Facebook and Canada’s Online News Act: One More Problem for a Troubled – and Troubling – Company

As Bill C-18, the Online News Act, continues its step-by-step process through the Canadian Parliament, another shoe has dropped. Meta, Facebook’s parent company announced it will be laying off 13 percent of its global workforce (11,000 people) owing to two quarters of losses and a sinking share price. Meta’s valuation is down more than 70 percent so far this year, to levels not seen since 2015. This announcement came just a few days after Facebook executives appeared before the Parliamentary committee (Standing Committee on Canadian Heritage) holding hearings on C-18 to object to the draft legislation because it will require Facebook to negotiate payment with eligible news providers for use of, or facilitation of access to, news content. Their appearance was arranged as a result of the company publicly complaining it had not been invited to testify, notwithstanding the fact it had failed to request an invitation, the normal procedure if a stakeholder has something to say. And Facebook certainly had something to say, given that it is one of two mammoth internet platforms (the other being Google) that are the current intended targets of the legislation.[i]

On a global scale Meta, which owns Facebook, Instagram, WhatsApp and others, is facing a problem common to many companies that become very successful very quickly. Growth is not infinite. As everyone knows, Facebook took an early lead role in the online social networking space and never looked back, gobbling up competitors or putting them out of business. But after almost two decades of success, Facebook’s rose is fading. With the younger demographic, it is no longer the go-to app, with the “cool crowd” migrating to newer platforms like TikTok. History tells us that many companies fail to stay on top, no matter how dominant they are for a time, unless they periodically re-invent themselves. Sticking to the original playbook while the world moves on has negative consequences. Just ask AOL, BlackBerry or BlockBuster. Growth is a heady drug for the market, but unrealistic expectations are often created.

Reinvention and getting ahead of the curve is what Mark Zuckerburg has been trying to do with his bet on the metaverse (the world of virtual reality) without, however, much financial success to date. He may well be on the right track but is a few years ahead of his time. Meanwhile, 11,000 of Meta’s employees are paying the price. This is as an abrupt turnaround in plans. Just a few months ago, Meta was announcing expansion plans in Canada where it was going to hire up to 2500 new staff in Toronto.

All this comes at a time when Facebook is in the sights of various governments because of its market dominance–despite its current challenges–particularly with regard to online advertising. To sell ads, Facebook needs to keep users on the platform. To engage them, you need content. As anyone who uses Facebook knows (and that is most of us—it is pretty hard to avoid) much of the content is provided by the users themselves in the form of posts, photos, and videos. Users also add news items to discussion threads, through articles, snippets and links. The posted news content is often expensively and laboriously produced by media outlets who are in competition with Facebook for ad revenues, yet Facebook and other social media platforms have managed to corner most of the ad market while producing almost no original content of their own. In other words, part of the intermediaries’ product offering is based on freeriding and monetizing the content of others, the “others” being struggling news media whose main source of revenue has gone to the platforms because of the latter’s ability to micro-target users through tracking their online habits. Is this fair? Is this legal?

From the perspective of copyright law, in most cases it is almost certainly legal insofar as snippets or links to news content are concerned. The limited amount of content actually displayed on the platform normally meets the threshold of fair dealing, or fair use in the US. However, infringement of copyright is not the issue. It is market dominance. In other words, it is a competition rather than a copyright issue. Canada is not the only country trying to get its arms around this. Australia has done so, through legislating its News Media Bargaining Code. The US is looking at the issue. The US Copyright Office conducted a review of US copyright law to determine if changes were needed to allow news publishers to better protect their content. The Office recognized that adequate funding for journalism may be at risk but concluded that the “press publishers have significant protections under existing law and…the challenges of funding journalism in the internet era do not appear to be copyright-specific”. In other words, look to other remedies, like competition law, which is the approach taken by Australia and Canada.

Bill C-18, the Online News Act, is following Australia’s example, with some minor tweaks, to require large digital intermediaries (Google and Facebook for starters) to negotiate financial compensation with news content providers for use of news content to attract users. This is not because the platforms are infringing on the copyright of news providers but because of significant market imbalance that is putting in jeopardy the viability of professional media. Governments have recognized that without a professional media, the field is open for misinformation, conspiracy theories, manipulation of the news and other threats to an informed citizenry, a key element of democracy.  But when Australia brought in its legislation, Facebook, in a clumsy move that spectacularly backfired, (“Facebook in Australia: READY, FIRE, AIM”) shut down all news feeds on its platform, including sites that provided public safety information, access to health services, etc. Under a torrent of criticism, it climbed down from this position and was suddenly able to find a way to reach content deals with Australian media, thus avoiding being designated under the Code. (The Australian government also agreed to minor concessions such as giving digital platforms one month’s notice before they would be formally designated, which Facebook claimed as a victory). The platform is now threatening to play a similar game of chicken in Canada.

In his appearance before the Parliamentary Committee studying the Bill, Facebook Canada’s head of public policy Kevin Chan commented that if the Bill was passed in its current form, Facebook “may be forced to consider whether to allow sharing of news content on Facebook in Canada”. If that is not a threat, I don’t know what is. That threat led to an op-ed from Australian commentator Emma McDonald,
Big Tech will threaten, but Canada doesn’t have to listen”. One of the members of the Committee, Liberal MP Anthony Housefather, wrote in another op-ed;

“Whistleblowers have told us that Facebook deliberately caused havoc in Australia in the hopes of intimidating its people and legislators into making the changes it wanted. It blocked fire and rescue services’ pages during wildfire season. Suicide prevention support. Domestic violence services. Kids’ cancer charities. Children’s hospitals. The list goes on and on. The majority of pages were restored only a week later, after the Australian Senate had adopted a bill that included amendments demanded by Facebook.”

In his testimony Chan claimed that Facebook provides hundreds of millions of dollars of free advertising for news publishers by carrying links to their content. From his perspective, Facebook doesn’t benefit from having the content on its platform; it “helps” media. He claimed that the legislation would force Meta to pay for links posted to the platform by the publishers themselves, exposing the platform to open ended financial liability. Let’s be kind and just say this is hyperbole. It is perfectly true that the publishers derive some benefit from exposure on Facebook which explains why they will at times post their own articles to the platform. Will Facebook have to compensate a publisher each time it promotes its own content on Facebook? The legislation says nothing of the kind.

What C-18 will do is to require negotiation of fair compensation for use of news content or providing access to news content. As I wrote in an earlier blog, a version of which also appeared as an op-ed in the National Post;

“The platforms argue that they should not be required to pay news publishers when they themselves have posted the link. The answer comes in the wording of the legislation requiring “fair compensation.” Fair compensation negotiations will take into account the benefit that news publishers gain by posting links to the platforms. That benefit will be offset against the greater benefit the platforms gain by using news content to attract viewers and advertisers. That trade-off will normally be worked out during bilateral negotiations between the publishers and the platforms, with the government stepping in only if there is a failure to reach agreement”

While links are not mentioned in the Bill, facilitation of access to content “by any means” is. This includes links, which will be factored into the negotiation of compensation (a) either “voluntarily” or (b) as part of mandated arbitration. This is how the legislation will redress the imbalance in the online advertising market built on the back of uncompensated content. Meanwhile, Facebook will huff and puff and threaten to block news content on its platform in Canada.

It would be self-defeating for the platform to do so. It is in enough trouble without damaging one of the key attributes it employs to attract users; providing an essential channel for the exchange of information. It may be engaged in broad cost-cutting, and understandably does not want to give up any more of its revenues than it has to (estimates of the annual amount that would accrue to news media from internet intermediaries is in the range of CAD$300 million), but Facebook is not about to shut down news feeds in Canada. That would be a self-inflicted wound that would hasten its own demise by undermining its relevancy for users.

Facebook will continue to oppose the Canadian legislation, just as it did in Australia, because it knows that other governments are watching. That is part of the price of being the big dog on the block. At the same time, it is having to grapple with its own competitiveness issues–although Meta is a long way from being counted out. Watching how these two intersecting issues play out will be an interesting exercise.

© Hugh Stephens, 2022. All Rights Reserved.

[i] Neither platform, called a “Digital News Intermediary” (DNI) in the legislation, is named. Rather, DNI’s are required to self-identify based on a number of criteria if there is a significant bargaining power imbalance between them and news businesses, having regard to the following factors:

(a) the size of the intermediary or the operator;

(b) whether the market for the intermediary gives the operator a strategic advantage over news businesses; and

(c) whether the intermediary occupies a prominent market position.

If a platform does not do so, and if so requested, it must provide the CRTC with sufficient information for the Commission to determine if a given internet intermediary is exempt from being categorized as a DNI.

In Praise of the Extraordinary Power of the Internet—and In Memory of Geoffrey Boisselier Davies (A Personal Remembrance Day Story)

Cover design: Jon Wilkinson; Photo: Author

This blog post, coming at the time of Remembrance (Poppy) Day, November 11, reflects on the enormous, beneficial attributes of the internet—when used for positive ends—but also on the costs of personal sacrifice embodied in the Remembrance Day ceremonies. It is the story of how I was able to pull back the curtains of time to learn more about a relative I had heard of only vaguely many years ago, my mother’s cousin (my first cousin, once removed), Geoffrey Boisselier Davies. It is also a story about how digital tools created by entrepreneurial web-based companies can help us unlock the secrets of the past.

The internet has changed our lives in many ways, for the better and for the worse. It has enabled online harassment and revenge porn but has also been the means by which people have connected, reconnected and fallen in love. It has provided the means for artists and creators to reach audiences they could only dream of pre-internet, but it has also been disastrous to many creators by enabling rampant digital piracy. It has extended the reach of medicine and education and expanded access to knowledge, but has also allowed the invasion of privacy, manipulation of emotions and the spread of misinformation through self-reinforcing algorithms. I have been as critical as any of the failings of the internet in terms of promoting abuse, but we also need to recognize its strong points and many contributions. Perhaps the answer to the misuses to which the internet has been put is providing sufficient oversight and responsible regulation where needed, while encouraging its strong points.

One area where the internet has been a game-changer is searching for ancestral family information. A whole eco-system serving this need has sprung up, dominated by Ancestry.com, a company with a number of spin-offs (Archives.com, which focuses on local history and census data; FindaGrave.com (self-explanatory), Newspapers.com, which contains over 20,000 digitized titles, WeRemember.com, online memorials, Genealogy.com, based on vital statistics, and some others that have changed over the years such as MyFamily.com and RootsWeb.com, both related to family trees. Ancestry is not the only game in town, with competitors such as MyHeritage.com and FamilyTreeDNA.com. Quite apart from these commercial services, there is a plethora of digitized information available through various websites, archives, and other public record offices that can be accessed directly.

In undertaking genealogical research, copyright issues will sometimes arise. You need to be careful if you publish the contents of copyright protected documents. Personal letters are almost always covered by copyright unless they were openly published or written so long ago that they are now in the public domain. The most recent example of this is the case brought by the Duchess of Sussex, Meghan Markle, against the Mail on Sunday, a British tabloid that published her personal letter to her father. The copyright on a letter belongs to the author of the document, not the recipient. Therefore, when publishing family research involving personal letters, care must be exercised. Obituaries are also subject to copyright protection as I pointed out in a blog posting I wrote a couple of years ago, “Obituary Piracy Punished: Has Infringement No Bounds?”

Even services like Ancestry.com have to deal with copyright issues. They catalogue vast amounts of publicly accessible information, plus they provide a platform for users to contribute their own information. In a recent case, Ancestry moved to dismiss a class action lawsuit brought against it for allegedly misappropriating information and photographs drawn from class yearbooks. Ancestry’s defence rested partly on the argument that material appearing in yearbooks is not private and is widely available, including in libraries. As for material that has been contributed by users, Ancestry declines to accept responsibility. Its copyright statement indicates that;

“Content which has been contributed to public areas of Ancestry sites listed above by users remains the property of the submitter or the original creator and we are a licensed distributor of such content. Occasionally, a person may feel that content submitted by another user is their property, or is covered by the copyright of someone other than the submitter. Please remember that we are only the distributor of user supplied content and the submitter, not Ancestry, is the one who has violated copyright if such a violation has occurred.”

While copyright guidelines need to be kept in mind when searching public databases and when using services such as Ancestry.com and MyHeritage.com, both of which work on a subscription basis, many people have harnessed the power of the internet to research their family histories and have located documents leading to family discoveries that would have been impossible to access in a pre-internet era. I am no exception. Here is my personal story of discovery as a testament to the enormous power of the internet if harnessed for useful rather than destructive purposes. It is a story of discovery and finding information that was hiding in plain sight. It is also my way of highlighting the positive outcomes that the internet can provide.

Geoffrey Boisselier Davies

Recently, going through some old family papers, I came across a letter from the late 1980s written by my aunt, my mother’s sister. She was recollecting at my behest what she remembered of family history to try to help me to assemble a family tree, a project I had embarked on at that time. Her letter mentioned a Geoffrey Rees-Davies as she called him, who was the son of my grandmother’s sister, and thus a cousin to both my mother and my aunt. My aunt had written that her aunt and uncle had a son, Geoffrey, who had gone to Cambridge University to study (“read”) law. She said that when the First World War broke out he rushed off to volunteer and, like so many young men, was killed in the First Battle of the Somme (1916). She continues;

When (Geoffrey’s father) Hughes Rees-Davies died he left most of his money in trust for a bursary or scholarship to Selwyn College, Cambridge. I don’t know if it was actually named after Geoffrey…Also, Geoffrey’s portrait and medals were handed over…I can also remember that painting lit up with the medals laid out in a glass case below…The next time you are over in England maybe you should visit Cambridge and see the portrait”.

I did not do so, even though I have been to Cambridge several time since. Frankly, I forgot about it until recently re-reading the letter. I was intrigued and wanted to find out more–about the painting, the scholarship and Geoffrey himself. What if there was a memorial to him at Selwyn College, Cambridge? Had he completed his studies? What did he look like? Etc.

So, I wrote to Selwyn and was put in touch with their very competent and dedicated archivist Elizabeth Stratton. Her initial reply was disappointing;

“…I can’t find any details for a Geoffrey Rees-Davies attending Selwyn and he’s not on the list of those who died in the First World War or included in any of the lists of College pictures. I didn’t recognise his name when I first read your enquiry but wondered if I had overlooked him. But by coincidence, there was a Geoffrey Boisselier Davies who came in 1912 and was killed in 1915 and so a year earlier than the other Geoffrey.”

Oh well, I thought. It was worth a shot. I did have a bit more information that I sent her regarding the fact that the family had lived in Eastbourne on the south coast, which prompted another response a few days later;

Your latest information about the connection with Eastbourne was very helpful and I have now been able to do some more searching on the family history site, Ancestry and more importantly have solved the mystery (well at least part of it)! I have finally found the details for the family and it seems that there was a slight mistake with their surname. (It) was actually…Reid Davies”

She found Geoffrey’s father, Dr. Hughes Reid Davies by searching the English 1911 census documents online. It mentioned he had 2 children, one of whom was Geoffrey’s sister. He was not named (maybe because he had left home by then) but Ms. Stratton then went back to digitized baptismal records and searched for any Geoffrey’s born in London before 1900. She found a Geoffrey Banister Davies recorded but when she clicked through to the actual record, it became apparent that the handwriting was blurred, and the name could have been Boisselier. She then checked the information she had on Geoffrey Boisselier Davies and found a copy of his obituary mentioning his father, Dr. HR Davies!

Ms. Stratton continued;

So I can confirm that Geoffrey Boisselier Davies, as that seems to be the name of your ancestor after all, came to Selwyn in 1912 and was in both the 1914 College football and cricket teams; he was then Captain of the Essex Regiment and sadly was killed in action on the 26th September 1915 rather than 1916”.

With this information in hand, I promptly googled Geoffrey Boisselier Davies and was surprised to find several entries, including one from Wikipedia. It turns out that Geoffrey was an amazing young cricketer who may have one day played for England had he not been killed at the Battle of Loos. ESPN’s Cricket Information page records that he hit 1487 runs in 90 innings and took 141 wickets during his brief first-class playing career (1912-14). He was a right-handed batsman and bowled “Leg-break, Right-arm slow-medium”. His last match was for Essex against Somerset on August 31, 1914, almost a month after the war had broken out. In that game, he scored 118 and took 4 wickets for 18 runs. Cricket record keeping is pretty impressive! (It has that in common with baseball, among other similarities). A bit more digging turned up a book published in 2015 entitled “Final Wicket: Test and First Class Cricketers Killed in the Great War”, by Nigel McCrery, a sad litany recounting the fate of literally hundreds of young athletes gunned down on the killing fields in France. Geoffrey’s image features on centre of the front cover.

But that’s not all I found on the internet. Because he was an officer in the Essex Regiment, he features on several websites that document regimental history, and on Facebook. The account of his final day, September 26, 1915, makes chilling reading;

The Essex men were ordered forward at about mid-day, advancing in the direction of Stutzpunkt 3 from which both shell and machine gun fire began hitting the ranks as they crossed the Lens-La Bassée Road. Part of the Battalion suffered heavy casualties and was forced to take shelter in the outskirts of the village. The remainder of the Battalion went on towards Stutzpunkt 4 but was held up by the uncut German wire. There was little shelter and casualties began to mount until the order was heard to retire. Small parties fell back the way they had come but suffered further casualties as the Germans continued to pour fire into them from Hulluch.

A German officer of the 26th Regiment who were opposing the Essex that day wrote: -“The Battalion Staff was on the left flank…whence we had a wonderful view. The English attacked in whole hosts and with great dash. Our men fired standing up as fast as they could pull their triggers. No Englishmen got through the wire entanglement, and the ground in front was covered with bodies.”

The Battalion were to lose 18 Officers and 353 men that day including Geoffrey and their Commanding Officer. Twelve attacking battalions suffered 8,000 casualties out of 10,000 men in four hours. What a waste of human life. What a waste of youthful potential. Geoffrey had just completed his degree and had been admitted to the Middle Temple to qualify as a barrister. How many of the other almost 375 men from that one regiment on that one day in 1915 could have gone on to do great things, or at least lead normal lives. It is truly shocking to think of the pain so many families endured as their sons, brothers, and fathers were sent to the sausage machine.

I learned all this information with just a few strokes of the keyboard, once the mystery of identifying Geoffrey was solved by Ms. Stratton through her archival sleuthing. I was even able to find a headstone in Ocklynge Cemetery, Eastbourne of his sister Vera (who died in the Spanish flu epidemic of 1919) in which Geoffrey is also memorialized, through FindaGrave.com. The photo was added by a photo volunteer only in 2019. However, Geoffrey’s remains are not in Eastbourne as, along with many others, they were never recovered from the battlefield. His name is inscribed on the Loos Memorial, Panel 85-87, which commemorates 20,000 British soldiers who have no known grave, according to the Commonwealth War Graves Commission.

But what of the scholarship to Selwyn and the portrait? Ms. Stratton came through yet again, managing to locate a copy of the last will and testament of Dr. HR Davies, in which he bequeathed his estate to Rossall School, which Geoffrey had attended before going up to Cambridge. That document made it clear that the scholarship was not designated for a student at Selwyn College but rather for a student at Rossall in financial need, preferably one who was a sportsman, to attend Selwyn. The portrait of Geoffrey, painted posthumously, was also apparently given to Rossall School at that time.

The next stop was, of course, Rossall School, which is a noted “public” (i.e. private) school in Lancashire. I immediately corresponded with the School’s archivist. I would like to tell you that an illuminated portrait of Geoffrey, with his medals, still graces one of the “Hogwart’s” like halls at Rossall, and that the scholarship is still being awarded. Sadly, that is not the case. To date, Rossall School is not able to locate any reference to either the portrait or the scholarship. That is fully understandable as this all happened going on a century ago, but I had hoped that perhaps Geoffrey’s memory had endured at Rossall. That may not be the case, but it has endured on the internet, which to me is perhaps even more remarkable. With the right tools and the right knowledge, the amount of family information that can be located with just a few keystrokes is really quite amazing.

I am still hoping that I might be able to track down the elusive painting and medals as there is a portrait of Geoffrey on the internet (it’s not a very good likeness judging by the photos I have of him both in sports gear and military uniform, so I am assuming it is the posthumous portrait painting). It is attributed to the Essex Regiment Family History Facebook page so perhaps it is hanging in an officers’ mess somewhere.

Geoffrey Boisselier Davies was hiding in plain sight on the internet. Back in 1988, when I first got my aunt’s letter I could never have dug out all this information, photos, and records. Some people have made a very successful business out of retrieving family information, others contribute research as a hobby related to their interest in sports, or history, or just like trudging around cemeteries. This collectivity of knowledge is now widely available. My personal search has taken me from just a name in a letter to staring into the eyes of a young man who, like so many others, gave his life for his country, bringing both pride and grief to his parents. It is just one story, among many, of the lives cut short that we remember on November 11, and of the pain of parents who saw their hopes and dreams for the future evaporate as their children predeceased them.

I would like to extend my thanks to Elizabeth Stratton, Archivist at Selwyn College and Richard McDowell, Archivist at Rossall School for their kind assistance.

© Hugh Stephens, 2022. All Rights Reserved

As a postscript to the penultimate paragraph above, regarding the origin of the portrait of Geoffrey Davies posted on the Essex Regiment’s Family History site, I have been informed that it was taken from the Role of Honour page in the illustrated London daily, The Sphere, dated November 27, 1915. I found that page through the British Newspaper Archive (here). It appears to be a sketch based on a photo. So, I guess the mystery of the missing posthumous portrait remains unsolved.

Hallowe’en, Costumes, and Copyright

Credit: author-generated on Stability AI

As far as grovelling, abject apologies go, this one would win an Oscar. The author was not just “deeply sorry”, she was devastatingly contrite, spelling out in detail how her organization’s newsletter had used language that she described as “denigrating, racist and very harmful”. She admitted the newsletter had caused harm and pain and pledged that the organization (Art Canada Institute) would do better in future, and is committed to deepening its own learning and engaging more closely with artists to improve the Institute’s understanding of their work. What was the heinous action of the Institute that prompted this full-throated mea culpa? The newsletter had linked the work of several artists who express their work through costumes to Hallowe’en!

Just in case you didn’t know, Hallowe’en is no longer an activity just for the fun and delight of children who go Trick or Treating in costumes. It has been hijacked by adults who either dress up at the door when handing out the goodies, or stand costumed behind their little offspring or, as happens frequently, dress up to go parties, sometimes roaming the streets and causing trouble. Some of the costumes worn, usually by adults, are considered inappropriate by today’s standards. (Just ask Prime Minister Justin Trudeau who was famously outed by Time Magazine for wearing a blackface and turban costume back in his youthful days before politics). Just in case you aren’t sure what is inappropriate these days, Good Housekeeping has a list of the 15 most offensive costumes (with examples!). Universities regularly publish guidance for students, (who are supposed to act like adults, and unfortunately often do) hoping they will think twice before dressing up in ways that could be considered offensive by some groups or in costumes that might be considered cultural appropriation. This stating of the obvious by colleges drives some people crazy, complaining that “woke” institutions have no business telling students what or what not to wear off campus. Let’s just say that in the political and social environment in which we currently live, which can variously be described as “acutely attuned to longstanding issues of social justice” or “political correctness taken to extremes”, Hallowe’en is no longer what it used to be. Associating an artist’s work with it can lead to grief, as the Art Canada Institute found out.

According to the apology, which I received by email but which doesn’t appear to be up on the Art Canada website (nor is the offending newsletter);

 “Hallowe’en (is) a holiday that has, both historically and in the present, often led to costumes that are racist, bigoted and cruel in their representation of people who experience intense and systemic discrimination. (It is) also associated with commercialism and triviality…”

Of course, as soon as I received the apology, it sent me scrambling to find the offending material. In what was obviously a light-hearted attempt to leverage the theme of Hallowe’en, the Institute’s October 28 newsletter opened with “As Hallowe’en approaches, we’re looking at how artists in Canada have used the transformative power of costume to trick the eye and treat the mind”.

“For artists, costumes can be constant in their creativity, not limited to October 31. In the works below (eleven artists were featured, 9 of them still living) we share how dress up plays a quintessential role in inspired expressions, the presentation of alter ego, and the realization of parallel universes in which artists provide audiences with both playful absurdities and well as subversive comments on bigotry and oppression…Through the power of costume, lines are blurred between perception and reality and we are presented with new worlds, meaning and possibilities”.

None of that sounds racist, denigrating or harmful to me, but I guess perception is in the eye of the beholder. The two artists no longer in the land of the living, one of them a 19th century photographer, clearly didn’t object, but some or all of the remaining nine artists must have. The images of the works presented were all used with permission, but it appears that none of the artists was involved with the write ups. The descriptions of the sometimes “edgy” works were whimsical but factual, and in all cases there was a link to further information, either the artist’s own website or a scholarly work. The real problem appears to have been the linkage with Hallowe’en, which some likely found offensive for reasons stated above, or because it appeared to trivialize the role of their costume-related art by associating it with the annual dress up extravaganza. It’s all rather unfortunate and unpleasant for those concerned, especially for Sara Angel, Founder, Executive Director and Publisher of the Art Canada Institute. She is herself a well-known art historian and parent to three teenagers (according to her bio)—which may have led to her not looking at Hallowe’en through the same lens as some others. (My speculation).

What the artists were doing, from a copyright perspective, was asserting their moral rights. They retain those rights even if the economic rights have been transferred. Of the three moral rights, (outlined in Canadian Copyright Law by Lesley Ellen Harris), paternity (right to claim authorship), integrity (right to prevent a distortion, mutilation or other modification of the work to the prejudice of the honour or reputation of the author), and association (right to prevent use of a work in association with a product, service, cause or institution), the latter two would seem to be relevant. In this instance, of course, there was no lawsuit alleging a violation of the artists’ moral rights; instead there was a complaint, a discussion and an apology. The most famous legal example of the exercise of moral rights in Canada is the case of artist Michael Snow’s flying geese at the Eaton Centre back in the 1980’s, as I wrote about here.

The “Hallowe’en hook” that the Art Canada Institute used to grab readers’ attention is understandable as it is common practice to use contemporary events to highlight issues to generate interest. On the theme of Hallowe’en, an informative and fun blog was written a few days ago on the “Copyrightability of Jack O’Lanterns” by Sidney Blitman for the Copyright Alliance. In case you’re wondering, whether a carved pumpkin qualifies all comes down to a couple of things; whether the carving is truly original (there are only so many ways to carve a pumpkin, which might engage the “merger doctrine”, which applies when an idea can only be expressed in a limited number of ways, thus denying copyright protection), or “fixation”, which is required under US law. A pumpkin won’t last forever, and it can be asked whether the artistic work carved into the surface of a slowly decaying vegetable (or is it a fruit?) qualifies as fixation. However, as I have written in earlier blog posts (“My Fixation with Fixation”) and (“Copyright Protection for Transitory or Ephemeral Works: Going Beyond the Photographic Record”), a recorded design might be sufficient to establish copyright even if the object no longer exists (like a sand design or, yes, an originally carved and designed pumpkin that has soggily lapsed into a state of mould).

I am sure that the intention of the Art Institute Canada in making reference to Hallowe’en in its October 28 newsletter was to tweak the interest of readers in art linked to costumes by referencing an upcoming event that affects many families. However, the law of unintended consequences kicked in big time, resulting in an abject apology appearing the same day, within hours, when at least some of the artists exercised their moral rights by objecting to the context in which their work was portrayed. While I generally try to avoid Hallowe’en and Hallowe’en parties, in future I will certainly be more conscious of the minefield one potentially walks into when even thinking about a Hallowe’en costume.

The most positive spin one can perhaps put on this is to consider it a “learning moment”. I hope everyone has learned that Hallowe’en is no longer just a fun evening for the kids.

© Hugh Stephens, 2022. All Rights Reserved.

AI and Computer-Generated Art: Its Impact on Artists and Copyright

“Autumn foliage, with Muskoka Chairs in the style of Monet”, generated by author from text prompts on Stable Diffusion platform

If you are not an early tech adopter, you may not have heard of, or heard much about, DALL-E 2. Not being on the cutting edge of hi-tech myself this term had not crept into my consciousness until a couple of weeks ago, while I was up at my cottage north of Toronto enjoying the autumn foliage. While basking on the dock in my “Muskoka chair” (aka Adirondack Chair for my US friends) noodling on my phone, I saw reports that Microsoft will be soon be bringing Dall-E 2 to a laptop near you by integrating it with Bing and Microsoft Edge. Dall-E 2 is an artificial intelligence (AI) program that produces artwork through the use of verbal and textual prompts. Sort of like, “make me a picture of cats and dogs wearing funny hats in the style of Rembrandt”. Or to be more contemporary, “make me a picture of purple dragons breathing fire in the style of Greg Rutkowski”. (More on Rutkowski later).

As I have written about in the past, the expanding use of AI raises many issues for creators and for copyright; see, for example, my blog post on “AI, Ethics and Copyright”. These range from ownership/authorship to liability for infringement to dealing with piracy, both of and by AI-generated content. Who is the author of an AI generated work? The US Copyright Office (USCO) has taken a clear position that there must be a human hand behind an AI-generated work for it to be subject to copyright. As I wrote earlier this year, the USCO rejected on appeal the application for copyright registration of an art work that the applicant claimed was the exclusive creation of a machine (one that he had invented). In the UK, by contrast, there is a provision for copyright protection for machine-generated works where no human author of the work is involved. The term of protection for such works is less than that of works authored by a human.

The ease of producing a passable image through voice or text prompts raises once again the question of who owns the copyright on an AI-generated work, or even whether a work like this can be subject to copyright protection? If I had exercised some skill and originality, mimicking the style of Monet which I had studied from artbooks, online images or the real paintings while looking at the foliage across the lake from my dock, arguably the copyright in the artwork would be mine. But all I did was type in a few words, allowing the algorithm to compile four images from countless impressions of foliage, chairs, docks and Monet paintings scraped from the internet, of which I chose one. The only originality I exercised was the choice of prompts. Moreover, the identical prompts produce slightly different images each time, so there is a degree of randomness introduced into the process by the algorithm. While it is generally accepted that a photograph can be copyrighted, even one taken by an amateur like myself, because in pointing the camera, choosing the location, judging the light etc, I have made some creative choices even though all the heavy lifting was done by my phone camera, even this minimal degree of creativity does not exist with text prompted art.

Credit: Author

However, while issues of authorship will continue to arise and be debated, the most serious current copyright challenge arising from AI relates to the widespread, unauthorized text and data mining (TDM) of copyrighted works. Massive amounts of data are required to feed the AI machines that produce AI-generated artworks through DALL-E 2, developed by OpenAI, or other similar programs such as Midjourney, Meta’s Make-a-Scene and Stability.AI’s open-source AI art generator, Stable Diffusion. (You can try it here, but please don’t input the name of any contemporary artists or artists whose work is still under copyright. Monet—see image on this blog post–died in 1926 and his works are in the public domain).

What is the data the AI machines ingest and process to create a work like the one at the top of this blog post? It is the work of artists; past artists like Michelangelo, Rembrandt, Monet and Van Gogh, all in the public domain, or Picasso or Dali, whose works are partially or not in the public domain, or contemporary living artists with unique styles, like Greg Rutkowski and others. Some 6 billion images were scraped from art sites and other depositories on the internet to create the data base. Rutkowksi is a contemporary Polish artist whose work has appeared in a number of video games. His art-style is notable for fire breathing dragons on eerie futuristic landscapes. As outlined by an article in the MIT Technology Review, his distinctive style is now one of the most commonly used prompts for AI generated art, but this is not necessarily to his benefit. Type “Rutkowksi” into a search engine and you are as likely to get an AI-generated clone of Rutkowski’s work as the genuine article. The AI generated images threaten to swamp his original work and open the very real possibility of being in competition with the original work of the artist. This has led Rutkowski to proclaim that AI should not be scraping and using the work of living artists.

Rutkowski does not appear to be against AI-generated art, but that does not extend to allowing his art to become the feeding ground to train algorithms. Other artists also have an ambivalent attitude to AI “art by numbers”. CBC interviewed a number of artists who saw programs like DALL-E 2 as a “tool” that they could use, although they recognized its shortcomings and challenges. Perhaps one way of differentiating attitudes to AI art is whether one is an established artist, whose work is being used to help generate the program, or an artist who enjoys using the tool to create new art forms and get noticed. Certainly not all the inputs are drawn from copyrighted works. One solution would be to limit the AI crawler to works that are in the public domain.

What can artists do to prevent their works from being used? Because the images are scraped from the internet, one solution is to insert watermarks since some of the web crawlers are programmed not to accept watermarked images. That does not, however, get around the issue that in many instances the AI platform is still violating copyright with impunity. Artists should not have to request that their art be removed from the crawler’s inventory (in any case, this seems to be almost impossible to do), nor should they be required to take defensive measures, or legal action. Lawsuits are almost certainly going to arise. In response, Getty Images, one of the leading providers of “stock images”, (art, designs, photos), has announced that it will not carry any AI generated art. What Getty provides to its subscribers is certainty that the images they are using are legally licensed. Getty has realized that with AI-generated art it may not be able to provide this certainty.

With the application of technology to information distribution and art, we have seen how the law of unintended consequences can prevail. Algorithms can be a useful tool to sort information and offer content to users according to their preferences, but they can also result in reinforcing the biases and intolerances of users, resulting in a closed-circuit echo chamber of hate and conspiracy theories. We have all seen how online discourse, potentially a positive tool to promote free expression and a wider exchange of views, can degenerate and slide into harassment and much worse. In the same vein, AI generated art presents a myriad of challenges in terms of people misusing the technology to create fake or offensive images, to distort artworks, hijack trademarks or a person’s image, etc. While some attempts have been made by the AI art platforms to deal with these problems by installing filters, we all know how ineffective automated filters have been in other online environments. However, while there has been some acknowledgement by the AI platforms that the form of content needs to be regulated to avoid abuse, there has been no self-restraint whatsoever when it comes to freely helping themselves to content owned by others—content protected by copyright–to feed the algorithm which produces work that will likely negatively affect the income prospects of the rights-holder.

In my view, this is the greatest threat that AI generated art imposes—the unrestricted data mining of protected content to produce derivative works that pose a very real threat of competing with the work of the original artist. It behooves all those who treasure creativity, and the protection afforded it through copyright to sound the alarm and push back.

This emerging challenge is enabled by a lax and permissive attitude to text and data mining, all in the name of supporting “innovation”. In the US, the proponents of this unrestricted data mining of copyrighted works for commercial purposes argue that it is “fair use”. Given that the end product scans the entire original copyrighted work and competes with and has a substantial negative effect on its commercial exploitation, it is highly questionable whether uses such as DALL-E 2 and others are fair use. This will surely be tested in court. In other countries, where there is a clear legal definition as to what constitutes a user exception to copyright, there is either no exception for data mining or a very limited exception. However, there are pressures to throw the door more widely open, particularly in the UK, which would set a dangerous precedent. I will follow up on these developments in a subsequent blog.

© Hugh Stephens, 2022. All Rights Reserved.

The DEPA : A Good Beginning, but with a Blind Spot re Intellectual Property (Let’s Take a “DEPA Dive”)

Among the plethora of plurilateral trade agreements covering the Asia Pacific region and beyond—the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), the Regional Comprehensive Economic Partnership (RCEP), and the Pacific Alliance—there is yet another— one you may not have heard of. The DEPA. (Digital Economy Partnership Agreement). What is the DEPA, and who is in it? And how does it relate to those interested or invested in copyright and intellectual property issues? Let’s take a “DEPA dive” (groan) and find out.

DEPA’s current membership includes just Chile, Singapore and New Zealand, the founding members. These are the same three countries that came together to create the forerunner to the Trans-Pacific Partnership (TPP), now the CPTPP. It came into force on January 7, 2021. South Korea, Canada and China have indicated interest in joining and in May of this year, Canada formally requested to become a DEPA Party, following public consultations in the spring of 2021. There were calls from think-tanks for Canada to take the initiative to join the Agreement, an application now in process . There have also been calls in the United States for the US to join DEPA.

DEPA is not the sole “digital only” trade agreement in existence; Singapore has signed digital agreements with several countries and the US and Japan reached a Digital Trade Agreement (DTA) in 2019. Much of what is in the DEPA, and the US-Japan DTA, is based on the ecommerce and digital trade chapters of the CPTPP but it goes further in some areas, and not as far in others. Notably, the DEPA departs from the standard text of most trade agreements, and from the US-Japan DTA, when it comes to intellectual property, a potential problem for content industries.

There are some important elements to the DEPA, outlined in detail by two researchers at Canada’s Centre for International Governance Innovation (CIGI), Dan Cuiriak and Robert Fay. The agreement is different from most traditional trade agreements in that it does not include a long list of items on which tariffs will be reduced or removed. It is a sectoral agreement including just 16 “modules” (chapters) and 4 annexes. It is designed to be a framework that can be built on and added to.  It covers a range of digital issues, from paperless trading, electronic invoicing, and electronic payments to treatment of digital products (where it entrenches the WTO moratorium on customs duties on electronic transmissions and content transmitted electronically) and provides for the non-discriminatory treatment of digital products, with a specific exception for “broadcasting”. There are also other general exceptions such as national security, public health and safety. It provides for privacy of personal information, cross-border data flows and agreement not to require data localization as a condition of doing business. In addition, the agreement has provisions for cybersecurity cooperation, building consumer trust (controlling unsolicited electronic messages directed at consumers) and protecting consumers from fraudulent activities. It ventures into new ground in terms of outlining principles for cooperation in emerging trends and technologies, identifying fintech, and artificial intelligence (AI) in particular as areas for further work and collaboration. The digital economy’s impact on competition policy and government procurement is also recognized, but in all these emerging areas, there are no binding commitments, simply “best efforts” language to promote cooperation.

Intellectual Property

Where the DEPA falls short, and takes an odd diversion, is in the area of intellectual property. First, unlike most digital trade chapters in broader agreements and the US-Japan sectoral DTA, there is no mention of prohibiting the forced disclosure of source code as a condition for the import, distribution, sale, or use of software, or of products containing software, a key IP issue. In Module 9 (Innovation and the Digital Economy), there a provision, Article 9.3, titled Public Domain;

”1. The Parties recognise the importance of a rich and accessible public domain.

2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.”

While the objectives of this module “affirm the importance of technological innovation, creativity, and the transfer and dissemination of technology, being for the mutual advantage of producers and users of knowledge, as a means to achieve social and economic welfare” (emphasis added), the text of the Agreement focuses on only one element of intellectual property, the existence of the public domain once IP rights are exhausted.

Is the public domain under threat? Not to my knowledge. While the public domain is important, so too is protection for rights-holders, but you would not know it given the language of the DEPA. Access to data for development of AI is a key component of innovation but that doesn’t mean that the rights of those holding the data are to be trampled and ignored. Proprietary data is not “free for the taking” in the name of the development of AI.

Another problem arises from this Public Domain Article. The wording in Article 9.3.2 stresses the importance of publicly accessible databases to assist in identification of subject matter that is in the public domain. However, at least with respect to copyright, to my knowledge no such databases exist, at, or if they exist, they exist in a very incomplete form. A cardinal principle of the Berne Convention is that copyright is established, if all conditions are met, without any registration formalities. For copyright, Article 9.3.2 makes no sense. The intent of the Article seems to be to stand IP protection on its head and focus instead on what is not protected. (However, perhaps the intent is to suggest that only public domain materials should be used to feed the need for “open data” for the purposes of innovation?)

This article is drawn from the original text of the TPP (Article 18.15), which was I suppose inserted to “balance” the rest of the IP chapter, but standing alone as it does in the DEPA, it seems to stick out like a sore thumb.

Platform Responsibility

While protection of intellectual property, or lack of it, is a failing of the DEPA, even the US-Japan DTA gives short shrift to IP concerns, other than inclusion of commitments not to force disclosure of source codes, and exclusion of IP rights from the infamous “interactive computer services” provision, language that is also incorporated into the USMCA with Canada and Mexico. This “interactive computer services” provision, Article 18.2 of the US-Japan DTA, is based on Section 230 of the 1996 US Communications Decency Act, the legislation that has been used by internet platforms to avoid any civil liability for material distributed by them on their platforms, unless they have directly created it. It has been misused by the platforms, enabling them to evade any responsibility for content moderation, notwithstanding clear precedents that exist in the offline world. Silicon Valley has tried (unsuccessfully to this point) to export this legislation through trade agreements signed by the US.

It was a controversial provision when pushed by the US government in the NAFTA renegotiation. Congress finally objected at the last minute but by then, the deal was virtually done with the concrete hardening fast. As a result, the Section 230-like provision stayed in the USMCA (as Article 19.17) although Canada managed to negotiate a qualification to the commitment that an “interactive computer service” not be considered as an “information content provider”. The qualification, contained in a footnote to the Agreement, allows existing Canadian law and precedent to continue to apply and confirms that no change is required to Canadian law. In effect, this avoided the worst-case scenario of having a Section 230-type obligation crammed down Canada’s throat.

The Japanese were equally alert to the dangers of adopting Section 230-like obligations, which would have given platforms in Japan a free ride with respect to responsibility for the material they carry, distribute and monetize. Japan included the same caveat with respect to the application of existing Japanese law (Footnote 15) but went a step further and signed a side letter with the US. This side letter renders the commitment meaningless but such a provision should not have been included in a trade agreement in the first place.

Other topical digital issues in the DEPA relate to online safety and measures to implement cultural policies in the digital environment. The online safety module is weak, noting that Parties recognize the importance of taking a multi-stakeholder approach to addressing online safety and security issues, but requiring no more than efforts (“shall endeavour”) to cooperate to advance collaborative solutions.

Culture and the Arts in the Digital Environment

With respect to cultural carve outs, broadcasting is exempted from the commitments on non-discriminatory treatment of digital products, but no definition of broadcasting is provided. Canada is currently in the process of enacting legislation (Bill C-11, the Online Streaming Act) that will define online streaming services as broadcasting, an action that could be an issue during DEPA accession negotiations. When negotiating trade commitments, Canada also likes to seek a general “cultural exemption” as it did in the original Canada-US FTA, replicated in the NAFTA and its successor, USMCA/CUSMA. (The exemption of cultural industries from the disciplines of the USMCA/CUSMA is, however, subject to the right of the other Parties to take retaliatory measures of equivalent effect). In both its trade agreement with the EU and in the TPP (and its successor, the CPTPP) Canada was unable to achieve an overriding cultural carve out and instead took chapter-by-chapter exceptions. The DEPA contains a general exception for measures affecting culture, subject to the proviso that they do not constitute disguised restrictions on trade; (Article 15.1.4)

subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where like conditions prevail, or a disguised restriction on trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by a Party of measures necessary to protect national treasures or specific sites of historical or archaeological value, or to support creative arts of national value.”(emphasis added)

“Creative arts of national value” are defined as;

the performing arts – including theatre, dance and music – visual arts and craft, literature, film and video, language arts, creative online content, indigenous traditional practice and contemporary cultural expression, and digital interactive media and hybrid art work, including those that use new technologies to transcend discrete art form divisions. The term encompasses those activities involved in the presentation, execution and interpretation of the arts; and the study and technical development of these art forms and activities.” (Footnote 21)

That is a broad exemption that would probably not rule out enactment of legislation like the Online Streaming Act, although whether the measures proposed by the legislation fall under the rubric of “support” (for creative arts) or “discrimination” (between the Parties) would keep trade lawyers busy. A Canadian cultural advocacy group, the Coalition for the Diversity of Cultural Expression (CDCE), submitted a brief to the DEPA consultation that, among other things, criticized the DEPA’s cultural exception clause as inadequate from a Canadian perspective.

Interestingly, having submitted its bid to join the DEPA in May of this year, several months later (July 15, 2022) the Canadian government launched public consultations on a model digital trade agreement. It seems to me it would have been more logical to take this step prior to throwing Canada’s hat into the DEPA ring rather than after, but given that the DEPA is subject to change and can be amended as new Parties join, it will still be useful to obtain input to help develop negotiating objectives.

The CDCE once again provided input, recommending not only that a model digital trade agreement contain a broad cultural exemption clause but also that;

any Canadian model digital trade agreement…not create barriers to the implementation of digital rights management tools, or technological protection measures, that could block the free flow of digital products to protect copyright”,

and that;

Canada should not make commitments under any Canadian model digital trade agreement that could adversely affect the remuneration of copyright holders”.

This is one area where the DEPA falls short and is one of its biggest failings. The drafters of the Agreement seem to have had a deliberate aversion to including any reference to “intellectual property”[i] in the text. In fact, they seem to have gone out of their way to avoid any recognition of the importance of IP–thus, the “standalone” article on the importance of the public domain–reflecting a bias seemingly and incorrectly seeing IP and copyright as antithetical to digital innovation.

Will the US Join DEPA?

It is unlikely that the US will join DEPA as it has already floated ideas for its own Indo-Pacific Digital Agreement as part of its proposed Indo-Pacific Economic Framework (IPEF). Since Canada is not included in the US definition of Indo-Pacific that may explain in part why Canada has stepped up its interest in DEPA. It is likely that a US-led digital initiative will put greater emphasis on IP rights within a digital environment and avoid the public domain focussed language of the DEPA. The Indo-Pacific Digital Agreement (if it ever gets off the ground) and the DEPA could even merge one day. One thing is certain; digital trade is here to stay, and it is important to forge international understandings governing this trade. The DEPA offers one path forward, albeit a path that could do more to respect IP rights. Just the same, it is a modest but useful beginning.

© Hugh Stephens 2022. All Rights Reserved.

[i] The only reference I could find to “intellectual property” in the entire agreement was with respect to Article 3.3.(1) relating to Non-Discriminatory Treatment of Digital Products. Article 3.3 (2) says,
Paragraph 1 shall not apply to the extent of any inconsistency with a Party’s rights and obligations concerning intellectual property contained in another international agreement a Party is party to.”

Will the “Artists’ Resale Right” Come to Canada and the US?

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Well over half the world (more than 90 countries from Algeria to Venezuela, with all of the members of EU, Britain, Australia, Mexico and many African countries included) have an Artists’ Resale Right (ARR) in their copyright law, but not North America north of the Rio Grande—except for California. North of Mexico, the ARR does not exist except for a 1970s era California law that has been ruled unconstitutional because it infringes on the US federal government’s right to regulate copyright. But that may be changing, at least in Canada and possibly in the US.

The Artists Resale Right is a provision whereby visual artists (e.g. painters, sculptors) are paid a “royalty” each time one of their works is resold. Usually, a minimum or floor price is established before the ARR kicks in, and the sale has to be public, i.e. through a dealer or gallery. When authors sell a book, they get ongoing royalties from sales of the book as well as–in some countries (Canada is an example)–an income stream based on the number of times a work is borrowed from a library (the Public Lending Right). They do not, however, get any revenue from resales of their books, once read and thus “used”. But then a used book when resold tends to lose value. Visual art is often different. Like authors, songwriters and musicians also earn royalties, but this occurs when their work is played or performed. A popular work keeps on giving, except for visual artists unless they live in a country with an ARR regime.

Stories abound of artists who sold early works for a pittance, only to see them rise in value as they changed hands, with profits going exclusively to owners or galleries but not the artist. As recounted by the Center for Art Law in the US, in 1973 prominent art collector Robert Scull sold a Robert Rauschenberg artwork, “Thaw”, at auction for $85,000, at almost ninety five times more than his original purchase price. Scull had purchased the work from dealer Leo Castelli about fifteen years earlier for only $900. Rauschenberg confronted Scull, accusing him of unfairly profiting from the artist’s work. That notorious confrontation provided impetus for the introduction of an ARR in the US at the time, but it failed to gain traction in Congress, despite legislation being introduced in the late 1970s and again in the mid-1980s. The opposition of the art dealers lobby was a prime factor in blocking the initiative.

In Canada, as I recounted in an earlier blog post on the Artist Resale Rights issue, the noted Inuit artist Ashevak Kenojuak sold her famous print, Enchanted Owl, for just $24 in 1960. That’s all that she or her estate ever received for the original work, even though original prints have subsequently sold for over $200,000 (although she may have earned royalties on further reproductions of the work in the form of low-cost prints). The institution of an Artist Resale Right would help redress that situation. Just as in the US, the Art Dealers Association of Canada is opposed, arguing that an ARR would create a bureaucratic nightmare, particularly for small galleries. However, I would contend that if it has been possible to establish a royalty system for the playing of licensed music even in small establishments, in malls, elevators and elsewhere, it should not be beyond the wit of mankind to be able to collect royalties on sales of physical art. The music royalty system works because of the existence of copyright collectives whose prime function is to collect royalties and distribute them, taking a percentage for themselves to cover operating expenses. In Canada, the collective CARFAC (Canadian Artists Representation) and its Quebec counterpart RAAV (Regroupement des artistes en arts visuels du Québec) are ready and willing to step in to fill the role of collection and administration.

The dealers have a number of arguments up their sleeves to oppose the institution of an ARR. They argue that an ARR will increase costs to purchasers and thus depress art sales. The resale fee, like the dealer’s commission, is either paid by the seller or shared between the seller and the dealer. In either case, such an arrangement normally results in increased prices that are recovered in the end from the purchaser. The increase in prices resulting from the addition of a five percent royalty, according to this line of argument, will hurt emerging artists selling their works for the first time (because their work will be more difficult to sell) while the ARR will primarily reward established and wealthier artists. Or so the argument goes. This argument that resale right royalties will go mainly to well established artists who are already wealthy was picked up by cultural columnist Kate Taylor in a recent report in the Globe and Mail.

If dealers are so concerned to keep prices low, they could of course reduce their own commissions, but there is no reason for them to do so. In fact, increasing the value of art is what the business is all about. It is hard to take seriously the argument that the addition of a small royalty–some royalties, like those in France are capped, so that works selling for millions of Euros still bring only a relatively modest return to the artist—will undermine the market. In fact, many aficionados and collectors might welcome the knowledge that some small part of the price will actually flow back to the artist or their estate. While it may be true that most art does not have much of a resale value, keeping a low threshold for triggering the royalty will help address this. It has been suggested that the cut off in Canada be $1000, which, admittedly, will bring a return of only $50 to the artist—but it will establish the principle. Setting the threshold higher would eliminate micro-transactions but would then capture a smaller portion of resales. It’s a bit of a balancing act.

Countering the dealers’ economic arguments is the moral argument of fair return to the creator of the work. A resale right provides a form of ongoing return to visual artists (who retain the copyright to their works even if the physical copy is sold) similar in principle to the royalties to authors, songwriters and musicians. And there is also a cultural equity factor to consider. In Canada, much of the sculptural work sold in galleries is of native origin, especially Inuit. A regular revenue stream, even a modest one, would be welcome in northern communities and would provide a way of helping even out the disparities and profit-taking enjoyed by southern collectors and galleries. The same principle applies to African art, which in part explains why a large number of African countries have adopted an ARR. By applying it in their countries, their artists get the reciprocal benefit of collecting resale royalties when their works are sold in galleries in Europe. It helps a bit in levelling the playing field.

The ARR may even feature in the upcoming UK-Canada Trade Agreement, which is being negotiated to replace the trade regime previously existing between Britain and Canada when the UK was part of the EU. British artists are keen to expand the reciprocal nature of their resale regime; Canadian artists would welcome a commitment by Canada to establish an ARR which would give them access to the same privileges in Britain (as well as resale royalties when their works are sold in Canada).

If Canada moves in this direction, and the Trudeau government has given strong signals that it will do so[i] although exactly when is still not clear, then US artists will have one more reason to resurrect the issue in the United States. If Europe can do it, if Britain, Australia and Canada can do it, if over 90 countries can recognize the work of their artists by building in this economic incentive to help support the arts, then why not the United States? US exceptionalism is one thing; fairness to artists is another. If the ARR comes to Canada—and it already exists in Mexico—then the only “Amigo” in North America not playing the game may eventually decide to come on board.

© Hugh Stephens, 2022. All Rights Reserved.

[i] The December 2021 Mandate Letter for the Minister for Innovation, Science and Industry, who holds lead legal responsibility for amending the Copyright Act, included the following instruction; “Work with the Minister of Canadian Heritage to amend the Copyright Act to further protect artists, creators and copyright holders, including to allow resale rights for artists.”

Canada’s Online News Act: Parliamentary Hearings Continue (My Testimony)

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The Standing Committee on Canadian Heritage began hearings late last month to review draft legislation (Bill C-18: The Online News Act) that will follow Australia’s example, with some minor tweaks, to require large digital intermediaries (think Google and Facebook for starters) to negotiate financial compensation with news content providers for the platform’s use of news content to attract users, and thus increase their ad revenues. Among the first witnesses was Prof. Rod Sims, former Chair of the Australian Competition and Consumer Commission (ACCC). Sims was the architect of Australia’s successful News Media Bargaining Code. That Code, when enacted into legislation, allowed collective bargaining on the part of media organizations and required “final offer” arbitration between the parties (Australian news media entities and the designated digital platforms) if deals could not be reached voluntarily. In the end, the arbitration provisions of the Code were not invoked as the platforms instead chose to reach “voluntary” agreements with content providers. In his testimony, Sims stressed the benefit that these arrangements had brought to Australian media, both large players and small outlets, including country weeklies, in terms of additional revenues that have translated into increased employment opportunities for journalists.

While Google and Facebook eventually acceded to the Australian legislation after initially threatening to shut down Search in Australia (Google) or to remove all Australian news content from its platform (Facebook)–a clumsy move that seriously backfired, as I wrote about here—they continue to fight the Canadian legislation by deploying many of the same arguments as were trotted out in Australia. As part of this campaign, an influential tech industry association in Washington, DC, one in which both Google and Facebook play lead roles (the Communications & Computer Industry Association, or CCIA), recently published a paper claiming that C-18 would violate Canada’s trade agreement obligations under the USMCA/CUSMA and the Berne Convention. (See my post of last week challenging these arguments). Others have taken aim at the fact that C-18 has a broad definition of what constitutes “making available” when it comes to news content. “Making available” is the action of the platforms that becomes subject to negotiation with the news media outlets if they facilitate access to content from Canadian news providers. While hyperlinks are not mentioned in the legislation, neither are they excluded and it is apparent that links, headlines and snippets will be covered. In his testimony to the Committee, Michael Geist of the University of Ottawa, a notable C-18 opponent, claimed that inclusion of linking would run counter to Supreme Court jurisprudence on fair dealing, in addition to myriad other criticisms including echoing the CCIA’s questionable interpretation of Canada’s trade obligations as well as questioning the constitutionality of the legislation. These arguments are getting little traction.

Most of the discussion has been about the definition of eligible news businesses and whether really small media outlets can qualify to take part in collective bargaining with the platforms. Along with several other witnesses, I was invited to appear before the Committee on September 27. I focussed my comments on three areas where the legislation has been attacked by its critics, arguing that these criticisms are inaccurate and off base.

A copy of my opening statement to the Committee (with minor additions—like others, I had only five minutes) follows:

”Good Morning. I would like to thank the Committee for giving me the opportunity to present my views on this important issue. I am speaking today in an individual capacity.

In my comments I will be speaking in support of this Bill. In doing so, I would like to address three criticisms that have been brought against it.

One is that the measures proposed by C-18 to stem the decline in journalism are taking aim at the wrong target, the large digital intermediaries, on the grounds that they do not benefit financially from including news content on their platforms, and even if they do, they are already voluntarily providing some financial support to some media.

The second is that the ambit of the Bill is too broad because its definition of “making available” includes some content that would normally be considered fair dealing under the Copyright Act, such as links, headlines and snippets.

The third is that, if implemented in its current form, C-18 would violate Canada’s international trade obligations under the Berne Convention and the Canada-US-Mexico Agreement (CUSMA). I believe all of these criticisms are inaccurate.

I write a weekly blog on international copyright issues and have noted that a number of governments, in the face of fierce opposition from the platforms, have had to resort to legislation in order to level the playing field between news media publishers and the large digital intermediaries.

In 2014 both Germany and Spain passed laws requiring Google to pay news producers for use of their content. Google’s response in Spain was simply to close down Google News, its news aggregation platform, and in Germany to delist any publishers who refused to give Google access to their content without payment. The EU tackled this issue through creation of a limited 2 year press publishers right. Google and Facebook have since come to the table and struck deals with publishers for access to news. France has been particularly successful in this regard.

We know that when Australia decided to “bell this cat”, Google and Facebook mounted a vigorous lobbying campaign and threatened to pull out of Australia. Google also tried unsuccessfully to get the US government to take up its case. In the face of the legislation, however, they backed down and managed to conclude revenue sharing agreements with most Australian media outlets.

In the United States, Congress is currently debating the bipartisan Journalism Competition and Preservation Act (JCPA) which seeks to do much of what C-18 is aiming to accomplish.

I mention these examples to underline that C-18’s objective of helping to preserve a viable professional journalism sector by requiring negotiations for compensation for use of news content by the largest digital intermediaries is not unique; in fact, it is very much in the mainstream of activity taking place in a number of western democracies.

Another criticism of C-18 is that its definition of “making available” is too broad because it includes some actions, such as linking to content, or featuring headlines or snippets, that are normally considered fair dealing under the Copyright Act. There are well established legal precedents in Canada and elsewhere that under most circumstances (but not all) hyperlinking to content is not a violation of copyright. C-18 address this in Section 24, “For greater certainty, limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process”. (The preceding sentence was not included in my remarks owing to time limitations). It has also been argued that posting hyperlinks provides a benefit to news outlets. Indeed, news outlets do derive a certain benefit from the referral–just as the platforms derive benefit from using news content to attract more users, and thus sell more ads. Under C-18, the balance of respective benefit will be worked out in negotiations between the parties.

While posting hyperlinks, headlines or snippets does not normally constitute a copyright infringement, by the same token C-18 does not deny digital platforms their fair dealing rights. Put another way, their rights under the Copyright Act are not diminished or changed by C-18. However, it will be a violation of the Act if they do not bargain in good faith with respect to making content available. Use of fair dealing exceptions is not a licence to ignore other laws, whether it be the Online News Act, defamation laws or any other legislation. As for the argument that this will interfere with the posting of links by users, such as members of this Committee, that is false. The requirement to bargain over the use of links is restricted in the Bill solely to digital news intermediaries, with a very precise definition.

Likewise, the criticisms that C-18 will violate Canada’s international trade obligations, including the Berne Convention and CUSMA, leading to potential trade retaliation from the United States, do not stand up to scrutiny.

The legislation is drafted in such a way that it does not target US companies, but rather companies with certain market characteristics of size and dominance. Likewise, it does not seek to protect Canadian digital intermediaries that compete directly with Google or Facebook. In addition, the section on non-discrimination does not impose any “must carry” requirements that could violate CUSMA. In the case of Berne, which contains a “right to quotation” under Section 10(1);

 “It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries”,

there is nothing in C-18 that derogates from the quotation right. However, use of quotations from news content providers could be a factor in the bargaining process. (The wording of Section 10(1) was not included in my remarks).

Quite apart from not having a strong legal argument to challenge the Bill under either CUSMA or Berne, it is highly unlikely that any government, including the US government, would take up a trade challenge either under CUSMA or the WTO. A key factor is the reality that even within the US high tech sector, not to mention other corporate sectors in the United States, there is no unanimity of views on legislation like C-18. In the case of Australia, when Google threatened to pull its search engine from the country, Microsoft stepped in offering to fill the gap, stating at the same time that it was ready to comply with the new Australian code. In the face of such divided corporate interests and views, it is most unlikely that the US government would be interested in pursuing a controversial trade challenge, one that would in any case be on shaky grounds.

(The reasons why the US government would be most unlikely to take up a trade challenge were not included in my introductory remarks owing to time limitations)

I will end my comments here and look forward to any questions. Thank you.”

There will likely be further hearings later this month to hear from Google and Meta.

© Hugh Stephens, 2022. All Rights Reserved.

Bill C-18, the Online News Act: Does it Violate Canada’s Trade Agreement Obligations?

Source: http://www.shutterstock.com

As Bill C-18 continues its deliberate journey down the Canadian Parliamentary legislative track on its way toward enactment, the Bill’s prime targets (Alphabet, in the form of Google Search and Meta in the form of Facebook) continue to deploy the full force of their lobbying efforts to derail the legislation. Their most recent effort is a White Paper released earlier this month by Washington DC-based tech industry lobby group, the Computer & Communications Industry Association (CCIA). In a valiant but scarcely credible effort the CCIA attempts to argue that if enacted, C-18 would violate Canada’s international trade obligations, specifically commitments it made in the recently updated NAFTA accord (USCMA/CUSMA) and those required by virtue of its membership in the international copyright treaty, the Berne Convention.

In the process, the paper rolls out a number of other arguments against the legislation, such as claiming that it will benefit only a “select few large and powerful media companies” and will “do little or nothing to support sustainable or quality journalism in Canada”, while claiming that it will promote disinformation and content from untrusted third parties. The paper’s authors even claim that any payment from the digital intermediaries, who have scooped up the lion’s share of ad revenues (largely through leveraging content produced by others, usually without any payment), will “jeopardize the long-term viability of the (media) sector”. How will this happen? I guess it is supposed to make them fat and lazy. I will give the authors an “A” for creativity in terms of the range of objections they manage to roll out, but an “F” for making a convincing argument.

What readers should know is that the legislation is currently targeted primarily at two major US-based internet platforms, “digital news intermediaries” in the words of the legislation, just as Australia’s recent legislation to enact a News Media Bargaining Code aimed at the same two companies (Google and Facebook). However, they are not named in the Bill which, if passed, will apply to a;

“…digital news intermediary if, having regard to the following factors, there is a significant bargaining power imbalance between its operator and news businesses: (a) the size of the intermediary or the operator; (b) whether the market for the intermediary gives the operator a strategic advantage over news businesses; and (c) whether the intermediary occupies a prominent market position.”

Intermediaries have to self-designate, and the definition is generic, but it is clear who we are talking about. The CCIA paper goes to great lengths to quote Canadian politicians to show that Google and Facebook are the main targets although there are also references to “GAFAM”. (Google, Apple, Facebook, Amazon, Microsoft). If the shoe fits, wear it. No one has ever denied where the problem lies. And yes, they happen to be all US companies—for the moment.

The CCIA paper argues that if Alphabet and Meta are the only companies captured by the legislation, this amounts to a denial of national treatment (treating entities of your trading partners in an equivalent manner to domestic entities) and would be a USMCA/CUSMA treaty violation. But is this true? Hardly. Unless a measure is proven to be a disguised barrier to trade, as long as it applies to all companies, domestic or foreign, it will be difficult to substantiate a national treatment violation even if at the moment it affects only certain companies because of their size, market dominance or some other reason. Just because the affected companies happen to be headquartered in the US, it does not follow that this is an action targeted exclusively at US or foreign companies. For example, given the growing use of its platform for news distribution, it is possible that a platform like TikTok could fall within the ambit of the legislation.

C-18 is no more a violation of the national treatment principle than the EU’s Digital Markets Act (DMA), which targets the anti-competitive behaviour of “internet gatekeepers”, who happen to be prominently represented among the GAFAM US-based companies. The US government has not objected to the DMA on national treatment grounds (although Silicon Valley certainly has). Such criticisms as there are accuse the EU of targeting US “gatekeeper” companies in order to protect competing European companies. In the case of Canada, there is no suggestion that any provision of C-18 is designed to offer trade protection to Canadian companies competing with the “digital news intermediaries”. In short, charges that C-18 violates Canada’s national treatment obligations are a red herring.

Just as the Bill contains a definition for digital intermediaries that are subject to the legislation, so too it defines an “eligible news business”. An eligible business, one that can enter bargaining with the platforms for compensation for use of Canadian news content, is any entity producing news content that receives the journalism tax credit or which has a minimum of two journalists in Canada and operates and edits material in Canada. That hardly limits the benefit to “large and powerful media companies”. The CCIA paper goes on to argue that the definition of an eligible news business will make it difficult for Canada to avoid a charge of unjustified discrimination against US media organizations. This argument must truly be galling to US news producers, none of whom belong to the CCIA and most of whom are engaged in trying to bring about the same legislation in the US as Canada is proposing.

In claiming that the legislation is a violation of national treatment, the CCIA makes the laughable comparison with the maple syrup industry, where Canada apparently has a 66% percent market share in the US. (Canada exports 85% of global production). Apart from the fact that there are over 8000 businesses producing maple syrup in Canada spread over 5 provinces (although the large majority are in Quebec, where the climate is most conducive), it is hard to equate the $300 million in Canadian maple syrup exports to the US to the role that Google and Facebook play in the Canadian digital ecosystem. There is no one, giant maple producer that controls 95% of the market in the way that Google dominates online search, or which controls 80% of digital advertising revenues as Google and Facebook do. But this is not the only flaw in reasoning in the paper.

It claims, incorrectly, that C-18 “in essence” imposes a must-carry obligation on US digital news intermediaries with respect to Canadian news content because of the non-discrimination provisions of the legislation. This is way off base and just plain wrong. While it is likely true that to operate successfully in Canada, Google and Facebook need to reference and link to Canadian news media content in order to appeal to Canadian consumers, they are not obliged to do so by the legislation. However, if the platforms opt to “make available” Canadian news content, then they will be subject to the Act and be required to enter compulsory bargaining with news providers, subject to final, binding arbitration if negotiations fail, as was the case in Australia. (If they voluntary reach agreement with news providers, the compulsory bargaining and arbitration provisions will not apply, again, as per the Australian example).

C-18 (Section 51) imposes a non-discrimination requirement on any internet intermediary that makes Canadian news content available in order to ensure that platforms cannot demote or promote certain content over others for their favoured or disfavoured partners, particularly during the negotiation phase. But Section 51 does not require them to make Canadian content available, as the CCIA paper claims, and the law does not prescribe any form of mandatory carriage. The CCIA paper also states incorrectly that if a digital intermediary decided not to make available any Canadian news content, this would prevent it from displaying non-Canadian sources such as the New York Times or the South China Morning Post. This is a fanciful re-interpretation of the Bill. To reiterate, the non-discrimination provision does not require that Canadian news content be made available; however, if it made available then it must be done in a non-discriminatory manner. Distribution of non-Canadian content is not subject to this provision. The wording is Section 51 is clear. The non-discriminatory provisions apply only to “news content that is produced primarily for the Canadian news marketplace by a news outlet operated by an eligible news business”. An “eligible news business” must be based in Canada.

While there is no legal requirement to carry (make available) Canadian news content, nor is there any provision that prevents the distribution of non-Canadian news content in Canada, the market reality is that if Google and Facebook are to be successful in the Canadian market of 38 million people, they will have to make Canadian news content available to their users, as they have been doing. They produce not one column inch of content yet benefit from the readership that this content attracts through domination of digital ad markets. It is this anomaly that the legislation is designed to correct.

Because the CCIA paper has chosen to mischaracterize the bill, its arguments that C-18 violates Canada’s trade obligations under the USMCA/CUSMA and Berne do not stand up to scrutiny. First, as noted above, simply because a measure at the present time may capture a couple of US companies even though broadly targeted, this does not mean the action is a violation of national treatment. The argument that the non-discrimination provisions are, in effect, a “must-carry” requirements for Canadian news content are also inaccurate, negating the argument that this is a violation of the investment chapter of the USMCA that prohibits the imposition of “performance requirements” on investments from a NAFTA country. Even if the above arguments were valid, which they are not, Canada could still invoke discriminatory measures under the cultural exception provision of the CUSMA, Article 32.6, because publication of newspapers, periodicals and magazines is defined as a cultural industry. The cultural exemption clause allows Canada to take measures to protect or promote a cultural industry even if to do so would infringe a USMCA/CUSMA obligation. However, invoking 32.6 would invite retaliation of equivalent commercial effect, and there is no need to do so because C-18 is not in violation of the USMCA.

Another argument trotted out by the CCIA is that C-18 will lead to a breach of Canada’s obligations under the Berne Convention (incorporated into the WTO) because, under Berne, there is a “right to quotation”. The paper also claims that the bill undermines longstanding legal principles related to limitations and exceptions to copyright protection. In Canada, these largely fall under the fair dealing provisions of the Copyright Act; in the US they fall under the somewhat broader “fair use” provisions. In fact, C-18 makes no changes to the Copyright Act, and designated internet intermediaries could still exercise a right to quotation under fair dealing if, for example, they produced content that required use of quotations. Fair dealing and other user rights under the Act are unaffected. However, fair dealing cannot be invoked by the designated platforms to avoid their obligation to enter bargaining with news providers, which is a measure designed to redress a market imbalance rather than adjudicate copyright issues. Put another way, the exercise of fair dealing under the Copyright Act does not provide immunity from the need to comply with other legislation, whether it be the Online News Act or some other legal requirement.

The relevant part of the draft legislation dealing with this issue (Section 24) states that “For greater certainty, limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process.” As I recently discussed (here and here), while the term “making available” covers linking, which is generally not a violation of copyright (except in certain, well-defined circumstances) and is thus a permitted activity under the Copyright Act, it is also subject to the bargaining framework when employed by designated digital intermediaries—and only the designated digital intermediaries, not other users.

While all these nuances could, potentially, be argued before a WTO or NAFTA panel (except that the US has frozen the WTO process by blocking appointments to the WTO’s appellate body), this raises the more fundamental question as to whether the US Government would be willing to take up cudgels on behalf of Google and Facebook. (A company cannot bring a trade dispute case itself; it has to be done by a government). Neither corporation is exactly in good odour in Washington these days and some of the actions the CCIA objects to are in fact already underway in the US. While the CCIA paper argues against C-18 because it will allow the Canadian media to bargain collectively, (becoming a “cartel” in the CCIA’s words), legislation that would provide exactly the same exemption from anti-trust provisions is currently before the US Congress. (The Journalism Competition Preservation Act-JCPA). It is also worth recalling that the US Government represents US interests broadly. Among those interests are the US journalism industry (which would like to see legislation similar to C-18 in the US) and other companies within the tech sector that are competitors of Google and Facebook. Let’s recall that when Google threatened to pull out of Australia, removing its search function because of impending Australian legislation very similar to C-18, Microsoft stepped in and offered to fill the void, at the same time indicating it would be happy to comply with the Australian law. (Google’s Tussle Over Payment for News Content in Australia: Microsoft Scrambles the Cards–With Positive Implications for Canada and Others) When there are disparate US interests and different voices–equally influential–to consider, don’t expect the US Government to rush to become advocates for Google and Facebook. While the CCIA took up their case, I note that both companies are members of the organization. Microsoft does not appear to be a member.

So, what then are we to make of all this? Simply put, the CCIA paper is a valiant but unconvincing lobbying effort. It tries to invoke scare tactics and threaten US retribution under the USMCA/CUSMA, but it’s a paper tiger. Its arguments are unconvincing and tendentious, and the likelihood of the US Government actually bringing a CUSMA case if C-18 becomes law are somewhere between very slight to zero. And if they did, the case would almost certainly fail.

Australia and France have already brought the big internet platforms to heel when it comes to working out equitable income sharing arrangements with news media. Canada will undoubtedly succeed in doing the same. The US will likely be next in line even though the CCIA will deploy its considerable lobbying heft to oppose action at home as it is doing in Canada.

© Hugh Stephens 2022. All Rights Reserved.

Stopping the Trade in Fake Indigenous Art: Following in the Footsteps of Lucinda Turner

Artist: Ed Simeon (1976); Credit: Simon Fraser University

The lamented passing of artist and activist Lucinda Turner in Vancouver in early July reminded many of the struggle she engaged in to protect Pacific Northwest Coast Indigenous artforms from counterfeiting and copyright infringement. Turner, a non-Indigenous artist who worked for many years with Nisga’a master sculptor and carver Norman Tait, took up the cause of fighting to protect Indigenous, especially Pacific Northwest, art from blatant copying, plagiarism, counterfeiting and passing off after Tait’s death in 2016. Many of the unauthorized reproductions are produced in Asia, with large numbers of the carvings coming from Indonesia, being executed in teak or other wood not native to the Northwest Coast. Others are copies made closer to home, usually by non-native artists.

To combat the trade in fakes, Turner started the Facebook group Fraudulent Native Art Exposed (FNAE), in which she catalogued literally thousands of knock offs of native art. The site includes a registry of authentic native artists as well as a model DMCA takedown letter. (For those not familiar, the DMCA is US legislation that allows those whose copyright has been infringed to submit letters to internet platforms in the US requiring them to remove infringing materials from their site). Today, the group continues as a discussion forum. The topics are interesting, ranging from outing of retail outlets selling fake Northwest Coast art to discussions around cultural appropriation and who can claim native ancestry.

In 2019 Turner stepped up her campaign, drafting an open letter to the Canadian government. In it she called for introduction of legislation and policies to uphold and protect Indigenous intellectual property and copyright through stricter laws and enforcement. Specifically she put forth five recommendations;

  1. Clearer identification to make it easier for a buyer to determine if a work is authentic or not. Institute for Northwest Coast Indigenous artists a system similar to the Canadian “Igloo Tag Trademark” or Alaskan “Silver Hand” that protects Inuit and Alaska Native artists from fraud, cultural appropriation, and theft, by distinguishing authentic Inuit and Alaska Native works from those using Arctic imagery;
  • The introduction of an Indigenous Artists Registry using blockchain technology to enable a direct link to an artist’s portfolio and biography, providing artists with a place to document designs, control ownership, establish provenance, and track works as they are sold;
  • Criminalize and enforce laws against fraudulent acts of purporting to donate proceeds or parts of proceeds to Indigenous communities or associations (fundraising for Indigenous causes using Indigenous images without authorization);
  • Encourage the sale of Indigenous art by eliminating Federal and Provincial sales taxes on these items while retaining (or even increasing) taxes on “Native-Inspired” pieces;
  • Distribution of information pamphlets on where and how to buy authentic Indigenous art in places such as high-traffic tourist areas to help teach consumers how to identify authentic art, and what questions to ask such as: where the product was created, the artist’s name and First Nation affiliation, and whether or not the artist receives royalties from the sale.

These recommendations are a combination of legal action and raising consumer awareness through information and marketing. As in many things, price will usually be the first indicator of whether or not an article is genuine but is not always determinative, especially when well-executed knock-offs are marketed at similar prices to authentic works.

Despite Turner’s call to action, and despite recognition by two Parliamentary committees in 2019 (the Shifting Paradigms report of the Heritage Committee and the INDU Committee Report from the Committee on Industry, Science and Technology) of the need to take special measures to protect Indigenous art, almost nothing has been done to date. This is partly due to delays in revising the Copyright Act (required every five years, with the last revision being in 2012) because of the interruption of two elections (in 2019 and 2021), as well as the government’s focus on other priorities including combatting COVID.

The Minister for Canadian Heritage, the head of one of two government departments responsible for copyright, has been preoccupied with other legislation, such as the Online Streaming Act, Online News Act and legislation dealing with online harms. The lead department responsible, Innovation, Science and Economic Development, has had many other issues to deal with and copyright has been put on the back burner. That may be changing now the Trudeau government has secured a likely mandate to govern until 2025 through a confidence and supply agreement with the opposition New Democratic Party. There is now sufficient time to bring forth proposed changes, conduct public consultation and hopefully get changes through Parliament before another election intervenes and cuts short the legislative process.

With copyright review getting underway within the bureaucracy, calls for more action to stop the trade in fake Indigenous art are increasing. Among those leading the charge is Senator Patricia Bovey, independent Senator from Manitoba and the first and only art historian to sit in the Senate. She served as Director of the Winnipeg Art Gallery (1999-2004) and the Art Gallery of Greater Victoria (1980-1999), has been a professor of Art History, President of the Canadian Art Museum Directors Organization for three years and served on the Board of the National Gallery of Canada. It’s fair to say she knows her stuff, and that she is concerned. While an independent Senator can only do so much in terms of bringing forth legislation, she can encourage, prod and circulate ideas. Among these is the creation of a mechanism or fund to track down companies fabricating Indigenous works or failing to pay royalties. Another would be to strengthen Canada’s “soft border” against trade in fakes. Some of these measures could be addressed by the Copyright Act; others will require legislation in other areas.

As I have written elsewhere, “Can Copyright Law Protect Indigenous Culture? If Not, What is the Answer?”, copyright is not always a perfect fit when it comes to protecting Indigenous Cultural Expression (ICE) which may be more community than individually based and often relies more on stewardship than ownership. But there are still contemporary Indigenous artists who are facing direct consequences now from the growing trade in fakes, facilitated by sales through the internet. Action is needed. A key element is to be able to easily distinguish between real and fake Indigenous art. Lucinda Turner’s idea of making the genuine article free of sales tax would be one transparent way to indicate the difference, allowing law enforcement to take action against fraudulent efforts to pass off non-Indigenous works as genuine as doing so would be a violation of the tax code. Another suggestion is to bring in Canadian legislation that would mirror the US Indian Arts and Crafts Act of 1990 that prohibits the sale, or offer for sale, of any product that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian “tribe”. There are heavy penalties for violation of the law. In 2018 an owner of several Albuquerque, NM, jewellery stores was imprisoned and required to pay over $9000 in restitution for passing off Filipino-made jewellery as authentic Native American art.

However, the legislation is not necessarily a silver bullet. Apart from questions as to who qualifies as “Indian” under the Act (in the case of the US law it is a member of a federally or state recognized Indian tribe or an individual certified as an Indian artisan by a tribe), the law does not deal with “lookalike” art. As long as there is no false claim that the work is an Indian product, the law does not apply. In other words, non-Indian works taking inspiration from Indian designs, but not claiming to be Indian-made, are not targeted by the law. To close this loophole would be difficult because many non-Indigenous artists have drawn inspiration from native designs, eg. Hopi and Navaho geometric patterns. The most effective means may be to ask artists to be respectful of the cultural significance of works they are inspired by, but that still won’t stop mass marketing of cheap look-alikes for tourist consumption, such as totem poles, masks, jewellery, Inuit sculptures and so on.

If certain art forms are restricted to Indigenous practitioners in Canada, the question of who might qualify to produce them could be tricky since the term “Indigenous” includes members of First Nations reserves with status under the Indian Act, non-status people of Indigenous descent, Inuit and Metis, although “qualification” could no doubt be solved by some form of registry. There is also the question of regional origin within the Indigenous community. For example, should an Indigenous person from, say, the northern prairies be able to claim Indigenous status as a producer of Pacific Northwest Coast art?

But the most difficult question is how to handle clones of Indigenous art, such as elaborately and cheaply carved “copies” from places like Indonesia (where there are also master carvers very good at copying the work of others, in some cases commissioned by businesses in North America), and where there is technically no claim that the work is of Indigenous origin. While Indigenous artists in Canada would like to see those copies stopped at the border (training of border guards is another issue), as long as those “copies” are not exact replicas and not marketed as originals, it will be difficult to stop such trade. If fake art is being imported and passed off as the original, whether it is of Indigenous design or not, it should be stopped. However, if the works simply take inspiration from Indigenous, or non-Indigenous designs, as much as I sympathize with the artists of the original works, it is hard to design a law that will target the problem without causing some kind of collateral damage to trade. This is where a mark of authentication could come in handy. False labelling would be grounds for seizure of goods. Also, the threat of heavy fines and seizure of fake goods might provide some deterrence and ensure that imported artwork is clearly identified as such.

There is definitely a problem, although the solutions are not simple. While stopping or discouraging the trade in fakes is important, equally important is letting consumers know what is real and what is not. Price does not always provide the necessary distinction. The creation of an Indigenous Art Registry (that work has already begun) and the establishment of a mark of authenticity or a trademark would help consumers identify the provenance and bona fides of a product they want to buy. If I want to buy the real thing, I don’t mind paying a fair price for the genuine article but I really don’t want to pay a similar price for a knock off made elsewhere. That undermines the entire market.

It looks as if the work of Lucinda Turner will be carried forward by others, including Patricia Bovey. Some changes will likely be addressed through Copyright Act revisions. Others may come about as part of the ongoing Reconciliation efforts with Indigenous communities. Still others may come about as a result of tightening the border against the trade in fakes of all kinds. For example, the new NAFTA trade agreement (aka USMCA/CUSMA) requires that customs officials in Canada, Mexico and the US have “ex officio” powers to stop suspected counterfeit goods. “Ex-officio” means that customs officials can act on their own authority if they suspect that a shipment contains fakes, rather than having to wait for a rights-holder to bring a case. In other words, they can pro-actively interdict traffic in fakes rather than simply being reactive.

This is a complex file that involves Indigenous rights and culture, international trade, copyright and trademark, and consumer protection. This suggests that a coordinated approach across government is needed. Lucinda Turner was a leader in taking up this challenge. Others are following her example. I wish them success.

© Hugh Stephens, 2022. All Rights Reserved.

Copyright Protection for Transitory or Ephemeral Works: Going Beyond the Photographic Record

Last month, I discussed the ephemeral art of US sand sculptor Jim Denevan, noting that the simplest way for Denevan to protect his monumental sand designs (if he wished to), was by photographing them. That is what Denevan has done on occasion, through his son, drone photographer Brighton Denevan, who took the stunning photos of the work Denevan père executed at Chesterman Beach in Tofino, BC, earlier this year. That work was obliterated after 9 days when a king tide came in. But what if Denevan hadn’t photographed the work? Could it still have been protected by copyright given that it was “transitory” and not “fixed”?

Unlike in the US, UK copyright law does not explicitly require fixation or permanence for artistic works (as opposed to literary, dramatic, or musical works, where it is required). A recent case in the UK (Islestarr Holdings Ltd v Aldi Stores Ltd) illustrates the tricky role of fixation when deciding infringement. The case involved a design embossed into cosmetic make-up powder, which had been copied by the alleged infringer. Although the embossed powder compact design disappeared when used (i.e. it was transitory), the court nonetheless ruled that the product was sufficiently fixed even if not “permanent” because the embossed powder was based on a fixed design. As noted in the Kluwer Copyright Blog;

“The decision shows that with artistic copyright (in the UK) the emphasis is on the content conveyed by the work as opposed to the medium on which it is fixed.  Provided the design of the artistic work is recorded in some form, the physical manifestation of the design will, in principle, be entitled to artistic copyright regardless of its permanence.  In the Islestarr decision it was relatively straightforward to establish fixation from earlier design drawings…”,

Jim Denevan’s sand installation took place in Canada which also does not have an explicit requirement for fixation in its copyright law, (other than for content transmitted by telecommunications), unlike the US. However, according to Canadian case law, to be protected a work must be expressed to some extent in some material form, capable of identification and having a more or less permanent endurance. Perhaps the designs Denevan used to create his work were in a tangible form, allowing him to assert copyright based on the designs before they were carved into the sands of Chesterman Beach. But perhaps he simply had the design in his head and executed it without preparing a physical copy. In that case, it would seem that copyright would have to depend on an image (such as a photograph) of the non-permanent object if the work is to be protected.

The question of whether a design qualifies for protection regardless of the permanence of the expression of the design, as in the Islestarr case, is interesting to explore. In Denevan’s view, his instructions on how to assemble a work (such as his “Angle of Repose” sculpture at DesertX 2022), are protectable by copyright. In my discussion with him, he pointed out the case of the American conceptual artist Sol LeWitt. LeWitt was known for myriad variations in drawing lines onto walls. His creation was the set of instructions on how to execute the lines, although each artist—usually his assistants–following these instructions would produce something slightly different each time. In LeWitt’s thinking, the instructions were the copyrightable form; the actual physical manifestation was secondary.

I remember visiting the Art Gallery of Ontario a few years ago when an installation by the Chinese artist Ai Weiwei, titled 90 Tons of Steel, was being set up. The work itself was a collection of straightened rebar taken from schools in Sichuan Province that had been destroyed by the 2008 earthquake. Ai had extracted the steel rods, straightened them, and then assembled them into a ripple pattern resembling a seismic wave. The work was a criticism of the Chinese government and local officials for allowing shoddy construction in schools, resulting in the deaths of many students. As the curator was assembling the work, which as I recall had just arrived from New York, I asked him how he could ensure the design was faithful to Ai’s conception. (Ai was not in Toronto; at the time he was under house arrest in China).

The curator said he was following Ai’s instructions but conceded that the layout in Toronto would inevitably differ in some respects—since the bars were not interlocked in any way– from the display in Indianapolis, or Boston, or wherever the exhibition was going next. Yet no-one would dispute that the work was Ai’s and that it was protected by copyright.  The work was clearly transitory or ephemeral since after its run in Toronto, it would be packed up and shipped to another art museum and be laid out again in a different setting. In effect it was Ai’s design as translated through his instructions that was the heart of the work, and which is presumably protected by copyright, rather than the physical expression of the work wherever it may appear. In similar fashion, recorded verbal instructions for assembly of an artwork could be argued to be protected by copyright even though the resulting work might not be fixed.

While it may seem a stretch to argue that a sand sculpture could be copyrighted if it was the expression of an original, recorded design, this happens in other art forms where an ephemeral or transitory expression can be protected by copyright if the instructions are fixed. Choreography is a good example. There is no question that dance choreography is protectable; there are numerous examples. The form of fixation can be a video recording or photograph, but it can also be through dance notation or textual descriptions. The actual performance, which could itself be protectable through the performers’ rights, is unlikely to be an exact replica of the dance each time it is performed, giving it a transitory nature. Yet it is protectable under copyright, as explained by this article in Dance Magazine.

So, while a photograph by the author (or, in the US, on behalf of the author as a work for hire) is a good way to ensure that a transitory work can be protected by copyright, it is not the only way to accomplish this.

© Hugh Stephens, 2022. All Rights Reserved.

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