extension of Chinese authority in the territory. Whether these protests in support of democratic rights undermine China’s national security is of course another question entirely.

The Hong Kong government has been careful not to rock the boat when it comes to relations with China, and has deployed the Hong Kong police to restrain the demonstrations, often with violence (although to be fair there has been violence on both sides). It is fair to say that Hong Kong officials are “politically correct” to a fault when it comes to how the territory is administered and perceived by Beijing, and Hong Kong’s Chief Executive is seen by many as not standing up for Hong Kong interests against Chinese pressure. This political correctness is well-illustrated in the story that follows.

While “1C2S” is under stress because of the new national security law, it is worth remembering that Hong Kong still retains a degree of legal autonomy and still deals with many issues quite differently from China. One of these areas is copyright and intellectual property (IP) generally, where there is a far higher degree of legal protection for IP and much stronger enforcement than in China.  This helps explain why China is a perennial chart-topper (not a place you want to be) in the annual Special 301 report on IP practices abroad produced by the US Trade Representative’s Office, whereas Hong Kong has seldom made the list, although in the most recent report, it gets (dis)honourable mention for allowing open sale of Illicit Streaming Devices and for insufficient enforcement regarding the use of Hong Kong as a transit hub for traffic in counterfeit goods. However, unlike China, it is not named to the Priority Watch List or the Watch List, the list of IP transgressors identified by USTR annually.

The Hong Kong Intellectual Property Department is responsible for trademarks, patents, designs and copyright within Hong Kong. It is proud of Hong Kong’s reputation as a jurisdiction that respects IP; indeed, this respect for intellectual property is advanced by Hong Kong authorities as one of the territory’s attributes when it comes to attracting foreign investment.

That’s the background. Now to the design registration case at the heart of this blog. The “angry cat” design that the applicant sought to register is based on an age-old Japanese and some say also Chinese icon, the so-called “fortune cat” or in Japanese Maneki Neko. It is a centuries old symbol. What made the angry cat design unique was the modification of the cat’s paw, sporting an upraised middle finger rather than the waving or beckoning gesture that Maneki Neko cats normally have, plus displaying a scowling or contemptuous expression instead of the fortune cat’s usual benign stare. The application for registration was initially rejected on the basis that the design was contrary to public order or morality. The applicant then requested a hearing to review the decision.

What was it about that design that so offended public order that it could not be registered? Well of course it was the “middle finger gesture”. But what exactly does that gesture mean? The applicant, showing no shortage of the creativity that had led him to create the “angry cat” in the first place, claimed that the middle finger gesture does not only convey a message of being rude, contemptuous or disrespectful, but may also convey a message of being humorous, playful or dissatisfied. Moreover, it depends on how a person subjectively thinks about the middle finger gesture. It is commonly used, he claimed, in popular culture and is growing in acceptance. (Some notable examples are Ai Weiwei’s famous middle finger works of art, former Canadian Prime Minister Pierre Trudeau’s so-called “Trudeau salute”, and a host of other notables “flipping the bird” ). The reviewing officer was not buying it. Citing a UK precedent in which the question posed was whether the design was likely to cause “outrage” or be “subject of justifiable censure amongst a relevant section of the public as being likely to undermine current religious, family or social values”, he concluded that combined with the contemptuous facial expression, the design would cause greater offence than just distaste. In fact, he concluded, many “right-thinking” people (a quasi-legal term in the UK implying the broad mass of law abiding citizens) associate the middle finger gesture with the English swear word “fuck” and would find it an offensive and insulting gesture. Besides, children might see it! Imagine how public order in Hong Kong would be undermined if an army of middle-finger gesturing angry cats suddenly appeared in shop windows. Not that refusal to register the design meant that it could not be sold in the territory. It just couldn’t be registered as a design. However, it probably still has copyright protection in Hong Kong, so I hope public order and morality can be maintained.

A design can be protected in Hong Kong through both design registration and copyright law. In Hong Kong, there is no requirement for registration of copyright, and in fact you cannot register a copyright. It is automatic upon creation of the work and normally lasts for the lifetime of the creator of the work, plus fifty years. However,  in a case such as our contemptuous cat, where an article is made by an industrial process and marketed based on an artistic work, if the article is registered as a design, copyright is shortened to 25 years from the end of the calendar year in which the article is first marketed, and if the article is not or cannot be registered as a design, copyright is shortened to 15 years.

A design on the other hand can be registered, and is valid for a period of five years, with five year renewals up to a maximum of twenty-five years. A registered design will give the designer the right to prevent others from manufacturing, importing, using, or selling the design. It can protect the shape, configuration, pattern or ornament applied to an article by any industrial process. In this case, as we have seen, the applicant was denied design registration but will still likely enjoy some protection by virtue of his copyright for a period of 15 years.

The overlap between design and copyright is outlined in an article by Hong Kong law firm Angela Wang & Co., using a teapot as an example;

Registered design will protect the shape and configuration of the teapot only (but) according to the Copyright Ordinance of Hong Kong (Cap. 528), artistic work includes the making in 3 dimensions of a 2-dimensional work and the making in 2 dimensions of a 3-dimensional work. Therefore, if someone manufactures the teapot according to the designer’s drawings without his consent, that person will infringe the copyright of the designer as copyright protects both 2 and 3 dimensional works. Both registered design and copyright can protect the design of the teapot. (However),

(a) copyright protects the design against copying whereas a registered design not only protects the design from being copied, but also against an independent creation which is not substantially different from the registered design;

(b) copyright protects artistic work whereas a registered design protects shape, configuration, pattern or ornament applied to an article by any industrial process, being features in the finished article appeal to and are judged by the eye.”

So, there you have it. Indeed in many jurisdictions, there is intersection if not complementarity between registered design registration and copyright, as in the US (see example here), Canada (here) and the UK (here). Even though our Hong Kong applicant was not allowed to register his creation, he still gets a degree of copyright protection in Hong Kong despite the supposedly offensive nature of that naughty cat image, supposedly undermining Hong Kong’s public order and morality.

Will “angry cats” giving the middle finger salute make it to China? It is unlikely. After all, if they undermine public order in small place like Hong Kong, imagine the consequences in country of 1.4 billion! But there is a sequel to this story that illustrates that some elements of the “One Country-Two Systems” arrangement still exists. The creator of the “angry cat” wanted to register his mark (“chop”) under the trade name  of “Lao Ganbu”, which in Chinese roughly translates as “old official”, usually applied to longstanding members of the Chinese Communist Party. The registration was turned down in China with the explanation that only veterans of the Long March were allowed to style themselves as “lao ganbu”. In Hong Kong, however, the mark was approved. One Country-Two Systems lives! But for how much longer?

© Hugh Stephens 2020. All Rights Reserved.

For those of you interested in getting a limited numbered edition of the angry cat, verified as genuine by the “Lao Ganbu” chop, they can be ordered online from the Hong Kong outlet “Goods of Desire” (GOD). (https://god.com.hk/collections/angry-cat).

Canada’s First Site Blocking Order: What is Driving the Objectors?

Source: http://www.shutterstock.com

Back in November of last year, the Federal Court of Canada issued Canada’s first site blocking order, an injunction requiring a number of Canadian ISPs to block two sites (GoldTV.biz and GoldTV.ca) that were providing pirated streaming content to Canadian households from offshore servers. Since then the target of blocking has shifted as the pirate content distributors play the evasive game of domain shifting, abandoning the original blocked sites while creating new ones. The applicants need to get court approval each time the list of blocked sites is amended, an ongoing game of cat and mouse.

At the time of the Court’s decision, I commented on the diametrically opposed interpretation of the decision coming from different quarters. While noted Toronto IP attorney Barry Sookman praised the decision as “carefully reasoned”, Michael Geist of the University of Ottawa, no fan of copyright (an understatement to be sure), called the decision “deeply flawed”. Geist has been a longstanding opponent of site blocking, and as the strategy of the content providers–who formed a coalition known as Fair Play Canada–changed from initially seeking establishment of an administrative agency that would adjudicate site blocking requests to now seeking court injunctions, Geist’s opposition has shifted as well. Originally, he criticized the Fair Play Canada proposal as being non-transparent and bemoaned the absence of court orders and full due process when identifying which sites to block. Now that a court order has been issued, he has shifted gears and is criticizing the role of the courts, arguing instead that any decision on site-blocking should be made by Parliament through amendments to legislation. (Those supporting site-blocking argue that while the Copyright Act does not specifically mention targeted blocking as a remedy, it does not preclude it. What the Act does provide for is injunctive relief, which the court has granted in the form of the site-blocking order).

While right now Dr. Geist seems to be advocating for a role for Parliament, if Parliamentarians ever get around to considering explicit legislation to enable site-blocking, as Australia has done, I am willing to bet that he will be among the first witnesses appearing to argue against the proposal.

With regard to the Federal Court’s GoldTV decision, all of Canada’s major ISPs accepted the outcome with the exception of one small ISP reseller, Teksavvy, which launched an appeal. At the time that appeal was filed I wagered a rhetorical bottle of Newfoundland Screech that we would see Silicon Valley-funded groups such as the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa (founded by Michael Geist in 2003) seek intervenor status to support Teksavvy’s appeal. I don’t know who to claim my bottle of Screech from but both CIPPIC and the Canadian Internet Registration Authority (CIRA), represented in part by Dr. Geist’s University of Ottawa law faculty colleague Jeremy de Beer, have filed for intervenor status in support of Teksavvy. Their brief can be read here. TorrentFreak did a pretty good job of summarizing the arguments, which fall into several categories.

Most of CIPPIC’s arguments are technical, for example, questioning whether the Court has jurisdiction to decide the question, arguing that the Telecommunications Act is the applicable legislation to regulate site-blocking, and commenting on the nature and extent of foreign site blocking laws.  The intervenors supporting the initial decision, representing a range of content owners and rights-holders, including music, publishing, and sports, argue on the other hand that the Court has competence, that the Copyright Act does not rule out injunctive relief, and the orders are fully in compliance with Canada’s international obligations, among other points. The CIPPIC/CIRA intervention also argues that allowing the blocking of pirate sites undermines the balance between users and rights-holders inherent in the Copyright Act. Their brief states that encouraging the dissemination of works is one of the Act’s core objectives. No doubt this is true, but the protection of rights and allowing creators to reap just reward is also a key objective. It is hard to see how encouraging or allowing the dissemination of infringing/unlicensed/stolen content is consistent with the core values of copyright or the overall objectives of the legislation.

Other arguments, not in CIPPIC’s brief, have been advanced by the appellant Teksavvy, including arguments about freedom of expression and net neutrality. No one in their right mind would consider that blocking offshore websites that disseminate pirated, unlicensed content, while simultaneously pushing advertising for dodgy products and often installing malware on the laptops of consumers foolish enough to think that they are getting something “for free”, is a violation of the freedom of expression. Whose expression? The pirates, or the consumers of infringing content? Surely I don’t need to repeat the obvious fact that free speech has its limits. No one is entitled to claim the right of free speech to deliberately cause harm to others (the calling “Fire” in a crowded theatre analogy) and the right of access to content on the internet is accordingly constrained by the law. Child pornography is the most obvious example but there are a number of others. Illegal conduct does not become legal just because it is conducted online. As the Supreme Court of Canada stated in its landmark decision on Google v. Equustek;  

 “jurisprudence has not, to date, accepted that freedom of expression requires the facilitation of unlawful conduct…”

Although Teksavvy claims it is fighting for internet freedom and not to defend piracy (David vs. Goliath and all that), it is pretty clear that this is all about competing with the large ISPs, some of which are themselves large content providers, such as Bell and Rogers. Not surprisingly, the ISP arms of these companies did not oppose the site blocking order, but nor did any of the other ISPs named in the order. If Teksavvy is permitted to continue providing access to pirated content to its subscribers while its major competitors are either constrained from doing so, or willingly agree not to, this gives “David” a competitive advantage when it comes to finding and keeping customers, especially those whose proclivities tend to consumption of content they haven’t paid for.

If Teksavvy’s motives are not that hard to figure out, I find it really difficult to get my mind around why an institution like CIPPIC, that claims it is a “public interest” law clinic, would be so vigorous in advocating against measures clearly designed to assist legitimate, employment-creating, taxpaying businesses against offshore bad guys, content pirates who contribute nothing in terms of social benefits and whom everyone recognizes are not playing by the rules. Where is the “public interest” in that position. Maybe they just don’t like creators and the content industries? 

CIPPIC’s opposition seems to be driven by an ideological bent to oppose reasonable online regulation in the copyright field on the dubious premise that this will constrain the growth of the internet and internet freedom. (This position is remarkably similar to arguments put forth by Google in any forum where there is an attempt to protect rights-holders and put some reasonable controls on behaviour of internet intermediaries.) Just a coincidence, I guess. To pursue its agenda, CIPPIC employs skilful legal practitioners who dive into the nooks and crannies of the law. That’s as it should be of course, since the law has to be clear, and in the end dispense justice–although sometimes the law and justice are not synonymous. In my view, if there is any justice in the current situation, the Federal Court will dismiss Teksavvy’s appeal, but we will have to see what points of law are considered.

But here’s the rub. Content owners are not seeking to impose their content on unwilling consumers. There is a plethora of legitimate content available at just about any price point. They are also not seeking to constrain freedom of expression on the internet. All they are trying to do is stop organized criminal enterprises from undercutting legitimate businesses that contribute to the Canadian economy and support Canadian cultural expression. Their response measures are proportionate and targeted, and come after a series of frustrating experiences in trying to shut down domestic distributors of unlicensed “Kodi” boxes. How is it in the “public interest” to fight this tooth and nail as CIPPIC is doing? What am I missing here?

© Hugh Stephens 2020. All Rights Reserved.