Tag: canada

How Did Content Discoverability Become a Third-Rail Issue for Canada-US Trade Talks?

A person holding two circular objects resembling binoculars, with red and white Canadian flags displayed on each lens.
Image: Shutterstock.com

US Trade Representative Jamieson Greer declared in his interview with the CBC on August 26 that the issue of discoverability of Canadian content, especially French language content, was not a dealbreaker. It had only been “highlighted” by the US as an issue. “There is no way we would let a good deal go by for something like this”, he is reported to have said. Canada-US Trade Minister Dominic Leblanc immediately jumped on Greer’s comments saying in a social media post that he welcomed the fact the US is withdrawing its positions on the French language and Canadian culture. On this basis, said Leblanc, there might still be the possibility of reaching a trade agreement after all. Talk about putting words into someone else’s mouth! Greer said nothing of the sort, although if both sides want to get back to the table at the earliest opportunity (and it is not clear that they do), then this would help provide a pretext.

While Greer said the US only “highlighted” the discoverability issue, this was a clear admission it had been put forward as an irritant the US wants resolved. You don’t raise an issue at the negotiating table only to say it wasn’t really important after all. Perhaps it was put there to be traded off for something else, or to keep Canadian negotiators on the defensive? Perhaps Greer is indicating that USTR only kept discoverability on the list to mollify the US streaming industry? But whatever the motivation, apparently this issue kept showing up in the list of US demands right up to the time the Canadian negotiators walked away.  It seems that the streamers, having swallowed the Carney government’s announced intention to reverse the CRTC’s decision requiring them to “contribute” 15 percent of annual revenues to Canadian production, smacked their lips, burped and said “More”. This may have been a strategic mistake as it allowed the Carney government to wrap itself in the flag and “stand up” for Canadian culture.

If discoverability wasn’t an issue, why put it forward? By the same logic, if French language labelling (Quebec’s Bill 96) wasn’t an issue, why was it up for negotiation? While French-language labelling requirements weren’t included in this year’s list of trade barriers published annually by USTR, Bill 96 was included in 2025. This year, Quebec Bill 109 which addresses the French language discoverability requirements was explicitly listed under “Service Barriers” in the Canada section of the National Trade Estimates. (As an aside, Bill 109 may intrude on the federal broadcasting power, well established in law for decades, but that is another issue for another day). Either these issues were on the list of “trade irritants” the US wanted resolved, or they were not. It is pretty clear that they were. And it is also clear that USTR has not “withdrawn its position”.

Putting discoverability of French language and other Canadian content on the list of US negotiating objectives makes this a third rail issue because of how it touches on sovereignty and the right to cultural expression. The Online Streaming Act, under which both discoverability and contributions to Canadian content fall, is consistently listed by the US as a trade issue. Until now, the mandatory payments (aka “contributions”) were the key sticking point but, as Michael Geist has commented, recent developments seem to have shifted the focus of US discontent away from payment for production of Canadian content to the promotion of such content. I am not convinced the payment issue has entirely gone away, however. The government has yet to issue a directive to the CRTC instructing the Commission how to modify its implementation of the Online Streaming Act, other than stating in press reports and a court filing that it will not be pursuing statutory contributions of 15%, or the earlier announced level of 5%, based on annual revenues. Culture and Identity Minister Miller has said publicly that the streamers will still be expected to “reinvest” in the production of Canadian content. Meanwhile the Canadian cultural community is urging the government to rollback its previously announced reversal of the CRTC mandated contributions. Canada may still hold some cards.

With regard to discoverability, what is its purpose, how will it work, and why is it so important both to Canada and to the US industry? Discoverability relates to promoting an awareness of certain types of content, in this case Canadian content or French language content, so that consumers can decide if they want to give certain content a try. The CRTC definition is as follows;

“…content and services are discoverable if they are made available and visible to audiences, including when an audience member is not actively seeking such content and services.”

Discoverability applies to both audio and video streaming service, for example, Spotify and Netflix. The contribution framework announced by the CRTC, now suspended, applied the initial 5% “down payment” contributions to both music and video streamers although the second tranche that raised the contribution to 15% applied only to the video streamers. Perhaps the CRTC would have dropped the second shoe on the audio streamers too, but they didn’t get around to it before the government intervened to roll back the mandated contributions on the AV streaming industry.

It is true that video streamers like Netflix already have a button to access Canadian content, so if a consumer really wants to watch a Canadian show, they can go there first. But most consumers, including me, don’t want to watch shows just because they are in some way Canadian. We want to watch shows that interest us. If a show that interests me happens to be Canadian, that might pique my interest, but I am unlikely to search it out. Therefore the requirement is that Canadian content be presented as part of the proposed options within genres that viewers prefer, i.e. no “Canadian silos”. There is no prescription as to how this will be done. It could be along the lines of the “Produced in Canada” labels that Loblaws has just been pressured into putting back on Canadian produced food, it could be an animated beaver waving at the viewer from the corner of the frame, (me, me, watch me) or it could be something more subtle, like prominence of display. We will have to wait and see. Discoverability has come into play because the old world of content quotas is passé. Most consumers today aren’t passive receivers of content that is served up to them; they are actively engaged in deciding what they consume by choosing from the menu. There is choice. What discoverability seeks to do is inform, or some might say, influence that choice.

If discoverability is only about surfacing Canadian content rather than requiring production or airing of Canadian content, then why are the streamers so opposed?  One reason might be that they don’t have that much Canadian content on their platforms and if they are required to constantly highlight new Canadian productions, this might require more investment in acquiring or producing Canadian content, especially if there are restrictive definitions of what qualifies as Canadian under CRTC rules. More on this point below. The second objection is that imposing discoverability will screw up their algorithms (and cost them money). I am not a technical guy but frankly I don’t buy that. If an algorithm can be tweaked to serve up differing content based on one’s user profile, I don’t understand why it can’t be programmed to make Canadian content discoverable. I do understand why the streamers–who operate in many countries–don’t want to do this. But if they have to subtitle in Italian in Italy, perhaps in Canada they may have to tweak the algorithm and the operating system for francophone consumers, both in terms of discoverability and user interface.

Other than having regulations that require a Canadian production to be discoverable, how else could Canadian content stand out? Simple. By being good. The sad result of decades of subsidization of Canada’s TV and film industry is that it has produced a lot of second-rate content that meets Cancon criteria, but which almost no-one wants to watch. You can fill the airwaves with Canadian content, but you still can’t compel audiences to watch it. Of course there are exceptions, but as Peter Grant pointed out in a guest column on this blog a couple of weeks ago, it is an open question as to whether Canada can produce a global hit. Those engaged in the industry—writers, directors, filmmakers—may argue that the structure of the industry (lack of financing) and English Canada’s cultural domination by its southern neighbour means the cards are stacked against producing a good quality, commercially viable Canadian product. Therefore, it is argued, government needs to step in to level the playing field (or tilt it). This has happened for many years, yet the reality is that more is invested in production in Canada (as opposed to Canadian production) by US producers than by all sources of Canadian funding combined, as this study documents. Will discoverability change any of this? Maybe yes, maybe no. Might be worth a try, and in an age where content quotas don’t work, there is not much alternative.

On the issue of streamer contributions, I noted in his CBC press interview that Greer said the Online Streaming Act (OSA) requires (at least until further notice) that US streamers “fund their competitors”. The US regards this as unfair. It is also a misinterpretation and mischaracterization. The main competitors of the big US streamers in Canada are other US streamers. There are Canadian streaming services against which they compete to some extent, like Crave or CBC Gem, but Crave is a “frenemy” because it relies on purchased US content for much of its core programming, and Gem is not going to put any US streamer out of business. The perception that the streamers are required to fund their competition comes from the way their contribution moneys are used.

Under the OSA, as interpreted by the CRTC, the funds contributed by the streamers (and Canadian broadcasters) are allocated in a variety of ways, but none of them are fully controlled by the contributors. There are all sorts of conditions and handcuffs. Among these is a requirement that large online streaming services will, “be required to invest in production partnerships with Canadians that hold the majority of the copyright in the Canadian programming”. In other words, the streamers are limited in their ability to invest in and produce their own Canadian productions to meet their spending obligations. The copyright on the Canadian productions the streamers finance must be held by a Canadian and if the streamers want to exploit that production, they will need to acquire the rights through licensing. They might not be able to do so. For example, they might be outbid by a rival streaming service. This is what I think leads to the argument that they are being forced to fund the competition. If they could control their own productions while meeting Canadian spending guidelines, no-one could argue they were being forced to fund their competitors. I have no idea if lifting the copyright restriction would satisfy the streamers (after all, any business wants “more” and if they can enlist the services of their government to strongarm the other side, why not try?), but it is clear the current system is not working well and furthermore is an obstacle to increased production of Canadian content by the US streamers.

The Cancon system, which is very complex, is not designed to accommodate such a “radical” idea, but maybe as we try to find a way forward to ensure that Canada can promote its content, perhaps we can also find ways to ensure the streamers are incentivized to produce some of that content, as I have written about most recently here and here. This might also result in the content produced being something that Canadians and others will want to watch. Once they have discovered it, that is.

© Hugh Stephens, 2026.  All Rights Reserved.

This post has been updated to provide more detail on the nature of discoverability requirements as outlined by the CRTC.

The Collapse of Canada-US Trade Talks: Respite for Now

A graphic representation combining the flags of the United States and Canada, featuring the American flag with stars and stripes on the left and a red maple leaf on a white background on the right.

Image: Wikimedia Commons (Flanker)

As the Canada-US trade talks went down to the wire last week, working against the artificial deadline set by Donald Trump (with a three-day extension in order to finalize the “deal” he announced on social media, a deal that was about as final as the numerous deals he has announced with Iran over the Strait of Hormuz), I like many Canadians had a foreboding sense of trepidation. Was I worried that the two sides would not come to agreement? No, I was concerned that they would, and that the price of reaching that deal would involve unacceptable concessions by Canada.

Not only that, but the deal would also be about as solid as ice cream in a hot sun. The US would require Canada to change or repeal legislation while it would simply sign an executive agreement that could be rescinded at any time. And that is precisely what would happen next. Mark Carney referred to US commitments being written “in pencil”. One of the supposed US concessions as a result of this deal was agreeing to begin formal negotiations on USMCA/CUSMA renewal. Therefore, Canada’s last and best offer in the interim trade negotiation–that were a necessary attempt to avoid additional 50 percent retaliatory tariffs on a range of Canadian goods as well as to obtain a roll back of sectoral tariffs imposed by the US in violation of CUSMA on steel, aluminum, autos, and wood and wood products–would have become the starting point for US demands for “more” when the formal negotiations got underway. Having seen how little the US was prepared to concede in terms of existing measures, but more precisely how much they wanted for the minimal concessions offered, was surely a wake-up call for the Carney government.

Carney’s last-minute decision to walk away was clearly the right political move from a Canadian perspective, especially with several by-elections coming up in a matter of weeks. Opposition Leader Pierre Polievre’s prepared notes accusing Carney of selling out were quickly chucked aside while Poilievre scrambled to climb aboard the Team Canada bandwagon. Carney’s “elbows up” mantra that got him unexpectedly elected last year was starting to wear a bit thin after unilateral concessions to the US like the eleventh-hour abandonment of the long-planned Digital Sales Tax on large online platforms, a concession that achieved nothing. That said, it is easy to talk tough, but not so easy to accept the responsibility for the economic punishment that may result. Any responsible leader owes it to their constituents and businesses to try to resolve trade issues without resorting to confrontation and retaliation. Canada gave it a good shot this time around, but in the end the price to be paid was just too high. In part, we have Commerce Secretary Howard Lutnick to thank for that.

Lutnick, one of Trump’s billionaire appointments, along with presidential advisor Peter Navarro, is a firm believer in tariffs and in using tariffs to change established trading patterns. Inconvenient trade agreements that constrain this behaviour (such as the USMCA/CUSMA) are to be bypassed or ignored. Lutnick has a particular bee in his bonnet about the Canadian automotive industry, which he essentially wants to drive out of business. There is no question that auto assembly in Canada is dependent on imports of parts from the US and the export of assembled vehicles to US consumers. But the Canadian industry was not established to export to the US; it evolved that way on the basis of a bargain. It has been around for well over a century and was originally established to serve the Canadian market, protected by high tariffs from US imports. Over the years, US companies purchased the Canadian manufacturers, and the industry became more integrated, culminating in the 1965 Auto Pact. That agreement was rolled into the first Canada-US Free Trade Agreement, which morphed into NAFTA and eventually CUSMA. The essence of the deal was that for every vehicle imported duty free into Canada, the automakers had to build one vehicle in Canada. That vehicle might be sold into the Canadian market but could also be sent south to the US, duty free. It was an arrangement that worked well for both sides and has strengthened the North American industry, which needs all the help it can get in the face of Asian and European imports. But Lutnick and Trump don’t understand and don’t like this arrangement. “We don’t want cars made in Canada”, Trump is reported to have said. As the interim Section 338 (referring to Section 338 of the Tariff Act of 1930, obscure legislation resorted to by USTR to impose retaliatory tariffs on Canada) negotiations came down to the wire last week with discussions centering on a reduction in the 25 percent auto tariffs imposed by the Trump administration on Canadian assembled vehicles (these are already a violation of CUSMA terms), Lutnick and Navarro reportedly intervened to minimize the value to Canada of the tariff reduction by excluding medium and heavy trucks from the “concessions”. This was a move aimed specifically at hampering truck production in Canada, one of the few sectors where North American vehicles dominate in both the US and Canadian markets. Lutnick’s carve-out was enough to help tip the scales, forcing the Canadian side to walk away. Thank you, Howard. You inadvertently did Canada a service.

Had Lutnick not introduced this deal-breaker, Canada might have swallowed the poison. Ontario Premier Doug Ford was a key factor too. If the deal was not sufficiently good for the Canadian auto industry, he would have refused to put US booze back on the shelves of the LCBO, (the Liquor Control Board of Ontario), reportedly the single largest global importer of liquor and wine (although this is contested—Costco might be bigger!). Mind you, there were a couple of other deal-breakers on the table as well, which shows either how greedy the US negotiators were, or how little they understand Canadian realities. Surely anyone who haa studied a modicum of Canadian history would know that attacking bilingual labelling in Quebec and support for French language music through discoverability and other requirements is a total non-starter for any federal government. Quebec also has the SAQ (Société des alcools du Québec) card to play. The final deal-breaker cited by Carney in his news conference the day after the deal collapsed was an attempt by the US to constrain Canada’s ability to freely negotiate trade deals with third parties. It is worth noting that Canada already agreed to this with respect to China when it signed the CUSMA deal in 2018. (Article 32.10), but Carney stressed that Canadian sovereignty is not on the table.

In his explanation of the decision to walk away, Carney also cited the need to protect Canadian culture, although he was non-specific. There is no question that cultural groups and content industries in Canada, such as the press and Canadian content producers, were becoming increasing anxious they might be thrown under the bus. There were reports the US was targeting both the Online Streaming Act (OSA) and the Online News Act (ONA). The enactment of the ONA (aka Bill C-18) in 2023 resulted in Meta blocking the posting of (most) Canadian news content to Facebook and Instagram but led to Google agreeing to contribute $100 million annually to support Canadian journalism. Paul Deegan, CEO of News Media Canada warned earlier last week that if the ONA was given up as a bargaining chip in the trade negotiations, the impact on journalism in Canada would be “catastrophic”.

The threats to the future of the ONA in Canada are ironic given that Australia, which was the inspiration for Canada’s legislation, has just passed new legislation (the News Bargaining Incentive) designed to address the dodge employed by Meta in Canada. When Australia introduced its initial News Media Bargaining Code, Meta reluctantly went along with it and struck a number of content deals with Australian media. It subsequently announced it would not renew them as they expire. In Canada, Meta dug in and delisted postings from Canadian media (although there have been some controversial exceptions) in order to avoid being subject to the legislation that required them to reach deals with Canadian media to license content. To address this, the new Australian legislation imposes a 2.5 percent tax on the advertising revenues of the targeted platforms (Meta, Google, TikTok and LinkedIn) unless they strike agreements with news media providers. The tax would be paid into a fund accessible to local news outlets. The tax amount is higher than payments under the voluntary agreements the platforms are expected to reach, providing an additional incentive for them to reach or renew content licensing agreements. It would be hard to see Australia successfully pursue the goal of requiring the big platforms to contribute to production of the news content they use while Canada, which consciously followed the Australian example, retreats from this objective.

As for the Online Streaming Act, recall that in recent weeks the Carney government notified the CRTC that the foreign streamer contributions to the production of Canadian media and content mandated by the Commission will need to be revisited. Was the OSA part of the recently suspended Section 338 negotiations? No doubt about it. US Trade Representative Jamieson Greer in a midweek tweet congratulating Trump on the “deal” that was seemingly about to be finalized, said it would include “comprehensive market access for all American goods, economic security commitments, digital trade alignment, and many important provisions that will continue to protect our market and American workers…”

What “digital trade alignment” might include was not specified but there was speculation it could encompass a commitment to never introduce a DST, reversal of the Online News Act, data governance limits and limitation or elimination of streaming payments. Now, with the collapse of the talks, none of that will happen—for now. However, the 50% Sec 338 tariffs are now in effect and Americans will be paying much more for Canadian honey, salt and toilet paper, among other things, assuming those items will still be on US shelves.

Canada’s decision to terminate the trade talks last Friday really settled nothing, other than to confirm that the US goal is to bring the country fully into its orbit as a satellite state. Carney and Canadians are determined this will not happen and have cards to play. Those cards relate to the impact of Trump’s decisions on the US economy and US consumers, and the potential impact of these decisions on the midterm elections. Canada would do best to take its time and continue to try to find allies within the US. Whether the announced intention of retaliating against Trump’s Section 338 tariffs on a “dollar for dollar” basis is the right approach is another question, but the intent will be to inflict targeted pain on selected US export sectors in order to build pressure on the Administration. The provincial liquor bans were designed with this in mind and have been remarkably effective.

Eventually Canada and the US will need to get to the USMCA/CUSMA negotiating table. CUSMA is still in force notwithstanding the sectoral US tariffs that violate its provisions on specious “national security” grounds. It is a Congressionally approved treaty and unless renounced, which the Trump administration clearly does not want to do, it remains in force unless renegotiated. When renegotiated, and ratified by Congress, it will provide stronger guarantees of predictability than the back-of-the-envelope trade deals that Trump and USTR have been forcing on trading partners. However, if and when those negotiations take place, the issues that led to the collapse of the Section 338 talks will still be on the table.

Canada’s cultural and content industries don’t have the political clout of the dairy industry, which for decades has managed to put its self-interest before that of the rest of the economy and Canadian consumers, or the auto industry, but maintaining economically viable Canadian voices in media, broadcasting, film and literature is part of preserving sovereignty. How that is best done is the topic of ongoing discussion and debate. For now, the OSA, the ONA and Canada’s other digital legislation remains intact. The sector may have dodged a bullet for now but needs to remain alert. It’s never over until its over.

© Hugh Stephens, 2026. All Rights Reserved.

US Streamers and Canadian Content: What is the Role of Copyright? (A Clarification)

A stylized film clapperboard with a Canadian flag design and a letter 'C' in the center.

Image: Shutterstock (adapted)

Last week I commented on the news that the Carney government intends to eliminate even the 5 percent base contribution of revenues required of US streaming services to fund Canadian production, rolling back a requirement imposed in 2024 by the CRTC as part of the first phase of implementing the Online Streaming Act. The story was broken by the Wire Report, which learned of this decision through a letter filed with the Federal Court by the Attorney-General for Canada (AGC) on behalf of the government. The Federal Court is currently hearing an appeal launched by the streamers against the CRTC’s base contribution edict.

The operative paragraph of the AGC letters reads as follows;

“We are instructed to inform the Court that the Government’s intention is to eliminate the base contribution requirement on streaming services and to provide government funding to replace these contributions. We are further informed that the Government expects the direction…to be published for consultation…in the coming weeks.”

In other words, a new policy direction is coming, so stay tuned. The Wire Report stated that the office of the Minister responsible, Hon. Marc Miller, confirmed the streamers will still be required to “reinvest” an unspecified portion of revenues under new policy directives under the Online Streaming Act, which remains in force. How that will be done is far from clear.

I then offered my opinion that if the Carney government wants to replace the current system with a policy alternative which is more likely to attract the support of the streamers (and perhaps lesson the pressure coming from the US Government generated by the streamer’s lobby), it should consider waiving or modifying the regulation that prevents the streamers from obtaining the full rights to the Canadian content in which they are required to invest. Specifically, I said;

Canadian policy makers and the Canadian industry have failed to grasp that you cannot, or should not, require foreign players to fund domestic producers to create Canadian content (CanCon) while simultaneously denying those same foreign entities the right to own or control the marketing and distribution of these productions.

I thought I was clear in what I was saying, but in retrospect maybe I was not as clear as I could have been.

After I’d posted the blog, a knowledgeable observer of the Canadian media scene wrote to me saying I was mistaken because I had suggested that the current Canadian policy–to the extent that it requires Canadian producers to own the copyright in their production– is inconsistent with requiring foreign players to fund domestic producers to create Canadian content. My correspondent noted that any Canadian content requirement imposed on foreign platforms simply requires them to contribute a percentage of their annual Canadian broadcasting revenues to “Canadian programming expenditures” or CPE. CPE could be “direct”, i.e. direct investment in Canadian programs (commissioning and production of content), acquisitions of Canadian programming, or expenses relating to dubbing in Canada using Canadian human resources, or “indirect’, namely contributions to production funds. They pointed out that a foreign platform can meet its CPE requirements by simply buying specific rights to a Canadian program, e.g, to show the program on its service in Canada or in other countries.  CPE doesn’t require the foreign platform to acquire the copyright in the program.

If my correspondent misinterpreted what I was saying, then that is on me, so let me clarify.

Firstly, I am in full agreement with what my critic said. The regulations do not require the foreign platform to acquire the copyright in the program. (I wasn’t suggesting that they did, but it seems I wasn’t sufficiently clear on this point). Indeed, the current regulations prevent it. There are two ways the foreign platform can meet its CPE requirements. The first is by simply paying into a fund (termed an “indirect CPE contribution”) over which it has no control and no access. That is basically how the initial 5% base contribution (now repudiated) was treated by the CRTC. No less than 11 different Canadian funds were eligible to draw funding from the base contribution pot of money. Some of the production was in fields, such as local news, that the streamers do not even produce. This was one of the grounds for the appeal to the Federal Court.

The other way in which the foreign platform can meet its CPE obligations under the current regulations is by investing in, commissioning, or acquiring the rights for Canadian programming, as noted by my correspondent. Canadian programming is defined by an arcane set of criteria that I have discussed elsewhere. It requires a certain number of Canadian inputs, from key creative positions and performers all the way down to make-up artists and hairdressers. But there is one key kicker. The IP rights, the ©, must be held by a Canadian for a set number of years, or else the program does not qualify as Canadian with respect to CPE obligations. In other words, the foreign platforms that are commissioning, investing in and funding the production in order to meet their direct CPE targets cannot own the rights. If they do retain the rights, the funds spent on creating content do not count against CPE requirements. Yes, foreign platforms can license a production to obtain distribution rights, but they must negotiate with a Canadian rightsholder to so–even if they have funded the program. Under normal industry practices, the platform would be free to hold the bundle of rights conferred by copyright if they wished to do so. This is often the case as it leads to a better return on investment.  

To be clear, I was not saying that the copyright restriction prevents foreign streamers from investing in Canadian production. Indeed, they are obliged to do so regardless of whether or not they can control the rights (which they cannot). Rather, the copyright restriction discourages the streamers from making any effort to go beyond the minimum legal requirement to fund Canadian production because they have no incentive to do so. Why invest in a production in which you can’t own the rights—unless you have no choice. The streaming industry works on the basis of different acquisition models, but for commissioned production or production where the bulk of the production cost is underwritten, the normal practice is to acquire all the rights through control of the copyright in the work. This allows for international distribution as well as control of subsequent release in different formats. If Canada is now going to replace the mandated CPE contributions with something else, it would make sense to find ways to encourage the streamers to “re-invest” in Canada. A positive step forward, in my judgement, would be to loosen the copyright chokehold.

I have no way of knowing for certain whether this would result in increased expenditure on Canadian production by the streamers. Many factors go into production decisions, including regulatory requirements. But a regulatory requirement is a stick. The current CPE requirement assumes that the only reason a foreign platform would invest in a certified Canadian production is because it is required to. But carrots can also be used. A well used carrot is a production subsidy. Canadian producers would no doubt scream bloody murder if Canadian taxpayer funds were used to subsidize US productions of Canadian stories. Yet, taxpayer funded subsidies are routinely used to encourage US studios to produce US content in Canada for US audiences. Foreign Location Shooting (all those Netflix, Disney or Hallmark and other productions made in Canada where Vancouver substitutes for Seattle or Toronto for some large US city) is big business and is heavily subsidized by Canadian taxpayers through both provincial and federal incentives.

If the objective is to keep workers in the Canadian film industry employed while facilitating the telling and indeed the export of Canadian stories, then why not let the streamers, who are skilled at production and international marketing, get full credit for the funds they put into Canadian production by allowing them to hold the rights and determine how the product will be used? If it is Canadian policy to increase the production and international distribution of Cancon (using the current criteria but without the copyright restriction), why not apply the euphemistically titled film “tax credits” to Cancon regardless of whether the IP rights are held by an international company or a Canadian entity?  Such an approach is likely to give Cancon much wider exposure than currently.

Some will say this is naïve; that the US studios have no interest in promoting Canadian stories. They only want to dumb down any expression of Canadian identity. I would respond with two points. First, a lot of what already qualifies as CanCon has no recognizable Canadian identity but provides sustenance for Canadian creatives, directors, showrunners, even hairdressers. Second, the studios will produce what sells. They are neither for nor against Canadian identity. If a good story is enhanced by a being set in a Canadian background–in other words if there is a business case to be made–then it will be produced. If a financial incentive is available for a foreign studio that jumps through all the hoops necessary to obtain CanCon certification, this might be the factor that tips the balance toward greenlighting a production. Canadian stories are not just produced for the limited Canadian market. They can have broad international appeal, including to US audiences, if they are crafted and marketed properly, just as Korean, Nordic, Spanish, British, Australian and other content has enjoyed success internationally.

It is also worth noting that streaming is a competitive business. Costs are going up, as consumers will have noted. While the industry is big, if it is regarded as an unlimited cash cow whose function is to fund every variety of Canadian content, from local news to Indigenous production to minority Official Language groups, then it is not surprising there will be pushback. If the forthcoming policy change results in a more flexible Canadian content policy by waiving or eliminating the Canadian ownership requirement for foreign platforms, while creating incentives for them to produce CanCon rather than punishing them if they do not, this could open the way to a better outcome for the foreign platforms, for consumers and for Canadian creators.

© Hugh Stephens, 2026. All Rights Reserved

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

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

Image: Shutterstock

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

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

Not at all.

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

Our laws will spell that out, plain as day.

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

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

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

Anything less, is theft.”

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

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

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

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

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

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

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

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

© Hugh Stephens, 2026. All Rights Reserved.

Litigation vs. Licensing for AI Training

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

Image: Author

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

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

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

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

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

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

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

© Hugh Stephens, 2026. All Rights Reserved

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

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

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

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

Image: Shutterstock

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

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

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

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

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

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

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

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

© Hugh Stephens, 2026. All Rights Reserved

Can You Copyright a Totem Pole?

View of a modern building surrounded by trees on a rocky shoreline under a cloudy sky.

Photo: Author

Can the individual or individuals who design and carve a totem pole claim copyright protection for their work? This question crossed my mind during my recent visit to Haida Gwaii, those mysterious fog-shrouded islands in the North Pacific about 150 kilometers west of the British Columbia mainland, just south of Alaska. The home of the Haida, skilled mariners and master artists and carvers. I have always wanted to visit Haida Gwaii and last month my wife and I finally made the dream come true, as the photo above will attest.

Today Haida artists work in all media, copper and silver jewellery, weaving, paintings, carved small objects such as bowls, spoons and miniature ceremonial objects, often in jade and argillite (a form of hard slate found only on Haida Gwaii) and, most famously, large wooden totem poles, typically between 40 and 50 feet tall. It was the late 19th century photos of Skidegate and other Haida villages that made the islands famous. Curved shingle beaches fringed with cedar beam houses, each with its clan totem in front, with the thick untamed forest behind, as shown in this 1878 photograph by George M. Dawson.

Black and white photograph of totem poles and a historic building along a beach, with canoes in the foreground and trees in the background.

Public domain: Wikimedia Commons

Those days are gone, although the beautiful Haida Gwaii museum and cultural centre in Skidegate, captured in my photo above, attempts to recapture the romance of those early days. Most of the villages were abandoned as disease decimated the Haida population. The survivors were encouraged by the missionaries to resettle in one or two centres. Carving of totems was actively discouraged. Cultural traditions such as the potlatch were outlawed by the government of the day. Many poles were taken away to museums around the world, such as the British Museum, Humboldt Museum in Berlin, Royal Ontario Museum in Toronto and the American Museum of Natural History in New York, while those that remained were left to be reclaimed by nature as part of the natural cycle of birth and death. And yet, today, it is still possible to see a few remnants of 19th century poles, while a number of new poles have been carved and erected in recent years, including those at the Haida Gwaii museum. The totems are an indelible signature and symbol of the Haida nation (although a number of other First Nations along the B.C. and Alaska coasts also carved similar poles). However, are they also individual works that can be protected by copyright? The answer, in most instances, seems to be yes. It depends on whether the pole can be attributed to an individual or a small group of individuals as “joint authors” (or in the case of paid employees, to a corporation that employed them). Traditionally a pole belonged to the clan (the Haida have two clans, or “moieties”, raven and eagle) or family that resided in a dwelling featuring a pole, but nonetheless if an individual pole can be identified with a specific artist, modern copyright protection would apply.

The day we visited the Museum in Skidegate, there was lots of activity in the carving shed. Two poles were being worked on. I chatted with a couple of the carvers and learned that each had a specialized role, but none of the carvers we spoke to were “in charge” of the pole. That role belonged to “Norman”, who had the commission for the poles and who also appeared to be the designer. The others were chiselling and smoothing, following his designs that had been stencilled on to the wood. These poles are apparently destined to be erected on the waterfront in the nearby village of Skidegate.

A workshop interior with two men carving a large wooden log, surrounded by tables with tools and wood shavings on the floor. Natural light enters from a window, and another wooden structure is visible in the background.

Photo: Author

The master carver/commissioning entity (Norman?) should be able to assert copyright over the work, even though some of the actual carving was done by others. Copyright can be held by the master artist even though they may not have personally executed every element of a work. This was the case with the famous glass artist Dale Chihuly who was sued by one of his staff, one Michael Moi, who claimed that he was not just an employee in Chihuly’s studio but a co-creator. At the time (2017) I wrote a blog post in which I pointed out that in a studio controlled by a master artist (like Chihuly or Andy Warhol for example), the master could legitimately claim to be the creator if they exercised overall artistic control. That included “signing off” or authenticating the work as meeting their standards. The US District Court in Seattle was apparently of the same mind as Moi’s claim was thrown out in 2019.

What about joint authorship being shared among the carvers? There are provisions in Canadian copyright law for joint authorship, with no limit on the number of authors who can be involved, but it is generally accepted there must be intent and mutual understanding from the outset on the part of all parties that the work will be one of joint authorship (a US concept that has been applied in Canadian legal cases). A joint work exists, subject to mutual agreement, where the work of one author is not distinct from the work of the other(s), although the contribution of each party does not have to be precisely equal. But it must be substantial. There needs to be joint labour in execution even if one contribution is qualitatively or quantitively inferior to the other. Therefore, it is possible that two or more carvers could execute a work where they could claim to be joint authors, or co-owners of the copyright in the work. This, however, does not seem to be the case with notable Haida totem poles carved in recent years.

The most notable individual names in Haida pole carving (apologies to anyone I have inadvertently left out who should be included) are, using their English language names, Charles Edenshaw (1839-1924), Bill Reid (1920-98), Robert Davidson (b. 1946) and Jim Hart (b. 1952). Interestingly, but perhaps not surprisingly, Reid, Davidson and Hart are all related to Edenshaw. He was Reid’s great-great uncle and great grandfather to both Davidson and Hart. Hart, a member of the Order of Canada, has been a prolific pole carver, and there are several well-known poles directly associated with him. Among these are the Reconciliation Pole at UBC, erected in 2017 and other poles at the university’s Museum of Anthropology. These poles are all recognized as the works of Jim Hart. As such he would have a copyright claim on the design of his poles, even if they followed traditional designs. He could not stop someone else from using a similar traditional design, but he could prevent copying of his precise expression of those designs. Photos of the poles, however, such as those at the top of this blog, are not protected by copyright under what is commonly referrred to as the “freedom of panorama”. Section 32.2(1) (b) (ii) of the Canadian Copyright Act applies.

Just in case you were wondering, this says;

“It is not an infringement of copyright…for any person to reproduce, in a painting, drawing, engraving, photograph…a sculpture or work of artistic craftsmanship…that is permanently situated in a public place or building”

Whew. My photograph above is not infringing.

Back to Jim Hart. I have focussed on Hart because I had a brief personal encounter with him and one of his carved works in an unusual place for a totem pole, Seoul, Korea some 35 years ago, when we were both much younger. At the time, 1990, I was an officer at the Canadian Embassy. Then, as now, the embassy was actively working to promote increased trade and investment between Canada and Korea and to promote bilateral ties, we organized a Canada Week in March of 1990. There were a series of cultural and business events, including the opening of a major Canadian Trade Show at the KOEX, an exhibition centre in Seoul. Someone in Ottawa had the bright idea of shipping a pole carved by Hart to Seoul as a cultural attraction to help promote Canada Week. The pole had been shipped from Vancouver to Yokohama to be part of the Canadian pavilion at the Yokohama Expo ’89. Why not send it on to Seoul before it was shipped back to Canada? As a result, one of my key tasks was to negotiate with various Korean municipal authorities to have the pole erected at the front entrance of the KOEX. In a note of binational solidarity, Hart’s enormous pole was to be matched with two Korean jangseung, smaller (about 6 feet) poles that traditionally were erected at the entrance to Korean villages. They feature carved faces designed to frighten off evil spirits and bear some resemblance to small totem poles. While there is no proven cultural or genetic connection between Koreans and North American Indigenous peoples, Koreans are fascinated with the possibilities, and this “hook” gave us a real publicity boost.

A collection of wooden totem poles with carved faces, standing in a garden area. The background features a stone wall and bare trees under a clear sky.

Image: Shutterstock.com

The difficulties we faced in finding a suitable site in front of the exhibition building, and then getting approval from the municipal authorities and the utlities seemed insurmountable—but we did it. The digger went to work to excavate the hole for the pole—until buried electrical wiring was discovered. A quick adjustment was made and Hart’s pole was exhibited “lying down”, on its back, with the top of the pole slightly raised, under a plexiglass cover in front of the main entrance. Erecting the jangseung upright beside them was relatively simple by comparison. Before we knew it Korean children were clambering all over it, and we had to hire a security guard to shoo them away before the big opening the next day. On March 27, 1990 Canada Week at the KOEX opened with widespread Korean media coverage. Jim Hart, who was there, performed a ceremony around the pole and was interviewed by the Korean media. Two Canadian pianists, Anagnosen and Kinton who, it appears, are still actively performing, played just inside the entrance. The event was a huge success. I breathed a deep sigh of relief. Jim Hart and his work of art had helped make it all happen. I don’t know what has happened to that particular pole. It was shipped back to Canada and may today be looking out over the beach at Massett, Haida Gwaii, Jim Hart’s home. I had hoped to make contact with him during our visit there but regrettably was not able to do so. 

I realize I have taken a very long detour to answer the question as to whether a totem pole can be copyrighted. While Indigenous cultural expression does not always align well with western legal concepts, partly because of the individuality requirements and time limitations of works protected by copyright statute, I hope I have demonstrated that, yes, a unique totem pole in which identifiable individual or joint authorship can be determined, is indeed protected by copyright.  

© Hugh Stephens, 2026. All Rights Reserved.

Update: I have subsequently learned, upon reading the recently released book 7IDANSOO James Hart: A Monumental Practice, published by the Audain Art Museum, that the pole in question, a replica of a 19th century pole that once stood at the now-abandoned village of Yan across the estuary from Old Masset, was installed at Yan in 1991, where it stands to this day. The Audain book is a comprehensive catalogue of Hart’s life and work, beautifully edited and presented.

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

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

Image: Pixabay.com

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

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

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

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

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

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

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

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

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

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

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

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

© Hugh Stephens, 2026. All Rights Reserved

What is a Canadian Book? And Why Should I Buy One?

A display table covered with various books, featuring a sign that says 'Read the North.' The books include a mix of fiction and non-fiction, many with Canadian-themed stickers.

Image: Author

Walk into any bookstore in Canada today, from an Indigo big box store to a small indie outlet, and if you aren’t smacked in the face with books covered in prominent maple leaf logos, or a banner proclaiming “Canadian!”, then you must be living on a different planet from me. Of course, the same applies in your local grocery store where—despite occasional mislabelling—consumers are apparently more than ready to choose Canadian produce at the expense of Florida oranges or California raspberries. If you run a travel agency, it’s better to advertise trips to Newfoundland than Disneyland. The federal government is encouraging the trend with its new “Buy Canadian” procurement policies. If consumers need help, there is even a “Made in CA” (Canada, that is, not California) website, which sustains itself financially by recommending Canadian products and then earning revenue from readers’ clicks on featured links. The surge in Canadian consumer nationalism is one facet of Canadians’ response to Donald Trump’s “make Canada the 51st state” nonsense, and retailers would be foolish to ignore the trend. Booksellers are no exception. But the question is whether this sudden discovery of the virtues of Canadian (or supposedly Canadian) products is having any marked difference on the sale of Canadian books. This leads to the next big question, “What is a Canadian book?’.

That is a longstanding debate on which there are many views. I recently saw a pile of “Canadian” books at Indigo, among which was anti-copyright maven Cory Doctorow’s Enshittification. A Canadian work? Yes, Doctorow was born in Canada but has taken out UK citizenship and has lived in the US for a decade. The publisher is a print of MacMillan, which was British owned but is now German controlled. However, I guess Doctorow is as Canadian as John Kenneth Galbraith or William Shatner. Why shouldn’t Star Trek Memories qualify as Canadian literature? No country has a claim on outer space in the 23rd Century. Is a book Canadian if it is written by someone who is, or was, a Canadian? Do they have to be a citizen or does a recent immigrant qualify? Does it have to be set in Canada? Does it need to be published by a Canadian publisher? If it is published by a Canadian publisher (like my book, In Defence of Copyright, published in 2023 by Cormorant Books—apologies for the shameless plug), does this make it “more Canadian”? Is the fact that foreign owned publishers control around 95% of the Canadian publishing market in 2025 a problem? If so, what to do about it, and how? Should the best Canadian writers eschew foreign publishers and instead seek out domestic publishing houses, even if this means they will earn less? There is a lot to consider.

The evidence suggests there has been an uptick in demand for Canadian books in Canada. Publishers’ Weekly reports that print book sales in Canada climbed to CAD$1.15 billion (around USD800 million) in 2025, a gain of 4.1% over 2024. Many of these books were not Canadian although books by Canadian authors accounted for 14% of unit print sales in 2025, up from 12% in both 2024 and 2023. Fourteen percent of $1.15 billion is about $160 million, not small change. However, most of these books by Canadian authors were published by the “Big Five” (Penguin RandomHouse, MacMillan, HarperCollins, Hachette, and Simon&Shuster). All are foreign owned (two German, one French, and two American). Some of the Canadian works were released as international editions, some by the domestic Canadian operations of the Big Five. The most well-known Canadian authors, including Nobel Prize Winner, Alice Munro, and Booker/Giller prizewinner Margaret Atwood (The Handmaid’s Tale, The Testaments, The Blind Assassin and others), were/are all published by large international publishing houses, as you would expect. (Munro and Atwood are published in Canada by McClelland&Stewart, owned by Penguin RandomHouse). Even Prime Minister Mark Carney’s bestseller, Values, is published by a foreign owned publisher, a Penguin RandomHouse subsidiary. Is this a problem? To some, such as Richard Stursberg, it is.

Stursberg has just released his latest book, an essay really (under 100 pages) entitled Lament for a Literature: The Collapse of Canadian Book Publishing, published by independent Canadian publisher Sutherland House. Stursberg knows whereof he speaks. He has been involved in the bureaucracy and politics of Canadian media policy for many years, as Executive Director of Telefilm Canada, Chairman of the Canadian Television Fund and as Head of English Services at the CBC, among others. “Lament for a Literature” (a takeoff on George Grant’s 1965 essay “Lament for a Nation”) has already received a fair amount of publicity, through interviews (MediaPolicy.ca; Canadian Affairs), and commentary (Globe and Mail). There seems to be broad agreement he has put his finger on a problem and a Canadian weakness, but the question remains what to do about it? There is a lot less consensus on possible solutions.

Stursberg’s approach is what many would consider draconian. Increase subsidies substantially and remove the Canada Council’s adjudicative role over what should qualify for a subsidy. Make the subsidies open ended and tied to production, like film credits. While this will be criticized as fiscally irresponsible, no-one seems to object to film credits (which are direct subsidies) because they support jobs in film production. Publishing supports jobs too, although not as many and not as wide a variety. So, maybe an argument can be made for subsidizing jobs in Canadian publishing. (However, to follow the film credit analogy fully, Canada would have to provide book credits to foreign publishers as it does to Foreign Location Shooting in Canada). Stursberg would also manipulate the market in various ways through regulation and a Canadian book law. This would require a foreign rights holder wanting to distribute a foreign title in Canada being required to offer the distribution rights to a Canadian publisher. This is easier said than done because price will be the key. The international publisher will want maximum return, while the Canadian publisher will want to cash in by selling a title they did not develop. Giving Canadian publishers a share of the international pie is the intent of the policy; to provide a market subsidy to Canadian independent publishers by giving them regulated access to foreign best-sellers. That is supposed to provide them a war chest with which to fund the development of Canadian authors. It is similar to a book version of various broadcasting industry interventions, such as simultaneous substitution and aspects of the Online Streaming Act.

There are various downsides to this kind of market intervention, not the least of which is violent objection from the US government, but these days they are objecting to just about everything that Canada does, from Mark Carney’s trip to China (isn’t Donald J. going there soon?) to the Online Streaming and Online News Acts, to dairy supply management to the price that Canadian kitchen cabinets are sold in the US, the latter qualifying (in the eyes of the US Administration) as a national security threat allowing them to invoke Section 232 of the US Trade Act. A heavily interventionist policy could also lead to market distortions, resulting in unauthorized foreign editions of best-sellers being smuggled into Canada, much as pizza cheese from the US has become a black market commodity as a result of Canada’s dairy supply management policy.

Stursberg has other suggestions, such as legislating a fixed retail price for a given work in all bookstores, thus preventing Amazon and Indigo, for example, from offering discounts that indie bookstores may not be able to afford, as well as requiring that online retailers charge a delivery fee. So much for Amazon Prime. That will be popular with readers, I am sure. Public schools and libraries would be required to source all their books through accredited bookstores. To be accredited, a store would need to carry a minimum number of Canadian titles. Public institutions could not source from online retailers. That is another sure way to antagonize institutional purchasers, although I am sure it could be argued it is for the “greater good”. But all such bureaucratic market intervention policies cause collateral damage and often unintended consequences. So, what is to be done?

In my experience, reading remains remarkably popular both for entertainment and intellectual growth, in Canada as elsewhere. Canadians should be naturally interested in their own stories played out in Canadian settings, but these stories need to compete with what’s available in the big, wide world. Relevance and excellence (along with marketing) are the way to promote a domestic literature. I refuse to read a book simply because it is “Canadian” (whatever that may mean), but I will likely pick up a book that piques my interest and is well written, especially if it is Canadian. Perhaps the newfound nationalism of “Buy Canadian” will provide a boost to emerging and established Canadian writers. Some of them will get picked up by the Canadian imprints of the Big Five, some will be discovered by Canadian indie publishers and still others will self-publish. I am optimistic that despite the dominance of the Canadian publishing market by foreign publishers through their Canadian subsidiaries, good Canadian stories will continue to be published. A stronger indie publishing sector would be welcome and. in this regard, industrial rather than cultural subsidies may provide a partial response. In the meantime, I am sure that Canadians will continue to debate, “What is a Canadian book?” Whatever it is, we need to look beyond the Maple Leaf label on the cover.  

© Hugh Stephens, 2026. All Rights Reserved.

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

By Christine Rose Cooling

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

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

Image: Shutterstock.com (modified)

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

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

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

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

Enter Stage Left: The U.S. Response

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

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

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

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

From Signals to Streaming

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

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

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

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

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

© Christine Rose Cooling, 2026

Biography

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