COVID is Not an Excuse to Throw the Accepted Rules Out the Window: Copyright as the Canary in the Coalmine.


As I write we are in the depths of the COVID pandemic. Each day brings new and more frightening predictions of what is to come, what we all need to do to “bend the curve”, and how it is affecting people globally from both a health and economic perspective. The pandemic is a once-in-a-lifetime challenge to the increasingly globalized world in whiche have grown up, and could have long-term ramifications for the way we conduct ourselves and interact in future. Thus it is all the more important that the accepted and established rules governing our behaviour be respected.

At present, we are all doing what we can to get through the next few weeks, and hoping for the best. The economic impact has been very hard on many industries and workers, and the copyright world has been no exception, with widespread layoffs owing to the need for social distancing which has resulted in closing places of entertainment, libraries, galleries, book shops and so on. At the same time, as I reported in a blog posting a couple of weeks ago, the creative community has responded through offering new online resources for distance learning and entertainment, and there has been an explosion of interest in streaming services for music and audio-visual content. E-books have suddenly leapt in popularity again. As we hunker down in self-isolation, we are relying more than ever on the internet for access to our news, entertainment and education. Content and creativity has never been more important.

For this reason, it is extremely disappointing to see special interest groups taking advantage of the COVID crisis to push their personal pre-COVID agendas. In the case of copyright, this consists of using the crisis to attack the fundamentals of copyright protection, namely the right of creators to control distribution of their work, and thereby to earn a return on the sweat equity they put into the creation in the first place. The anti-copyright forces are not the only ones that are taking advantage of the pandemic to push their objectives; we are already seeing anti-immigration and trade protectionist elements play the same card, using a global health crisis to try to shape the post COVID world. This is unconscionable, and must be resisted by calling it out for what it is; taking advantage of people’s fears and a health crisis to stampede through “emergency measures” that their proponents hope will permanently change the regulatory landscape once things return to “normal”.

In the case of copyright, the first shot was fired by the Internet Archive which declared that it would make its collection of 1.4 million copyright-protected books freely available through its online Open Library, using the COVID pandemic as the pretext. The Open Library’s self-professed goal is to make all works ever published available in digital format. To do this, it scans any works it can get its hands on, and inventories them in its digital library. While it has over 2.5 million public domain works in its catalogue, it is not too particular as to whether a work is in copyright or not; it’s all grist to the Open Library’s mill. While the Internet Archive’s methods and objectives have already come under scrutiny by organizations such as the Author’s Guild, which has questioned the Library’s statement that it respects copyright in its lending practices, the Archive has gone even further under the guise of responding to emergency conditions created by COVID. Although the Library “lends” digital copies to users without having licensed the rights to do so from authors or publishers (when the works are still in copyright), it at least followed the basic lending rules by limiting access to “one-user-at-a-time” in the same way that a normal lending library restricts the number of licensed copies in circulation by digitally recalling copies from users once the lending period has expired. Now however, in addition to helping itself to copyrighted works without authorization (using fair use as its justification), the Archive has announced that it is abolishing any restrictions on lending so that even if a work is out “on loan”, the Open Library will make additional copies available on demand. In other words, it is engaging in unlimited, unauthorized copying and distribution, using the pretext of the COVID pandemic to justify this action.

The Copyright Alliance, an association based in Washington DC representing copyright stakeholders large and small, has called this “copyright looting”, and that is an apt description.  The Internet Archive’s justification is that the pandemic is a national emergency. Its announcement of March 24 lifting all restrictions on access to its collection states, “We hope that authors will support our effort to ensure temporary access to their work in this time of crisis.” Did they ask authors whether they agreed to relinquish their right to be compensated for use of their works? No they did not. The Archive instead unilaterally decided to be generous with someone else’s property. The creative community has responded to the pandemic crisis by making many online resources available either free of charge or at discounted rates, and some authors may indeed be willing to forgo licensing revenues for the duration of the emergency. But surely that should be up to them to decide, not the Internet Archive.

The reality is that many authors are themselves struggling to make ends meet. The Author’s Guild points out that the mean annual writing income of an author in the US is currently just over $20,000. In order to survive, many writers work at other jobs, and many of these jobs have been suspended or terminated in the current crisis. At a time when there may be an increased demand for their work, and the chance to bring in a few extra bucks to tide them over in these unusual times, writers are having their work given away by someone else in the name of responding to an emergency.

The Archive states that it will sunset the new measures on June 30 or when the US national emergency is declared to be over, but they are using them as a further tool to weaken the protection that copyright affords to creators.  Even a pandemic does not provide justification for doing this. It’s not as if there are no other resources available for students or others who are stuck at home. University, community and school libraries are all continuing to operate online. Online bookstores are busy fulfilling orders. No, this is a power grab under the guise of providing a community service during an emergency. It must be condemned for what it is so that when–hopefully soon–this pandemic is under control and life returns to a semblance of normality, the “new normal” will not include institutionalized, widely-accepted copyright piracy.

The Internet Archive is not the only one playing this game. On April 3 a letter endorsed by a wide variety of what can only be described as the “usual suspect” list of anti-copyright organizations and players (including the Internet Archive, former Pirate Party Member of the European Parliament Julia Reda, Young Pirates of Europe-Pan European Youth Organization, and many academics and organizations from the US, Canada, Europe and elsewhere) petitioned WIPO Director-General Francis Gurry “to take urgent action to guide Member States and others in their response to intellectual property issues that the coronavirus is raising”. Among the steps suggested in the letter  is a call on governments to widen exceptions to copyright protection and on rights-holders to remove licensing restrictions that “inhibit remote education, research …and access to culture, including across borders, both to help address the global pandemic, and in order to minimise the disruption caused by it”. This is loaded language.

The suggestion that the licensing of content “inhibits” education and research reveals the true mindset of those behind the letter. From a creators’ perspective, licensing of content has just the opposite effect from inhibition; rather it is an incentive to produce and distribute content more widely. The letter closes by asking WIPO to take “swift and clear action to ensure that the global intellectual property system promotes research, education, access to culture, and public health”. The system does that now so what action is needed? It is not clear what Gurry and WIPO are supposed to do in the name of fighting COVID, but the letter is a broad-brush attempt to smear the entire system of international IP protection. Whether a problem even exists is not substantiated, but for the letter signatories COVID is too good an excuse not to trot out the old anti-IP, anti-copyright arguments. The letter is a solution in search of a problem, using the COVID pandemic as a pretext and smokescreen. The thinking seems to be, “Let’s see how we can use the tragedy of a global pandemic to advance our own anti-IP agenda”. That must not be allowed to happen.

The coronavirus pandemic is both a tragedy and a challenge. We all need to resort to our better angels and pull together to defeat it, not use it to divide one group from another or as a chance to advance whatever hidden or not-so-hidden agendas that one is pushing.  Special interest groups will try to use the coronavirus to deepen the cracks that are already showing in the rules-based system and to use it as the excuse to roll back the accepted and agreed rules of conduct. Whether it is an open, rules-based international trading system, or internationally agreed upon norms to protect intellectual property, or respect for creators and a copyright system that motivates and enables the creation of new content for learning, research, cultural deepening and entertainment, the COVID pandemic must not be used as the pretext to suspend and then fundamentally change the accepted rules of the road. When this pandemic is over, and it will be over, we will need the established rules and practices more than ever as we work to revive the domestic and global economies and restore hope and security to so many people.

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.

© Hugh Stephens 2020. All Rights Reserved.

A Fairy Tale with an Unhappy Ending: Could it Happen in Real Life?


Friends, gather round and let me tell you a fairy tale about the imaginary Kingdom of Nonesuch, and recount something quite surprising and unfair that happened there. Nonesuch is a progressive place, endowed with a well-developed governance and legal system, and a vibrant cultural, technological and educational infrastructure. It is a large country governed through a federal structure, and composed of a number of constituent principalities. North Begonia is one of these sub-national principalities, but there are a number of others. Being a Kingdom, it naturally has a King. Sometimes the Kings have been wise and widely respected, even though they slept a lot; at other times the King has been vain and foolish, and spent all his time watching television. But that is the problem with being a Kingdom. You get what you get. Continue reading “A Fairy Tale with an Unhappy Ending: Could it Happen in Real Life?”

Copyright Industries and Creators in the Age of COVID-19: The Impact and the Response


As I sit here looking out my window at fresh daffodils and cherry blossoms, it is hard to imagine that a potentially deadly virus is stalking the land. Of course I am lucky to be where I am, on Vancouver Island where spring has arrived; in other parts of Canada and the world spring flowers are still a few weeks away, but they will come, COVID-19 or not. And that is important to remember; nature’s cycle goes on and we want to ensure that we take all necessary measures now so that we enjoy many more springs to come. Continue reading “Copyright Industries and Creators in the Age of COVID-19: The Impact and the Response”

AI, Ethics and Copyright


The intrusion of Artificial Intelligence (AI) into our daily lives has raised major questions of ethics among researchers, companies that are developing and using AI, and of course consumers. Already algorithms play an important if largely invisible role in our daily affairs, controlling everything from how our tax returns are assessed, to the ads that we receive online, to our insurability and calculation of life expectancy….and of course many, many more applications. Efforts to combat COVID-19 is the latest manifestation of this, from self-assessment tools put online by various jurisdictions in North America to the app used in some Chinese cities that assigns a green/yellow/red code to personal cellphones.  Without a green code, free movement is impossible. The app is apparently linked to police databases and tracks movements, yet another example of algorithm “mission creep”, even if the goal on this occasion is understandable. But algorithms, seemingly ubiquitous these days, are only a stepping stone on the way to Artificial Intelligence. Continue reading “AI, Ethics and Copyright”

Implementing the USMCA/CUSMA: What Copyright-Related Constraints (and Costs) Does it Impose on Canada—and the US?


The USMCA (called the CUSMA in Canada—just because we like to be different—I will use the two terms interchangeably) has passed in the US Congress and been signed by President Trump. It has also completed the ratification process in Mexico. But in Canada, where Justin Trudeau heads a minority Liberal government, it is still undergoing review in Parliament. To be completely accurate, the implementing legislation is undergoing review, since Parliamentary approval is not required for an international treaty, but when that treaty requires changes to legislation, those changes must be approved by Parliament. While it is a given that this will sail through when a vote finally comes, the opposition parties are making the Liberals jump through hoops by demanding hearings on the legislation, known as Bill C-4. The Bill will amend 24 disparate pieces of legislation ranging from the Copyright Act and Broadcasting Act to the Bank Act, the Canada Grain Act, the Fertilizers Act, the Importation of Intoxicating Liquors Act and on and on. This amalgam of various legislative amendments is required for Canada to be in compliance with its USMCA commitments. Continue reading “Implementing the USMCA/CUSMA: What Copyright-Related Constraints (and Costs) Does it Impose on Canada—and the US?”

Fair Use by Stealth: The “Such As” Proposal in Canada

source: (adapted)

Last week (February 24-28) was “Fair Use/Fair Dealing” week in the US, Canada and some other countries. Many libraries, such as the Association of Research Libraries in the US (ARL has a few Canadian members) and a number of universities in Canada are active in promoting fair use and fair dealing week. It is the occasion to remind ourselves that an integral part of the copyright system is the fair use and fair dealing exceptions built into copyright law. As I have commented in the past, anyone who is an author almost certainly uses the flexibility offered by fair use or fair dealing to enable the creation of new works. Under fair dealing in Canada there are legitimate exceptions to copyright for a number of purposes. These include research, private study, education, parody, satire, criticism, review, or news reporting. For criticism, review, and news reporting, the source and author must be named to constitute fair dealing. (In addition there are other specified exceptions such as “non-commercial user-generated content”, “reproduction for private purposes” and “recording programs for later listening or viewing”, and so on.) Continue reading “Fair Use by Stealth: The “Such As” Proposal in Canada”

Exporting the US “Fair Use” Doctrine to South Africa: The Battle Lines are Drawn


An interesting battle between pro and anti-copyright industries in the US is being played out in submissions to the US Trade Representative’s Office (USTR) regarding whether South Africa should be stripped of its GSP (Generalized System of Preferences) status. According to USTR, “The GSP program provides for the duty-free importation of designated articles when imported from designated beneficiary developing countries.” GSP status can be challenged by US industries on various grounds. For example, the current GSP review is looking at a number of countries beside South Africa, including Azerbaijan and Uzbekistan for alleging denying worker rights, Ecuador for not acting in good faith in implementing arbitral awards and South Africa (and Indonesia) for allegedly failing to provide adequate and effective protection of intellectual property rights. It is the South African case that is of interest here. Continue reading “Exporting the US “Fair Use” Doctrine to South Africa: The Battle Lines are Drawn”