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 andmedia 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.
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”.
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.
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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 (Leregroupement 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.
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.
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.
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.
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.
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.
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.
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.
(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).
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 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.
The ongoing David vs Goliath tussle involving a small web-based Ottawa public affairs journal, Blacklock’s Reporter (BR), that took on the Government of Canada (GOC) over a series of alleged copyright infringements, has just seen a significant new development. On March 19, 2026, the Federal Court of Appeal (FCA) announced its decision in the Parks Canada case, upholding BR’s appeal of a 2024 Federal Court ruling delivered by Justice Yvan Roy. Roy had declared (1) that the use of a password by Parks Canada to access BR content constituted fair dealing under the Copyright Act, and (2) that the licit use of a password does not constitute circumvention of a TPM (technological protection measure, often referred to as a “digital lock”) as defined in the Copyright Act. That decision and its attendant declarations are now vacated. Costs were awarded to BR. This is an important victory for rightsholders and businesses that depend on TPMs to protect paywalled content. It’s also a black eye for the government’s litigator, the Attorney General for Canada (AGC), which sought these declarations as a way of justifying alleged repeated cases of copyright infringing activity by various GOC Departments and agencies.
Let’s review the history. BR is a subscription-based digital journal. Its stock in trade is “Inside Ottawa” investigative reporting. It is, frankly, a thorn in the side of government which is precisely why its role is so important. Its breaks the stories that well-staffed and well-funded departmental communications shops don’t want covered. It doesn’t print government news releases; instead, it provides investigative stories to its customers. An individual can subscribe to BR on an annual basis for a relatively modest sum, currently $314 plus tax, which compares favourably to the digital subscription rates of leading national media organizations. However, larger entities like companies or government agencies that have multiple users require institutional subscriptions. The cost depends on the number of subscribers, i.e. the degree of access. There is nothing unusual about this; it is a common business model. That business model depends on controlling access to the paywalled content. Passwords are commonly used for this purpose.
For a number of years, BR has been fighting the GOC over the government’s unwillingness to pay for bulk subscriptions for its various agencies. Because BR had difficulty in knowing how many employees within a given agency had access to its content, it filed Access to Information (ATI) requests to obtain this information. It then used the ATI revelations–which confirmed there were multiple users (in some cases, thousands) who were not covered by the subscription to BR– to bring suit for copyright infringement against these government agencies. This led the government’s lawyers, through the Attorney General for Canada (AGC,) to accuse BR of entrapment and using copyright trolling as a business model. This ludicrous accusation, which in effect suggests that BR only investigates and reports on what the government is doing in order to sell bulk subscriptions to government agencies, was firmly and rightly rejected by the courts. Given that BR was only suing for the cost of an institutional subscription, it seems evident that their sole objective was to be paid appropriately for the use of their services. However, despite the Court’s repudiation of the trolling accusation, to date BR has not been successful in proving copyright infringement on the part of the GOC and its agencies. The successful appeal opens up the possibility of further court action.
The Parks Canada case was one of BR’s first attempts to assert its copyright, as I discussed in an earlier blog post. In 2013, a Parks Canada employee accessed the BR website and purchased an individual subscription. She then shared the password she obtained with a number of other employees within the agency. BR sued, arguing this was copyright infringement and a violation of its terms of service. The AGC on behalf of Parks Canada contended the use was a fair dealing for research purposes. The nub of the issue was whether the content had been accessed legally, which is a requirement to be able to exercise the fair dealing provisions of the Copyright Act (Section 29). Fair dealing (that is, use without permission for specified purposes) does not apply if the content is protected by a TPM that has been circumvented. Circumvention is described in the Act as using descrambling or decryption or to “otherwise avoid, bypass, remove, deactivate or impair” the TPM. But what was the TPM (the password or the paywall?) and was it “bypassed”? It was a complicated scenario. As was its right, BR announced in 2021 that it had decided to discontinue this particular case and instead focus on infringement that had occurred elsewhere, in another GOC agency.
That should have been the end of it but for the action of the AGC, which did an end-run on BR’s discontinuance motion. This was was due to be officially filed on Monday morning, July 5, 2021. The AGC filed an application for summary judgment and a counterclaim (on a Sunday yet, July 4, the last day possible for such action) seeking the declarations mentioned in paragraph one. The original plaintiff, BR, thus became the respondent. The AGC sought to use the Parks Canada case, which the plaintiff had chosen to discontinue, to obtain broad declarations it could use in other cases brought by BR. For example, it sought a broad declaration that a password was not a TPM (which would imply therefore that password sharing was legal). However, the Federal Court declined to address that issue, limiting its decision to the facts of this one case. Having been forced to defend a case it had sought to discontinue, becoming in effect the respondent, and having lost, BR appealed. It has now been vindicated. As Appeal Justice Wyman Webb of the Federal Court of Appeal (FCA) clearly stated;
“…the Federal Court erred in making the declarations. I would allow the appeal and set aside the Judgment of the Federal Court”.
What has been the reaction in the free-access community that had so openly lauded the initial Federal Court decision? University of Ottawa professor Michael Geist, who crowed that the original decision, now overturned, was a “huge win” for users of copyrighted content–at least those who don’t want to pay for the paywalled content they use—has remained silent. For many years Dr. Geist has been closely associated with CIPPIC (the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa) which was a third-party intervenor in the case, supporting the AGC. While Geist has remained silent, CIPPIC has commented, trying to minimize the impact of the decision by dismissing it as a technical issue. Although Justice Roy’s declarations have been set aside, CIPPIC tries to salvage some usable timber from the wreckage by claiming that his views on fair dealing and passwords remain as obiter (non-binding opinions). However, as this legal blog notes,
“This appellate ruling effectively nullifies the precedential value of the judgment….Moreover, the FCA explicitly noted that the court’s findings…that Blacklock’s paywall was “not the TPM” (as distinct from the password) was obiter dicta and not binding. While the FCA declined to endorse or criticize this comment, it appears that the FCA was skeptical of the findings of Justice Roy.”
Retired IP lawyer Howard Knopf, who maintains a blog titled “Excess Copyright” (which tells you all you need to know about his views on copyright), has written extensively on the BR Parks Canada case over the years. Back in August of 2024, after Justice Roy’s decision against BR, he commented that “I would frankly be surprised, but not shocked, if BR actually does appeal.” He thought BR had more to lose than to gain from doing so. Once BR had launched its appeal, Mr. Knopf informed the world that “the jurisprudence and the factual record suggest that Blacklock’s will lose the appeal.” That was clearly his belief, but he backed it up by asking ChatGPT (I am serious), which agreed that BR’s appeal would be dismissed and Justice Roy’s decision affirmed in all respects. Then came the Appeal Court’s decision. Oops. How to explain that? Easy. It was a “pyrrhic victory”. Blame ChatGPT. After all, it can’t be expected to be right all the time.
Why was the victory so “pyrrhic” (meaning not worth the cost of victory)? Knopf doesn’t say, although he is forced to acknowledge that the AGC’s motion for summary judgment has been dismissed, the declarations are voided, and costs have been awarded to BR. Having got the Parks Canada case–which it wanted to discontinue–set aside, BR is free to pursue other options, and it may do so. While Justice Roy’s views on fair dealing have not been reversed, they have also not been accepted. They have been nullified (set aside). This is not a pyrrhic victory; it is real and substantive.
The Government of Canada has deep pockets when it comes to litigation. Rather than waste these taxpayer-funded resources in pursuing small businesses who are seeking to get paid fairly for their work, as it clearly did with its “too clever by half” legal manoeuvre on the Parks Canada case, it should walk its talk about supporting Canadian media. This means doing the right thing and paying for the access it provides to its employees. Instead, it unleashed the legal dogs at AGC to try to teach BR a lesson. That strategy has just blown up in its face. Score one for David.
This is the time of year (the days and weeks after January 1) when, on a quiet news day, lazy journalists in Canada used to pick up and amplify a US based story about such and such a work falling out of copyright and into the public domain and write a story about it, complete with a grabbing headline, often to the effect that Mickey Mouse or Batman or The Great Gatsby or whoever is now “liberated from the chains of copyright”. The CBC did exactly that in 2024, producing a radio special on Steamboat Willie entering the public domain, completely ignoring the fact that all works created by Walt Disney and Ub Iwerks (which include the earliest editions of Steamboat) had already entered the public domain in Canada two years earlier, on January 1, 2022. Iwerks was co-author and joint rightsholder along with Disney for this work and as the co-author who lived the longest (he died in 1971; Disney in 1966) the term of copyright protection in Canada was based on the year he died plus, at the time, an additional 50 years. Thus, January 1, 2022 in Canada. As I wrote a couple of years ago (Canada is not the United States when it comes to Copyright: The Cases of Anne of Green Gables and Steamboat Willie (or Down the Copyright Rabbithole, Twice), sometimes works still under copyright protection in Canada are in the public domain in the US, and sometimes it is the reverse. Don’t assume. This law firm’s blog post (Gowlings) provides a good overview of what to watch out for.
The mistake of making the assumption that what happens in the US is automatically applicable to Canada is the unfortunate reality of being a cultural minnow living cheek by jowl with a content creation whale. This year I didn’t notice any of the reflected US public domain stories in the Canadian media, perhaps because the penny has finally dropped that public domain day in Canada will be a non-event until the year 2043 (no need for any hype), owing to the extension of Canada’s term of copyright protection from the life of the author plus 50 years to life plus 70 (for most works). Any works that had fallen into the public domain under Canada’s previous “life plus 50” term did not receive the additional term of protection but any works still copyright protected in Canada at the end of 2022 got another twenty years coverage before entering the public domain. Had Ub Iwerks died in 1972 instead of a year earlier, Steamboat Willie would have enjoyed another two decades of protection in Canada beyond what applies in the US, although it is doubtful whether the Walt Disney Company would have tried to enforce its rights under Canadian law.
Not only has Canada harmonized its current term of copyright protection with the US, EU, UK, and a number of other countries, (although there will always be discrepancies between the terms of protection afforded works in Canada versus those in the US for many years to come owing to the historical peculiarities of how the term of protection is calculated under US copyright law), there have also been fewer quiet news days in early 2026 thanks to the daily Donald Trump Reality Show. Moreover, there has been a surge in Canadian nationalism (and thus a greater awareness of cultural differences) as a result of the Donald’s 51st state taunts. (Prime Minister Mark Carney, an internationally recognized banker and financial executive seemed initially to enjoy Trump’s respect but since his Davos speech calling out the realities of the new world order, Carney, like his predecessor Justin Trudeau, has been demoted to the title of “Governor Carney” on Truth Social, apparently the current official channel for announcements of US government policy). So, journalists, if you want to write about what makes Canada different from the US, in addition to measuring distance in kilometers and saying “sorry” every time someone bumps into you, you could note that US and Canadian copyright laws are different. Similar in intent but not identical. For example, the US fair use doctrine with its unpredictable focus on transformative use does not apply in Canada, the US requirement for formal registration of copyright in order to bring legal action does not apply in Canada and, in particular, the complex (because of its convoluted history) US determination of when a particular work falls into the public domain does not apply in Canada.
This year, as it does every year, the Center for the Study of the Public Domain at Duke University’s Law School, published its Public Domain Day blog, highlighting all the works that fell into the US public domain on January 1, 2026. These include such well known works or characters as Agatha Christie’s The Murder at the Vicarage (protected in Canada until January 1, 2043) , Somerset Maugham’s Cakes and Ale (in the public domain in Canada since 2016), Blondie and Dagwood, nine additional Mickey Mouse cartoons, Dutch artist Piet Mondrian’s Composition No. II/Composition in Red, Blue, and Yellow, four songs by Ira and George Gershwin, and so on. Much is made of the fact that these works will be free to anyone to use, remix, copy and exploit but it’s not as if these works have been locked away in a closet, although their unlicensed use has been protected by copyright law. Copyright protection does not stop anyone from creating new works and while there may be limitations on hijacking Inspector Poirot there is nothing stopping aspiring writers from creating detective novels. There is another element worth noting as well. Particularly when it comes to copyrighted characters and cartoons, their later iterations may still be copyright protected in the US (because of the US baseline being date of publication plus a set number of years) not to mention protection offered by registered trademarks. Sometimes estates try to hang on to copyright protection at all costs, as appears to be happening in the US with Mondrian’s work. (It has been in the public domain in Canada since 1995, 50 years after Mondrian’s passing).
Once a work has entered the public domain it can be used in derivative works without permission. Has this resulted in a slate of new and creative works being produced for the benefit of mankind? Hardly. The usual result is for a brief surge of “edgy” productions incorporating a new public domain work, such as Steamboat Willie doing or saying things that Dear Old Uncle Walt (Disney) would never have countenanced. As I noted a couple of years ago, the “liberation” of copyright protected works has led to such triumphs as The Gay Gatsby, The Great Gatsby Undead (Zombie Edition) and the film Winnie the Pooh: Blood and Honey. So much for the public domain unleashing the juices of creativity.
For better or worse, copyright is not a perpetual property right. I support reasonable limitations on copyright protection including making a provision for works to enter the public domain after their prime exploitability has passed. This will vary by work with some works remaining evergreen, encouraging new investment into derivative works, updates, new editions, as well as providing ongoing returns to the estates of authors. However, at times there are situations where a work is long out of print and the rights-holder cannot be located, blocking a reprint. These situations can be dealt with through specific exceptions, much as fair use and fair dealing allow for specified unauthorized uses that do not damage the rights of the author.
To come back to the narrative that the public domain liberates content from the “shackles of copyright”, I contend this is nonsense. Beware the hype. And if you reside outside the US, don’t believe everything you read in the media regarding what works are in the public domain. You might be pleasantly surprised to find that a work has been in the public domain in your country for years (while Conan Doyle’s later works only entered the US public domain in 2023, they have been in the public domain in Canada since 1981). On the other hand, you might find the work you thought was free for adaptation based on what Duke University’s Center for the Study of the Public Domain says is way off base and it is still protected by copyright in your country of residence. Beware the hype and do your homework.
The Ontario Superior Court has ruled it has jurisdiction to hear the case against ChatGPT owner OpenAI brought by a consortium of Canadian media companies led by the Toronto Star. The media enterprises, who include the Globe and Mail, PostMedia, CBC/Radio Canada, Canadian Press and Metroland Media Group, are suing the US company for copyright infringement, circumvention of technological protection measures (TPMs), breach of contract, and unjust enrichment as a result of OpenAI’s scraping of their websites to obtain content to train its AI algorithm. The allegations also cover OpenAI’s use of Retrieval Augmented Generation (RAG) to produce contemporary search results from paywall-protected content that augment ChatGPT’s AI-generated responses. When the suit was brought in November 2024, OpenAI had challenged the Ontario court’s jurisdiction on the basis, among others, that it had no physical presence in Canada. As pointed out by this legal blog, a court may presumptively assume jurisdiction over a dispute where one of five factors is present:
The defendant is domiciled or resident in the province.
The defendant carries on business in the province.
The tort was committed in the province.
A contract connected with the dispute was made in the province.
Property related to the asserted claims is located in the province.
The court found that OpenAI carries on business in Ontario notwithstanding its lack of a physical presence and was a party to contracts in Ontario as a result of tacitly accepting the terms of service regarding access to the media companies websites when it scraped them.
OpenAI wanted the venue of the litigation changed to the United States to take advantage of developments in US law regarding unauthorized reproduction of copyright protected content for use as AI training inputs. To date, while many cases are still ongoing, US courts have tended to support a fair use argument by AI developers allowing them to access copyrighted content without permission on the basis that the end use is “transformational”, resulting in a new product that does not compete with the original work. In Canada, the fair use doctrine does not apply and exceptions to copyright protection are either explicitly laid out in the law (e.g. for law enforcement or archival preservation purposes) or are governed by the fair dealing provisions of the Copyright Act. These require that an unauthorized use fall into one of eight categories (research, private study, education, parody, satire, criticism, review and news reporting) that is in turn subject to various court-interpreted criteria such as amount of the work copied, the purpose of the copying, market impact etc. AI developers have been lobbying for the introduction of a text and data mining (TDM) exception into Canadian copyright law, but so far this has been successfully resisted by Canada’s creative community. All this to say that it is more difficult for AI companies to avoid liability for unauthorized use of copyright protected material in Canada than in the US, thus the importance of whether the Ontario court has jurisdiction.
Back in September, on the basis of previous Canadian court rulings where courts ranging from provincial courts to the Supreme Court of Canada asserted jurisdiction over large digital US companies operating virtually in Canada, such as Google (who challenged Canadian legal authority over them on the basis of lack of a physical presence), I predicted (guessed would be a more accurate term) that the Ontario court would be loath to surrender jurisdiction simply because the company was headquartered in the US. The earlier cases were for defamation rather than copyright infringement, and my “prediction” was based more on a hunch than legal analysis, but I am satisfied that I called it right. OpenAI has no compunction about selling services and collecting revenues in Canada and presumably (I hope) pays taxes here, although it is not subject to the Digital Services Tax (DST) that the Carney government threw overboard in a vain attempt to placate Donald Trump. Recall that Trump had threatened to terminate trade talks if Canada proceeded to implement the long-planned DST, so Canada blinked. Trade talks resumed until Trump found another excuse to end the talks, in this case the anti-tariff ads on US television placed and paid for by the Ontario government to which he took offence. But there is no doubt that OpenAI does business here; it just doesn’t want to be subject to Canadian law and Canadian courts. It can’t have it both ways.
While this is a victory for Canadian sovereignty, just because the Ontario Superior Court has confirmed its jurisdiction, this doesn’t mean that once the substantive proceedings begin copyright infringement will be found. Lawyer Barry Sookman, in an analytical blog post on this topic, has noted that in determining whether the alleged copyright infringements occurred in Canada, “the court relied heavily on the Supreme Court decision in SOCAN for the proposition that the territorial jurisdiction of the CCA (Canadian Copyright Act) extended to where Canada is the country of transmission or reception.” However, “SOCAN applied the real and substantial connection test to the communication to the public right” whereas the alleged copying involved the right of reproduction.
Sookman continues;
“…that test does not apply to the reproduction right. (The Federal Court has) held that the only relevant factor is the location in which copies of a work are fixed into some material form. The locations where source copies reside or acts of copying onto servers located outside of Canada, are not infringements” (according to the cases cited).
Inside baseball information but important when it comes to determining copyright infringement. On the other hand, it seems to me that the infringement involved not just, potentially, the reproduction right (the copying) but also the communication right, because OpenAI, through Microsoft, provided RAG content to users in Canada and elsewhere purloined from behind the paywalls of the media companies. So, we will have to see. Lots of fodder for IP lawyers.
In the meantime, deep-pocketed OpenAI will appeal the jurisdictional ruling—and will likely lose again. The appeal will buy time for it to negotiate licensing deals with the complainants. This is increasingly the model in the US as AI developers, including OpenAI, are reaching licensing agreements with content owners, particularly media organizations. To date, OpenAI has signed licensing deals with the Associated Press, the Atlantic, Financial Times, News Corp, Vox Media, Business Insider, People, and Better Homes & Gardens, among others, while being sued (in addition to Toronto Star et al), by the New York Times and a collection of daily newspapers consisting of the New York Daily News, the Chicago Tribune, the Orlando Sentinel, the Sun Sentinel of Florida, San Jose Mercury News, The Denver Post, the Orange County Register and the St. Paul Pioneer Press. Even META, that arch-opponent of paying for media content–which it claims adds no value to its users– has struck a media deal with news publishers, including USA Today, People, CNN, Fox News, The Daily Caller, Washington Examiner and Le Monde. (One wonders if this will cause it to rethink its position of thumbing its nose at Canada’s Online News Act, where it “complied” with the legislation by blocking all Canadian news links).
In another content area, OpenAI and Disney have just agreed on a three-year output deal, allowing it to use Disney characters (subject to certain limitations) in its AI creations. (Meanwhile Disney is suing Google for using its characters in Google’s AI offering). Open AI is currently facing 20 lawsuits, including the Toronto Star case, and needs to resolve these legal challenges before its expected public offering next year or 2027. The spectre of impending lawsuits will inevitably lower the IPO price.
Most if not all of these lawsuits are going to end in settlements via voluntary licensing agreements, but that will only happen if OpenAI thinks the alternative (losing a major lawsuit) is a worse outcome. If it can wriggle out from the Toronto Star case by invoking some specious argument related to jurisdiction, it will. If it can’t it, will eventually open its chequebook and provide the Canadian media outlets some compensation for the valuable curated content it has hijacked. Canadian courts need to stay the course to help ensure that this happens.
