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As Journalism Withers, “Garbage” News Takes Over: An Unexpected Result of the Facebook/Instagram News Blackout in Canada

Image: Shutterstock (with AI assist: Note AI misspelling)

The sad, slow decline of professional journalism continues. The most recent manifestation of this in Canada is the announcement that the Saltwire Group, publishers of The Chronicle Herald of Halifax and a number of other daily and weekly papers in Atlantic Canada, is on the ropes with $90 million in debt. The Chronicle Herald has been around for 150 years! Post Media has made a buyout offer of $1 million (less than the cost of the average home in Vancouver). This will keep some of the papers publishing, no doubt with significant staff cutbacks and, reportedly, ending of union contracts and termination of company pension plans. But there seems to be little choice; accept the nasty medicine or expire. Post Media will most likely keep a minimal local newsroom and fill the papers with repurposed content from its flagship daily National Post. Local news will suffer. This is a story that is being replicated all over North America.

Meanwhile small, local online news outlets have been hit by Facebook’s blackout of news for Canadian readers as a result of the passage of the Online News Act, Bill C-18. In the case of New Brunswick’s River Valley Sun, according to the CBC, the free-to-readers, ad-supported, all-digital Sun depended on Facebook to reach its audience as well as to obtain local news that could be added to the online journal. The owner is quoted as saying, “…we started basically from scratch, and because Facebook was free it was wonderful”.

That is the flip side of the narrative accusing Facebook of using uncompensated news content, developed at great expense by professional journalists working for media companies, to attract and hold users’ interest thus keeping them on Meta’s sites (Facebook, Instagram) longer to be able to expose them to more ads. Not so wonderful. That is what C-18 was supposed to rectify, along the lines of the News Media Bargaining Code instituted earlier in Australia, requiring the big social media platforms (in this case Google and Meta) to make a contribution to news gathering if they used news content. Failure to do so would result in compulsory and binding arbitration. While Google ducked and weaved, it eventually agreed to put $100 million into a pot to be doled out to various news organizations by the Canadian Journalism Collective as long as it was given an exemption from the legislation, whereas Meta went to the wall and took down news links rather than contribute. The River Valley Sun is collateral damage, although it could possibly tap into the Google funding if it employs any fulltime journalists (a minimum of two is required).

The Online News Act did result in bringing some additional funding to news outlets, large and small, somewhat along the lines of Australia’s initiative through its News Media Bargaining Code (which was not actually invoked because the two platforms ended up striking content deals with most Australian media). However, it is clear that Meta has had buyer’s remorse about its Australian deals because they are busy unwinding those commitments in Oz. It remains to be seen how Australia will deal with this. There have been some suggestions that the Australian government may be looking at options to force Meta to carry news, and then subject them to the Code. Will Meta get a pass—in which case Google could rightly ask why it should comply—or will news also end up being blocked on Facebook and Instagram for Australian users as well as Canadian?

If that happens, consumers will have to find other ways to get access to news that is normally shared on the Facebook platform. Going to the actual websites of news organizations is one good way to do this. What a novel idea! However, many younger consumers won’t do this; if news is on a social media feed, they might read it, but they will not proactively search for it. Facebook also remains an important go-to source for breaking local news related to weather and climate-change events such as flooding and fires. Hosts of Facebook pages distributing information on the local impact of natural disasters have had to resort to workarounds such as posting photos of news articles on Meta or copy-pasting articles into their Facebook page. (Ironically, such actions could possibly constitute violations of copyright whereas posting a link is not). But workarounds are not going to help news outlets like the River Valley Sun.

Perhaps the journal should take a leaf out of the book of Just Bins, a waste recycling firm in Regina, SK, a garbage collection company that seems to have picked up news distribution as a sideline, benefiting from the free online exposure. It does not distribute mainstream media; it creates its own news content that it features on its website, even employing its own drone footage. Because it is not a news site, it is not blocked by Facebook. It has edgily reported on traffic accidents, problems at City Hall, homelessness, and even suicides. In fact, it was voted best online news source in a recent poll taken for the annual “Best of Regina” awards. Not that it takes its journalism role all that seriously—and that is part of the problem—since fact-checking, journalistic ethics and balanced reporting seem to have been put out with the recycling bins. Just Bins has taken the old adage of “garbage in-garbage out” to new heights. This is yet another byproduct of the Facebook ban, a further kick in the shins for reputable journalism. If the River Valley Sun could just sell pizza on the side, maybe they could slip through the Facebook net and post online as Just Bins is doing.

Just Bins is not the only quasi-news source that has managed to squeeze through the Meta news blockage. This week Howard Law’s media blog MediaPolicy.ca reports on the Meta news ban (“The leaky Meta news ban is roiling Canadian journalism”) and highlights a study conducted by researchers at McGill University on the impact of the ban a year after it went into effect. The McGill study notes that many Canadians continue to use Meta as a source of “news” despite the ban. Three-quarters of the Canadian public is apparently unaware of the ban, yet Canadian news outlets have lost 85% of their engagement on Facebook and Instagram and almost one third of local news outlets are now inactive on social media. How this apparent contradiction is possible is explained in part by workarounds such as those referred to above, but also because Meta allows sites that declare themselves to be non-news outlets to continue to post content. Mediapolicy.ca discusses the case of Narcity.com, a “chain of local news and lifestyle websites” that has recently been reinstated on Meta. Narcity was denied government tax credits as a “Qualified Canadian Journalism Organization” (QCJO) because of insufficient first-hand reporting. With this rejection in hand, it then applied to Meta to be reinstated on its platform on the basis that if it didn’t qualify for QCJO credits, it must not be a news provider under the Online News Act, C-18. It’s a clever argument, one that possibly the River Valley Sun could take advantage of.

One can argue that Canada’s attempt to require Google and Meta to enter into good faith negotiations with news providers to license content was either a valiant and imaginative attempt to come to grips with the painful decline of journalism, riding to some extent on what at the time appeared to be the successful coattails of Australia’s initiative, or a colossal miscalculation and poor timing as the platforms decided to draw a line in the sand in case media interests in the US decided to follow suit. Google and Meta will do everything possible to avoid going down that road. If sending a signal to US media interests requires them to call the bluff of the Canadian government, they will do so.

In the end, the results are mixed. Legitimate media in Canada, big and small, will get some help from Google’s contribution, although the amount Google is providing through the Canadian Journalism Collective has to be offset against pre-existing voluntary agreements that both Google and Meta had with some journalistic outlets. The Meta subsidies are now gone, and the previous Google contributions have been folded into the $100 million that Google has agreed to put on the table. Meanwhile, in Regina, Just Bins has found the garbage loophole, serving up its version of trashy journalism and news on Meta, going where bona fide journalists cannot. Sad.

Introducing “Funopoly”: (But What About Copyright?)

Photo: Author

A couple of weeks ago I wrote about Copyright in Cottage Country, and how those wet afternoons are often occupied with cards or board games, like Scrabble, Clue or Cranium, all of which (the board games, that is) are copyrighted (and trademarked). What I neglected to mention is that, in addition to these well-known pastimes, during our recent stay at the cottage we also played several games of “Funopoly”. Now, I realize you may not have heard of this game, despite its uncanny resemblance to another much more famous, commercially available game that has been around for decades. I was introduced to it when I noticed a plain cardboard box lying on the dining table. “What’s that?”, I asked. “Oh, it’s a game I brought up to play at the cottage”, said my very creative 11 year old granddaughter, Stella. “I made it”.

Although Funopoly has a number of similarities with its famous counterpart, including the concept of buying property and paying “rent” if you land on a square, it is a different game. There are no houses or hotels to buy. You won’t find any Park Places or Boardwalks. Rather you might land on Shoppers’ Drug Mart, or Skyzone Trampolines or Canada’s Wonderland, all places in Toronto. The most expensive property on the Board, valued at something like $50, is the home of prominent rapper Drake, (actually valued at around $100 million) . But even though there are Canadian, British, Australian (and many other) geographically modified editions of Monopoly, this is not simply a Toronto version of that game. (The original US version was based on street names from Atlantic City, NJ. The British edition, also dating to the 1930s, used London street names. A Canadian edition debuted in the 1970s using street names drawn from cities across the country, from St. John’s, Nfld to Victoria, BC).

Funopoly doesn’t have street names. Another difference is the money, handmade and coloured $1 (green), $5 (blue) and $10 (purple) notes. There is a limited supply of each, and there seems to be equal numbers of each denomination. As in Monopoly, you get a reward (in this case, $1) for passing Go. But the properties are relatively expensive in proportion to the amount of money you have in hand. As a result, the first time we played I faced early bankruptcy as I had the misfortune to play last and landed on a couple of properties that had already been purchased. The “rent” was crushing and the paltry replenishment when my token (a coloured Qtip) passed Go didn’t cut it. Stella modified the game the next time we played, with players being rewarded with $10 when they passed Go. In this case, the bank soon went bankrupt as all the money was in the hands of the players. Funopoly is clearly a work in progress and is still being fine-tuned–but is a lot of fun. There are also no railroads or utilities, but there is a casino, a club and an ice cream truck. You seem to end up in jail on a regular basis, but get out just as quickly, something like the “catch and release” policies followed by Canadian courts for frequent offenders. Don’t look for Funopoly on Amazon. There is only one extant version in the whole wide world, and it is definitely not for sale. And I have had the privilege of playing it (and losing).

Knowing that I write a copyright blog, Stella asked if she could copyright Funopoly. I explained to her that if it is an original work in a concrete form (i.e. fixation), then copyright is automatically conferred. However, if she wanted a nice certificate to prove that it was copyrighted, that could be arranged. For $50, I could get her a vellum-like certificate from the Canadian Intellectual Property Office (CIPO) proclaiming her copyright in Funopoly. She would not even have to send in a photo of the game, because CIPO does not want or keep any copies of the works they are registering. (Many years ago, the Copyright Office required deposit of a copy of the work to be registered, but no longer). Nor does CIPO verify whether the work conflicts with another registered work. All they do is register a description of the work—and send you a nice certificate of copyright, as I demonstrated last year when I registered some AI created artwork and poetry, (Canadian Copyright Registration for my 100 Percent AI-Generated Work). Maybe we will register Funopoly. The certificate would be a nice birthday present for her.

Canadian copyright registration certificate or not, we must still ask the question as to whether this is an original work. Does it infringe on the copyrights or other forms of intellectual property (IP) protection of others? It turns out there has been a long history of IP disputes over Monopoly. The game was first published under the Monopoly name by Parker Bros in 1935 but there were earlier versions variously called “The Landlord’s Game”, “Finance”, or “Auction”. The game’s invention has been credited to Charles Darrow but there is strong evidence that rather than inventing the game, his genius was in marketing it, the original concept being created 30 years earlier by Lizzie Magie who had patented The Landlord’s Game in 1903. While the design and artwork (tokens, the board itself, other unique elements such as game-specific cards) around a board game can be protected by copyright, the actual rules of the game can be patented. And of course, the name (such as Monopoly or Scrabble) can be trademarked.

Each of these forms of IP protection has different characteristics. A patent has to be examined and accepted, and there is a limited period of protection, about two decades. Copyright is also time-limited, albeit of much longer duration. Trademark protection can be continuous, providing the mark stays in use and is renewed as required, normally every ten years. There was a notorious dispute in the 1980s over a game called “Anti-Monopoly”, that involved challenges to the trademark. In the end, Parker Bros. retained its trademark on Monopoly and acquired the trademark Anti-Monopoly, then proceeded to license it to the creator of the Anti-Monopoly game.

However, while many of the aspects of a board game can be protected by IP laws, some cannot. This is where the idea/expression dichotomy comes into play, meaning you cannot copyright an idea, only the expression of an idea. Thus, anyone can make a game that involves the buying and selling of properties and sending a person to jail for a variety of infractions. Anyone can make a game that involves moving a token around a board according to the role of a die or dice. But the rules of a game and its artwork and design can certainly be protected by both patent and copyright, and if a game that was sold commercially was substantially similar to a copyrighted work, with only a few details changed, that could be a factor in finding infringement.

Substantial similarity is another one of those complicated copyright issues. Simply put, you cannot simply change a few words in a published work, or presumably just a few features in a copyrighted game, and claim it is a new work. But substantial similarity is an elastic concept; even different judicial circuits in the US interpret it differently, according to this article from lawfirm DLA Piper. For my part, I am convinced that Funopoly is substantially different from Monopoly. What other game in the world uses a coloured Qtip as a token?

Nonetheless, as I am always quick to point out, I am not a lawyer and any interpretation of copyright laws that you find in this blog does not constitute legal advice. Instead, I try to go to reputable sources to buttress my opinions. I can find no better source than the American Bar Association, which outlined all you need to know when it comes to IP and board games. Will Hasbro, (now the owner of Monopoly) come after Stella to shut down Funopoly? Somehow, I doubt it. In fact, according to the ABA there are several “opoly” named games registered with the USPTO, a precedent that should help. In the meantime, we can pursue a Canadian copyright registration and obtain a pretty but not very useful certificate to hang on the wall.

Funopoly is not going to make Stella’s fortune. The real inventor of the property game concept, Lizzie Magie, got only $500 and no royalties in the mid-1930s when Parker Bros bought up rights to related games from her to protect its monopoly on Monopoly. Stella for her part won’t earn a cent from Funopoly, but that is not the point. Playing Funopoly with her on a rainy day at the cottage—even though I went bankrupt–was a priceless experience, and was the true reward.

Copyright and Education in Canada: Have We Learned Nothing in the Past Two Centuries? (From the “Encouragement of Learning” to the “Great Education Free Ride”)

Image: Shutterstock (AI Assisted)

Last month I wrote about the 200 year history of copyright in Canada, (Two Hundred Years of Copyright History in Canada: What a Journey!), drawing on a recent book by copyright scholar Dr. Myra Tawfik, “For the Encouragement of Learning: The Origins of Canadian Copyright Law”. That work outlined the genesis of Canadian copyright law in Lower Canada in the 1820s and 1830s, carrying through into the 1840 pre-Confederation period in the united Province of Canada (Canada East and Canada West). As Professor Tawfik pointed out, the motivation for the first copyright laws in what eventually become Canada was to incentivize the production of localized school texts. Appropriate books for local schools were hard to come by; books produced in Britain or France were expensive and did not always meet local needs in terms of content. Books from the US, while obviously not able to address the needs of Canada’s French speaking population, were also considered suspect in the English-speaking colonies because of their “republican” content.

Various local authors petitioned the assemblies of Lower and Upper Canada for financial support to produce books of local interest, often school texts but also sometimes maps, geographies and natural histories. Support was often provided, either in the form of an advance payment (which carried the obvious risk of funding a work that ultimately was not published), or else a commitment to purchase a set number of copies once the work was in print. The problem of the lack of suitable pedagogic materials was chronic, and the Assemblies got tired of being importuned. The solution, first bruited in the 1820s, but then implemented in the 1830s, was to introduce a copyright law to provide authors with a revenue stream from royalties to encourage production of more local content. In terms of achieving its objectives, this legislation was generally successful, despite constant interference from Britain which wanted to standardize copyright laws throughout the Empire and would not recognize Canadian copyrights in Britain unless the works were registered, and copies deposited, in London. Nonetheless, Canadian copyright laws allowed Canadian authors and publishers to establish themselves and begin a long tradition of Canadian educational publishing.

Fast forward two hundred years to the present and the disconnect between the goals of those early legislators and educators, and the situation today, is stark. I find it highly ironic that while the impetus for the first Canadian copyright laws came from a desire to promote learning and production of educational materials, today most Canadian educational institutions are taking a massive free ride when it comes to paying for teaching materials. Instead, they are using every pretext possible to avoid paying collective licence fees to the Canadian copyright collective for authors and publishers, Access Copyright, for their use (reproduction) of printed or digitized educational materials, using the “education” fair dealing exception introduced in 2012 as the excuse. Two hundred years later, we have gone backwards with respect to meeting the social objectives of copyright law.

I have written a number of times (most recently, here, but also here and here) on the fundamental unfairness of the way in which educational fair dealing has been interpreted by the educational sector in Canada, spurred on by university librarians, and abetted by the courts, resulting in upsetting the fundamental copyright balance between creators and users in this segment of the market. In the process they have turned their back on Canada’s copyright history. The negative impact on the educational publishing sector in Canada has been well documented, with several publishers giving up on the K-12 or post-secondary markets in Canada and many authors facing a drastic loss of income.

Universities and librarians continue to protest when this unfairness is pointed out, advancing a variety of arguments to justify their free ride on the work of others. One good example of the kind of self-justification put forward is an article published last summer in “The Conversation” by a couple of prominent university librarians. Among other things, they argue that the market has changed, moving largely to digital resources and digital access, no longer requiring any copying. (They seem to equate “copying” with photocopying although lots of digital reproduction takes place. This has the same impact on the market as the former practice of photocopying pages of textbooks). They point out that universities spend considerable sums on obtaining access to digital content directly from publishers. These facts are true, but they do not represent the full picture.

While many works are accessed by students from library sources directly through links, considerable copying and sharing (which a reprographic licence would permit) still takes place. After all, if there was no reproduction, the educational institutions would not have to invoke fair dealing to justify the unlicensed copying and sharing that is taking place. In testimony before the House of Commons committee reviewing the Copyright Act, one university librarian estimated that over 15% of access to course materials by students at their institution was based on fair dealing (as unilaterally interpreted by that university). Yet we have no proof that this copying complies with fair dealing guidelines, or indeed that the fair dealing guidelines published by the universities are consistent with fair dealing jurisprudence. In the long drawn-out case between Access Copyright and York University over educational copying and whether the tariffs (user fee per student) established by the Copyright Board of Canada were mandatory if universities used materials represented by the copyright collective (the courts ultimately determined that the tariffs were optional, not mandatory), the issue of whether York’s fair dealing guidelines were “fair” was never determined. The initial Federal Court ruling found that they were, in fact, not fair, and on appeal the courts declined to issue a statement requested by York that would have blessed its interpretation and application of fair dealing.

Because of the uncertainty this unilateral interpretation of fair dealing has engendered, universities have had to strengthen their oversight of copyright to ensure they stay out of trouble. Trying to make a virtue of a necessity, they have used this additional investment in library staff to attempt to demonstrate their respect for copyright. Among other things, they have had to improve their communications to make students aware of copyright and explain what they can and cannot do with copyrighted content. It is true that if you go to any university website, such as this one from Simon Fraser as an example, you will find an extensive discussion of the “do”s and “don’t”s of copyright. But is there any enforcement? Who knows? What is clear is that if these additional resources had been invested in acquiring a collective licence instead of unnecessarily bulking up on staff, this would have resulted in a better outcome for all concerned and would have provided the degree of protection needed. (“Throwing Good Money After Bad: How Canadian Universities Wasted Millions by not Acquiring a Copyright Licence”).

Many, if not most, of the digital licences obtained directly from publishers provide for access to works (usually limited to a certain number of users) but do not contain reprographic (reproduction/copying) rights. Educators have argued that the previous Access Copyright licence that covered photocopying of printed materials is no longer relevant in the digital age. While there may be truth to this in respect of printed materials, which are used less, Access’s licences also now cover digital copies. A copy is a copy, and an unauthorized copy is an unauthorized copy, whether hardcopy or digital.

Then there is the double-dipping argument that an Access Copyright digital reprographic licence would duplicate a similar licence obtained directly from a publisher, and so users would be paying twice for the same material. This is another red herring. Access Copyright represents most publishers. They belong to Access for sound business reasons. It is to receive compensation for unlicenced copying of the works they represent. If a situation arose where there was potential double-counting, Access Copyright has the ability to adjust its licence to accommodate such a situation through negotiations with the education sector, provided educational institutions were willing to demonstrate which materials were already covered by a direct licence from a publisher.

Finally, and this is the most galling assertion of all, apologists for the educational free ride (as in the article from The Conversation cited above), argue that the nature of university funding has changed. Students are now facing a heavier burden, and universities and colleges are challenged when it comes to funding. Both are true and both are irrelevant in terms of justifying the broad use of educational fair dealing to deprive authors of payment for reproduction of their content. Rather than pass on any savings to students, post-secondary institutions have found a plethora of ways to squeeze a bit more from them, as best exemplified by current stories regarding heavy dependence on–one might even say exploitation of–international students by many institutions. Do funding challenges mean that caterers for cafeterias, or cleaners in student dormitories, or any of the other suppliers to a university should suddenly provide for free what was previously paid for? Why should publishers and authors carry the burden for the funding challenges faced by many of our post-secondary institutions? We are talking about a few dollars (a couple of cups of coffee) per student per year.

Since there is no denying the hit the educational publishing industry and authors have taken, the educational sector has been quick to point to the Canada Book Fund and the Public Lending Right as alternatives. In other words, someone else should pay—but certainly not the users of the content! Whatever happened to the user-pay principle?

What is the solution? It is not to undermine fair dealing, or to remove education as a specified fair dealing purpose with respect to use of materials by students themselves. It is to put reasonable limits on its use by educational institutions who have been enjoying a decade long free ride. The Standing Committee on Canadian Heritage in its review of the Copyright Act proposed a reasonable solution. It recommended that,

“The Government of Canada amend the (Copyright) Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.”

This would preserve education as a fair dealing purpose but, with respect to educational institutions, would mean that it would not apply in situation where a commercially available licensed alternative is available. This would include both digital reprographic licences obtained directly from some publishers as well as a non-duplicative collective licence from Access Copyright for works in its repertoire. This is similar to what is done in the UK. Such an amendment would restore the education fair dealing balance that has become so badly skewed as a result of the 2012 Copyright Act amendments, and the subsequent broad interpretation thereof by the education sector, an imbalance that was surely not foreseen nor planned by legislators at the time.

Today’s Parliamentarians can make common cause with their predecessors of some two centuries ago by recognizing the symbiotic relationship between copyright, authorship and the production of quality educational materials. They need to act, and act soon. To date, despite assurances by the current government that it would take measures to ensure a sustainable educational publishing industry, including fair remuneration for creators and rights-holders, nothing has been done.

Canada’s first copyright laws were introduced almost two hundred years ago to encourage learning. That should still constitute a prime policy objective for copyright legislation; to incentivize the production of quality content for the education of today’s scholars. It is said that those who fail to learn from history are doomed to repeat it. In this case we seem to be forgetting the progress that has been made in building a vibrant and (until relatively recently) viable Canadian publishing industry and are turning our back on two centuries of copyright development for the sake of giving the education sector a short-sighted (and hopefully short-term) free ride.

Copyright in Cottage Country

Photo (c) author, 2023

For anyone who may have noticed (hopefully you did), I have not posted a blog for a couple of weeks. I am invoking that blanket summertime excuse, “I’ve been up at the cottage”. But I have not completely divorced myself from thinking about copyright issues, since they seem to pop up everywhere, even in cottage country.

For non “Central Canadians”, the term “cottage” may be a bit of mystery or even a misnomer. If you are thinking Anne Hathaway’s Tudor cottage covered with climbing roses, you are way off base. In fact, the term doesn’t seem to be used much outside of Ontario, where the term “cottage country” means any place on any lake north of Toronto. (There are a lot of them; over 250,000 lakes in Ontario). In the west, they are referred to as “cabins”, in Quebec as “chalets”—and in Russia, “dachas”, or so I am told. They can be rustic, water-access by canoe only simple abodes with outdoor plumbing or they can be multi-million homes on places like Lakes Rousseau or Joseph in the Muskokas, with every kind of cottage toy (ski boat, sea-doos, inflatable floating bouncy castle etc) imaginable. For those fortunate enough to own a cottage—and it is not a small number—many have been in the family for several generations (and will now likely attract a higher capital gains tax when they are passed on to the children, given recent budget changes. So much for the new rules affecting only 0.13 percent of Canadians). But cottage life is also embraced by new Canadians and some are even rented out (God forbid) on platforms like AirBNB.

In my case, our cottage is located in the Kawartha Highlands, Canadian Shield country between the towns of Bancroft and Haliburton. We can drive there on washboard dirt roads. There is hydro (most of the time) but very limited cell coverage. If you walk down the road, and stand on a particular rock in the evening, it usually works. We used to have a landline and dial-up Wifi but it was so slow we gave up, and then the phone company cancelled the “cottage line suspension service” we used to use in the winter. Because, you see, like many cottages, we close up for “the winter” (which generally means between Canadian Thanksgiving in early October and Victoria Day weekend in late May). The power is shut off, the pipes drained, the dock lifted and everything is closed up to await the minus 30C temperatures that sometimes arrive in Jan-Feb.

So what does this have to with ©? Well, you can’t escape it, even up here at the lake. Whether it is the $4.99 DVDs we buy at the local supermarket for those inevitable rainy days or the ubiquitous copyrighted board games (Scrabble, Clue, Cranium, you name it) that get trotted out, the © symbol is everywhere. Cottage country must be the last stand of the DVD, and a lot of low grade Hollywood movies and series that you have never heard of seem to arrive on the shelves of the local Foodland for bored cottagers. But there is no cable and no streaming, so if you want to watch something in the evening, get out the old DVDs. At our place, Bugs Bunny and Tom and Jerry cartoons, dating back to the 1950s and beyond, are still popular as a new generation discovers them, but beware of piracy. One young visitor, having seen the scary FBI warning at the beginning of a Bugs DVD, asked what piracy was because, as she said, I don’t want to go to jail for 5 years or pay a fine of $250,000.

And then there are the card games, many of them, like cribbage, having been invented a couple of centuries ago. But the Bicycle “Official Rules of Card Games”, first copyrighted in 1887 (our edition is a relatively recent 2006) is indispensable. While the rules of a game (i.e. the mechanics) cannot be protected by copyright–although artwork and design unique to a specific game could be–Bicycle’s edition of the rules is copyrighted because of its editorial content, organization, etc.

The local paper, the Bancroft Times (founded 1894) has its own copyrighted copy. You won’t find Canadian or Associated Press articles here. You will find a blow-by-blow description of the local Council meeting where Council wrestled with the thorny problem of the arena’s deficit and whether to impose user fees on residents of outlying municipalities that were refusing to pay their share of operating expenses. This seems only fair, except the problem arises from the disincentive caused by user fees. If it stops the kids from outside town from using the arena, there won’t be enough players for the hockey league. Thorny local issues. This made me reflect on some of the big journalism issues of the day, such as the OpenAI v New York Times lawsuit (that I wrote about here) concerning OpenAI’s unlicensed use of NYT content to train its Artificial Intelligence (AI) algorithm. This made me wonder if the Times’ (the Bancroft Times, that is) coverage of Bancroft Town Council’s meeting would be scooped up by OpenAI’s AI machine. We hear that AI has an insatiable appetite for data, in fact that within a year or two there may be such a shortage of data for AI training that AI may have to produce its own synthetic data. If there is a data drought, no doubt content in the Bancroft Times will be as important to OpenAI as the content it has purloined from the New York Times.

Another manifestation of AI is the use of copyrighted artwork and photos to produce new AI-generated content. A couple of years ago, while gazing at the lake from the dock, I read about DALL E-2, one of the earlier AI programs that could produce images on demand. I created one using the scenery I was enjoying, titled “Autumn foliage, with Muskoka Chairs in the style of Monet”, to illustrate my blog on “AI and Computer-Generated Art: Its Impact on Artists and Copyright”.

Whether it is broadcasts from “The Moose” (Moose FM Radio, officially known as CHMS-FM), content from the local newspaper, the “Think Turtle Conservation Initiative” that sells signs, decals, and fridge magnets to raise awareness of turtles crossing the road, or information from the local lake association or Fish and Game Club, the integrity of content is protected everywhere by copyright—even at the cottage!

Two Hundred Years of Copyright History in Canada: What a Journey!

Image: Shutterstock (with AI assist)

As we approach July 1, Canada Day, Canada’s 157^th anniversary, it is worth reflecting on the history that shaped this wonderful if imperfect country of now 41 million. While not top of mind for everyone, part of that history relates to copyright! This year, 2024, marks a couple of milestones in the history of copyright in Canada. It is 200 years since the first copyright bill was introduced into the Assembly of Lower Canada and it is 100 years since the entry into force of the legislation that established Canadian copyright sovereignty, the Copyright Act of 1921. During those two centuries, Canada’s copyright history has paralleled its economic and political development, moving from struggling to assert its independence from Britain to learning to live beside and accommodate the economic colossus south of the border. Internationally Canada moved from largely being, or wanting to be, a copyright outlier to a nation that has fully embraced the international rules-based order of copyright (although there are still some areas that could be strengthened).

As noted by Professor Myra Tawfik in her new book, “For the Encouragement of Learning”[i], on February 9, 1824, a “Bill for the Encouragement of Learning by Securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies during the Times therein mentioned”, was introduced into the Assembly of Lower Canada (now Québec) by François Blanchet, an elected member of the Assembly. This wording mirrored that of the Statute of Anne, the first piece of British copyright legislation protecting authors, adopted in 1710, and the US Copyright Act of 1790. Blanchet’s Bill died on the order paper but subsequently, in 1832, the first piece of copyright legislation in what is now Canada was passed by the Lower Canada Assembly.

The second milestone was the proclamation, on January 1, 1924, of the Copyright Act of 1921 which, with minor amendments, established the copyright framework in Canada for decades until revised in the late 1980s. Although copyright was one of the powers granted to the new Dominion of Canada in 1867, (and indeed Canada passed, or attempted to pass, copyright legislation on several occasions), if that legislation conflicted with British interests and imperial copyright law, it was blocked by the British government. The Copyright Act of 1921 resolved those conflicts. It also brought Canada fully into compliance with the terms of the 1886 Berne Convention, the first international treaty on copyright, which for many years Canada had agitated to leave, having acceded to Berne as part of the British Empire when the Convention was established. (After a perfunctory consultation, Canadian Prime Minister Sir John A. Macdonald had sent a telegram to London agreeing). In 1928, partly as an assertion of sovereignty, Canada acceded to Berne in its own right but subsequently had doubts about having joined (in part because the United States was not a member). Today, Canada has fully embraced the international copyright system through accession to most international copyright treaties and full acceptance of the terms of Berne incorporated into the TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights), part of the World Trade Organization (WTO).

While the 1710 Statute of Anne provided, for the first time, protection to the authors of works, rather than printers, (for an initial period of 14 years, which could be extended for an additional 14 years), it did not apply to any British territories outside Britain, notably not to the North American colonies prior to 1776. Although amendments to the Statute in 1814 provided protection to British authors throughout the Empire, there was no protection for Canadian or other colonial authors unless they arranged to have their works first published in Britain and registered at Stationer’s Hall in London. Not surprisingly, very few did. The Lower Canada Copyright Act of 1832 established the first copyright in Canada for Canadian authors, although it only applied in what is now Quebec. However, after the union of Upper and Lower Canada in 1840 to form the Province of Canada, the 1841 Provincial Copyright Act, modelled on Lower Canada’s 1832 law, applied to both Canada East (Quebec) and Canada West (Ontario). Nova Scotia enacted its own copyright legislation in 1839.

Prof. Tawfik points out that much of the impetus for the introduction of early copyright legislation in British North America (BNA) came from a desire to encourage the publication of Canadian school texts. Given the dearth of local books at the time, various authors of local histories, maps and schoolbooks regularly approached the legislatures of the BNA colonies seeking financial support to print their works, either a subsidy to be provided in advance or a commitment to buy a certain number of the works at a predetermined price. While in some cases, subsidies were granted, a solution to the problem was to introduce a copyright law that would provide a means for authors to be self-sustaining through royalties. As Professor Tawfik notes, government in the colonies “…adopted the position that copyright relieved it of its responsibility to subsidize the printing of books” (p. 148).

Fair dealing was first introduced in Canada in the 1921 Copyright Act. The Act mimicked the 1911 Imperial Copyright Act which had, for the first time, enshrined fair dealing exceptions in British law, providing greater clarity than the previous common law approach. Fair dealing encompassed several exceptions to copyright protection, allowing unlicensed use of copyrighted works for specified purposes. At the time, these purposes were “research, private study, criticism, review or newspaper summary”. However, even if the dealing, or use, fell within these specified categories, other factors were also considered to determine whether the dealing was fair (e.g. amount or nature of the copying). That is essentially the position that prevails in Canada today, except that the list of specified fair dealing exceptions has been broadened to include, in addition to the original categories, parody, satire, and education, while the term “newspaper summary” has been broadened to “news reporting.”

The 1921 Act also brought Canada into conformity with Berne, a key concern of Britain given Canada’s reluctance to comply during the early decades of the Convention. The issue lay with printing rather than authorship and related in large part to the situation in the United States, where the printing lobby held sway in Congress. Initially the US refused to recognize the copyright of non-US residents and US printers freely copied (one might say “pirated”) British and other works. A couple of years ago, I discussed how Canada got caught in the crossfire on this issue. (International Book Piracy: How Canada Got Caught in the 19th Century British-US Copyright Wars). Joining Berne would have required the United States to recognize non-US copyrights (in return for US copyrights being recognized in other Berne countries), so it stayed out. In 1891 Congress passed the Chace Act whereby the US would recognize the copyrights of non-US authors provided that the work was printed in the US. In other words, the US would only recognize foreign copyrights if the foreign works were published there. Canadian printers wanted something similar. The Canadian Parliament tried to pass legislation containing compulsory printing requirements as a condition for allowing foreign and British works to enjoy copyright protection in Canada, only to have these laws blocked by London because of inconsistency with Berne and potential harm to British publishing interests.

While Canada was never able to successfully institute a manufacturing clause linked to copyright as the US did, nevertheless like the US it required registration for a copyright to be valid and limited the term of protection to a fixed number of years after publication. In 1908, the Berne Convention countries abolished registration as a requirement (copyright was established automatically with no formalities upon creation as long as other criteria like originality, nationality, fixation etc. were met), while it also established the minimum term of protection to be the life of the author plus 50 years. Canada was worried that its term of protection would be longer than in the US (giving American authors better protection in Canada than vice versa) and was also wary about abolishing registration. Yet Britain wanted to ratify the 1908 revision and since Canada had entered Berne as part of the British Empire, it needed to get Canada onside to do it.

This finally happened with the 1921 Act, although Canada maintained a compulsory licence provision applicable to non-Berne authors for many years. This was aimed at the US, although it was never used. It was designed as leverage to gain an exemption from the US manufacturing clause for Canadian authors, a measure that was eventually successful. Canada also retained a voluntary registration system. As mentioned above, as part of its goal to assert sovereignty through independent treaty-making, Canada joined the Berne Union as a separate entity in 1928.

Despite full accession, Canada had second thoughts about joining Berne for several decades thereafter, largely because of concerns about printing and a view that copyright generated more income for foreign authors in Canada than for Canadian authors abroad. In the 1960s, Canadian officials viewed the country’s international copyright obligations solely through an economic “balance of trade” lens, considering the amount of royalties paid to foreign authors for distribution of their works in Canada as an economic drain, with little offsetting benefit, ignoring social and cultural objectives entirely.[ii] At one point, Canadian officials even took the risible and unsustainable position that Canada was a “developing country” from a copyright perspective and was therefore entitled to weaken its level of copyright protection. The fact that at the time the UN definition of a developing country was limited to those with a per capita income of less than US$300 per year, and that Canada had the third highest per capita income in the world, did not help Canada’s case. This narrow, utilitarian point of view still has advocates as we saw during relatively recent discussions regarding whether Canada should extend its term of copyright protection to match that of the US, EU, UK, etc., with some commentators claiming (with no credible evidence, as I pointed out here) that extension would cost Canada between $100 million and $450 million annually. Total nonsense.

The problem of net copyright revenue outflow back in the 1950s and 1960s lay not with copyright of course, but with the fact that Canadian authors were not particularly prolific or internationally known at the time. It seems not to have occurred to Canadian officials that a strong reciprocal copyright regime might have fostered the growth of Canadian writing and provided a needed economic incentive. Happily, the explosion of Canadian literature has ended most of the parochialism. In particular, the cultural vibrancy of Quebec creators and their success internationally eventually helped push the Canadian government toward a more pro-creator position by the mid-1980s.

Subsequently, copyright and intellectual property (IP) generally become intertwined with trade policy issues. The Uruguay Round leading to the establishment of the WTO was underway, and IP, including copyright, was one of the issues on the table in the negotiations. The Canada-US Free Trade Agreement of 1989 committed both parties to cooperate in the Uruguay Round and in other international forums to improve the protection of intellectual property. Copyright became “coinage” in the negotiations, to be bundled with other issues (like dairy quotas, automotive rules of origin, or investment rules) as a means to achieve overall negotiating objectives. In 1989, the US finally acceded to the Berne Convention, further harmonizing the international rules governing copyright, and all WTO members incorporated its principal provisions through TRIPS when the WTO was established in 1995. By this time, the World Intellectual Property Organization (WIPO) had been established (in 1970) to manage not only the Berne Convention, but other international treaties related to intellectual property, such as those dealing with patents and trademarks. As Canada has embraced trade liberalization and has meticulously adhered to the rules-based order in international trade out of its own self-interest, it has come to recognize and accept the benefits of a standardized international copyright framework and the benefit this brings in terms of cultural expression and cultural industries.

Copyright in Canada and internationally continues to evolve. The current challenge is AI, and the rules by which AI developers will be able to access copyrighted content to train their algorithms. Will there be a text and data mining (TDM) exception in Canada, similar to the fair dealing exceptions? If so, how broad, or how narrow, should that exception be in order to spur innovation without harming creators and cultural industries? Will there be further international rules to govern how AI and copyright can co-exist, and to what extent will Canada be a player in setting these rules?

Canada evolved from colony to nation as its copyright framework developed over the past 200 years. In the early days, Canada agitated for more control over copyright policy. When it achieved this, it played somewhat of a spoiler role, with one eye always on the US and its impact on Canada and the Canadian market. As Canada matured, it became more committed to playing by and contributing to the international consensus on copyright, although we are still an outlier in some respects, given the situation with educational fair dealing that has decimated the educational publishing industry and the incomes of many authors in Canada. This is a situation not faced in any other country—and needs to be fixed. Although we have come a long way, we still have some lessons to learn. It’s been quite a journey, and the journey continues.

[i] “For the Encouragement of Learning: The Origins of Canadian Copyright Law”, (University of Toronto Press, 2023), p. 48

[ii] Sara Bannerman, in her book “The Struggle for Canadian Copyright”, (UBC Press, 2013) quotes the Secretary of State for External Affairs, in a Memorandum to Cabinet in 1967. Considering the wisdom of Canada staying in the Berne Union, he wrote, “An important consideration…is the fact that about 90 percent of the total cost (about $8 million) of copyright to the public in Canada is accounted for by the protection given foreign works. In turn compensation to Canadian authors by way of payments from overseas to Canada is minimal”. p. 160

The CRTC and Online Streaming: Money Now; Details Later

Photo: Author

The first shoe has dropped for foreign online music and video streamers in Canada, at least those generating more than $25 million a year in “contribution revenues” from the Canadian market. On June 4, the Canadian Radio-television and Telecommunications Commission (CRTC) announced it will be imposing “base contributions” of 5 percent of annual Canadian contribution revenues on streamers such as Netflix, Spotify, Amazon Prime, Disney + etc. as part of the implementation of the Online Streaming Act passed last year. (Canadian streamers associated with a Canadian broadcast entity, i.e. Crave, are exempt). The Act brings online streaming services under the regulatory purview of the broadcast regulator. The “base contributions” are to begin in the 2024-25 broadcast year, beginning September 1 of this year, and are expected to generate in the range of CAD$200 million annually. According to the Minister for Canadian Heritage, Pascale St. Onge, the levy is about “fairness in the system” and will be good for the streamers because it will create more content that will “most likely” go back on their platforms. So why are they not happy? (And they are not).

They are not happy because this is just the first shoe to drop, and while they now know the cost of this shoe, they don’t know what the other shoes are going to cost, what exactly those shoes will look like, or indeed whether they will be allowed to try them on. Because, you see, the rules about who can access the Funds that their money will be going into, and on what terms, have not yet been determined. Key decisions regarding the definition of Canadian content and who can own or control Canadian content (through holding the copyright) are a couple of years down the road. With those decisions could come other requirements, such as allocating a percentage of revenues to production of local content on top of the current “base contribution” to existing Funds, discoverability obligations, and possibly others.

With regard to the top-up of existing funding mechanisms, just about anybody who is anyone in film, TV or music will be lining up to get a share of the $200 million pie. The list includes (and I am not kidding) no less than 11 identified recipients named by the CRTC; the Canadian Media Fund, the Independent Local News Fund, the Black Screen Office Fund, Certified Independent Production Funds supporting OLMC (Official Language Minority Communities), the Indigenous Screen Office Fund, FACTOR and Musicaction, a new temporary fund supporting local news production by commercial radio stations outside designated market, the Canadian Starmaker Fund and Fonds RadioStar, the Community Radio Fund of Canada, direct expenditures targeting the development of Canadian and Indigenous content and, last (and least, in terms of percentage of the funding from audio online undertakings), the Indigenous Music Office. Is anyone missing? What about the Punjabi Weather Network or the Lawn Bowling Broadcast Fund? This is micro-management gone wild.

The 5% contribution funding is divided up into various slivers, some larger than others, by the Solomons at the CRTC. As for the Minister’s optimistic belief that those making the contribution will “most likely” benefit from the content produced, I struggle to see how Netflix or Disney+ will get much out of the Independent Local News Fund (which is currently funded by Canadian cable platforms) or Francophone productions in British Columbia or Alberta. The argument, no doubt, is that this is the price for participating in the Canadian broadcast ecosystem, that now includes online streaming undertakings. Music streamers, on the other hand, will probably benefit from the development of more Canadian talent.

As a consumer of music and audio-visual content, I am also a participant in the broadcast ecosystem and already pay in various ways, through income and sales taxes, and streaming and cable (yes, I am still one of them) subscription fees. I have a hunch I am about to pay more. For several years now the AV streaming services have been on a spending spree in an attempt to grab market share. Profitability came second, but that is rapidly changing as the market matures. And that means subscription fees are going up. (Netflix is killing off the basic subscription I have had for a number of years and given me the choice of a slight price reduction if I put up with ads, or else face a roughly 50% increase in monthly subscription fees. I am still dithering). And this was before the CRTC dropped its latest bombshell. If the CTRC is going to take 5% or more of revenues, simple math tells you there are only a couple of ways to make that up, cut costs or raise prices. “Costs of doing business” inevitably get recovered from customers. If the price of supporting a viable content industry in Canada was limited to a 5% increase in my monthly subscriptions, I would gladly pay but I doubt that my contribution will be limited to 5%.

Ironically, the issue of whether the CRTC should regulate streamers was postponed for years in Canada because of aversion of what was referred to at the time as the “Netflix tax”. No-one knew for sure what that meant; it could have meant imposing sales taxes on a Netflix subscription (which has since been done), or it could have meant a levy on Netflix (which was the first streaming service to enter Canada) to fund Canadian content. But while people weren’t clear on what a Netflix tax was, they knew they didn’t like it. It became a symbol of piling yet one more nuisance fee onto consumers (“carbon tax” anyone”?) and while a small fee on a streaming subscription was unlikely to send anyone to the poor house, politicians from all parties outdid themselves by swearing to avoid any form of Netflix or internet tax.

Serendipitously, I have just finished reading Howard Law’s new book, “Canada vs California-How Ottawa Took on Netflix and the Streaming Giants”, a fascinating deep dive on Bill C-11, which became the Online Streaming Act, and its unsuccessful predecessor Bill C-10. (For those who don’t know, Howard also publishes a weekly blog, MediaPolicy.ca, another essential read for anyone interested in the Canadian media scene). Law devotes an early chapter to “No Netflix Tax 1999-2019” and then goes on to take the reader through the painful teething pains of Bills C-10 and C-11. The term “Netflix tax” has fallen out of use these days but the end result of the imposition of the CRTC “base contribution” on foreign streamers is really no different from an indirect tax.

Alternatively, if the streamers do not fund this new “base contribution” by raising prices to consumers, they will likely compensate for it by spending less elsewhere, i.e. on Canadian production, the very objective for imposing the contribution in the first place. According to MPA-Canada, in 2021-22 “foreign investment in production” (FIIP, a metric for international participation in the film and television production industry in Canada) contributed $875 million to production of Canadian content, about 13% of total financing for Canadian-owned content productions. (This is in addition to the much larger Foreign Location Shooting spend on US productions made in Canada). By comparison, the Canadian Media Fund contributed only 7% of total financing for Canadian productions. The foreign contribution to Canadian production was not far off the $1.09 billion spent by Canadian broadcasters on in-house production. A similar scenario exists in Australia, where the government is also exploring various options to require foreign streaming services to fund local production. Yet the streamers are currently the leading source of production funding for Australian adult drama. In Australia, streaming services invest more in this drama than public, commercial and subscription broadcasters combined, despite having no legal obligation to do so.

What does the US government think of the CRTC’s announcement? That will depend on how hard the foreign streamers push the US Administration to intervene, and right now it is not clear what they will do. Part of the issue is those other dangling shoes. The outcome might not be all that bad for the streamers if they are given fair access to the content they will be required to fund. After all, they need to spend on content to fill their pipeline. But the terms of what payback they will get from their required investments are not clear. A lot will depend on what amount of spend the Commission imposes on foreign streamers for production of Canadian content (Cancon), and how Cancon is defined.

Right now, the Canadian content definition is a complicated formula, set by different funding and regulatory bodies, as I outlined in a blog a couple of years ago, (see “Unravelling the Complexities of the Canadian Content (Cancon) Conundrum”) and as Law outlines in his book. The core is the infamous points system, based on the nationality of key players in the production, plus amount of local spending. In addition, one of the current conditions for a production to be considered Canadian—and thus qualify for tax credits (funding)–is that the copyright and catalogue rights must be held by a Canadian (normally the producer) for a minimum of 25 years. However, the CRTC does not impose a copyright requirement when defining Cancon for broadcast quota purposes. Will this continue when the Commission finally gets around to addressing this issue? That shoe is still hanging there.

If the Cancon definition is tweaked in such a way that the foreign streamers are required to spend a set percentage of local revenues on Canadian content, but at the same time are excluded from being able to acquire such production (i.e. restricted to licensing content they have already invested in), this will be a problem. It is one thing to apply strings when a producer is applying for tax credits (AKA a subsidy). It is quite another to be required to fund production but be excluded from recouping a return on that investment in a way that makes most sense for the funder. With the Cancon definition shoe still dangling, trying to enlist the US Administration to bring pressure on Canada right now may not be the best strategy. Not that this has stopped some of the usual suspects, like the National Foreign Trade Council and the US Chamber of Commerce from weighing in. Their comments are no doubt a marker for future reference if needed. CUSMA/USMCA obligations need to be kept front and centre.

As I noted in an article last year, (“Could or Would the US Retaliate Against the Online Streaming Act (C-11) Now That it is Law?”), “the CRTC must be mindful that foreign streamers who contribute to Canadian productions need to be able to access, acquire and distribute them on an equal footing with Canadian streamers, who face no such limitations”. The CUSMA/USMCA trade agreement requires that cross-border digital services be dealt with on a national treatment basis, i.e. accorded no less favourable treatment than Canadian streaming services. The current proviso that exempts Canadian streaming services associated with a Canadian broadcaster from the 5% levy on revenues is not an auspicious start, but we will have to wait to see what happens.

Regarding the link between Cancon and copyright ownership, I know there are people in the industry in Canada whom I respect who argue this is very important to maintain cultural sovereignty. They feel strongly that it is essential for Canadians to hold the copyright in productions to avoid becoming just service producers. They have a point, although there are other considerations that need to be borne in mind. A Canadian producer should be able to hold the copyright (and assume the risk that the production may not be big earner in future) if they wish, or else assign it, take the money and move on to the next project without the government putting its thumb on the scale of commercial negotiations. And it is not unreasonable for those who provide the funding and invest in a project to be allowed to negotiate commercially on how the asset is exploited.

The CRTC’s June 4 announcement can be considered a down payment or perhaps a first shot across the bow, depending on how you want to look at it. We are in for months, if not years, of more consultations. The CRTC’s own announcements project consultations into 2026, well past the next election. There will be several more shoes to drop, and the political landscape could well change. In the meantime, the streamers will have to start paying into a mixed bag of Funds as directed by the CRTC. As for those all-important details about the regulatory framework, they will come later.

It’s USTR “Watch List” Time Again

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Apart from the budding of leaves, the rites of spring are marked by another annual phenomenon, the issuance of the annual Special 301 Report by the Office of the United States Trade Representative (USTR), widely known as the USTR Watch List. For those not steeped in US trade law, the Special 301 report dates back to the late 1980s and is based on the US Trade Act of 1974, later amended to take intellectual property (IP) issues into account. As stated by USTR, the process is “the outcome of a Congressionally-mandated annual review of the global state of intellectual property (IP) rights protection and enforcement”. Global, that is, except for the United States (More on this later). That is because the legislation requires USTR “to identify countries that deny adequate and effective IP protections or fair and equitable market access to U.S. persons who rely on IP protection” (Federal Register). In other words, it is a US government document that catalogues and categorizes the state of IP protection in other countries if their conditions are considered to be impediments to US exports and/or result in US companies or rights-holders being treated unfairly. The practices identified relate to lack of effective legal protection resulting from lax enforcement (e.g. weak border control of counterfeit products or ineffective anti-piracy measures to protect copyrighted content) or deficient laws (loopholes or lack of legislation in key areas resulting in a failure to protect IP rights adequately), policies that weaken or fail to respect IP standards, at least as interpreted by USTR, and non-transparent, discriminatory or other forms of trade restrictions that impede access to copyright protected content. The exact wording, taken from USTR’s website can be found at the end of this blog.[i]

Note that the policies of the identified countries in question–or lack of policies in some cases–don’t have to discriminate against US rightsholders in order to be included in the USTR report. Normally in trade agreements, “national treatment” is sought in order to avoid discrimination on the basis of nationality, i.e. foreign products and services (in this case US goods and services) should be given the same treatment as domestic equivalents. There is also an expectation that a country’s domestic laws (which form the basis of national treatment) will be consistent with its trade agreement commitments. So, for example, if Ruritania has wide exceptions in its domestic copyright law that permit indiscriminate downloading of music and movies, (let’s say there is an exception “for purposes of cultural appreciation”), this does not directly discriminate against US music labels and studios. Even domestic Ruritanian content producers are affected by this very loose fair use regime although in real-life terms this lopsided legislation would affect US interests significantly more than Ruritanian, since the majority of the content consumed in Ruritania is of US origin. However, since US products have been accorded national treatment, the US would find it difficult to bring a trade dispute case. This is where the Watch List comes in handy since USTR can list any practice it feels justified in calling out without being restricted by the limitations of international trade agreements.

While in the Ruritanian case US interests are disadvantaged by the law’s interpretation, so too is the nascent local content industry, i.e. the limited number of Ruritanian music and film producers who are also getting ripped off. The locals can’t seem to get much traction for changes to the law (because who doesn’t like something for free)? Here again the Watch List can play a role. By working with US IP interests, the USTR 301 Report provides an indirect means for domestic IP stakeholders to bring their concerns to the attention of their own government, assuming that Ruritanian officials are responsive to concerns raised by USTR. So, in this way a unilateral US process can be an effective vehicle to raise all IP boats, although the direct focus is on protecting US intellectual property interests.

The Watch Lists embedded in the Special 301 report are compiled from submissions provided by US companies and trade associations in response to a Federal Register notice. These inputs are then vetted by officials in US embassies and consulates overseas, with additional input from various US government agencies. The final decision as to who is placed on which list and for what reason is decided by USTR. There are essentially two lists, a “Priority Watch List” (PWL), where countries facing the most serious allegations of inadequate IP protection and enforcement are named. Being on the PWL could result in USTR initiating formal trade investigations or imposing sanctions if there is no improvement. The second list is the “Watch List” (WL), a longer list of countries where the USTR has concerns about their IP practices but the issues are not as serious as in those countries placed on the PWL. For WL countries, the focus is on monitoring and “encouraging” change. Thus, while each situation is a bit different, the outcome of the process can range from pressure and threats to encouragement and reward. When the hearings are held, foreign embassies will often appear to explain their government’s policies in an attempt to stay off the designation list. Some countries take this process very seriously, others less so. In years past, countries like Taiwan, the Philippines and Malaysia regularly appeared on the Watch List. Over time, they addressed the issues of concern and no longer have the dubious honour of being named.

Other countries, like Canada, seem less concerned about being named, at one point calling the USTR report “… invalid and analytically flawed because the process relies primarily on US industry allegations rather than empirical evidence and objective analysis”. Or maybe the Canadian government has realized that no matter what actions it takes, the goal posts will move as new complaints surface from one US industry or another (BigPharma doesn’t like the pharmaceutical approval process in Canada, US food producers don’t like the recognition Canada accorded to European Geographical Indications in the Canada-EU Trade Agreement, or whatever), and it will continue to be designated as has been the case for at least the past 20 years.

As an example, for many years one of the US complaints was that Canadian border officials did not have ex-officio authority allowing them to seize counterfeit goods in transit (presumably enroute to the US from China or somewhere). That issue was fixed in the update to NAFTA (the USMCA/CUSMA) but now the complaint is that “Canadian authorities have yet to take full advantage of expanded ex officio powers”. Not that this would surprise me. CBSA, the Canadian Border Services Agency, seems to be particularly challenged these days. CBSA’s ineptness extends to an apparent inability to stop a massive movement of stolen Canadian vehicles being shipped in containers through the Port of Montreal to the Middle East and Africa. Given the criminal networks engaged in this large-scale, well-organized theft and hijacking of cars, (which has become an epidemic in Toronto—full disclosure, members of my family have been victimized with cars being stolen from in front of their home in the middle of the night three times in the past 24 months), perhaps using their ex-officio authority to interdict the transit of counterfeit goods is not high on CBSA’s to-do list.

Apart from industry complaints, it would be fair to say that broader political factors also sometimes enter into designation decisions. For example, for many years Ukraine was regularly named to the Priority Watch List for a range of IP transgressions. While its IP record has probably not markedly improved, it is fighting for its life against Russian aggression and presumably strengthening its IP laws is not a current top priority. Therefore, reasonably, the review of Ukraine has been “suspended” although it is not off the hook. Other countries that figure regularly on the “Priority Watch List” (PWL), constitute the “usual suspects”, the ones you would expect to be on such a list; China, Russia, India, Venezuela and three or four others. In 2024, there were 7 PWL countries. There were also 20 named to the less serious “Watch List” category, among them places like Algeria, Belarus, Pakistan, and Turkemenistan, (Uzbekistan was removed this year) but also NAFTA partners Canada and Mexico.

During the USMCA/CUSMA negotiations in 2018, under the Trump Administration, Canada was downgraded to the PWL, the most serious transgressor category. As I commented at the time, this was clearly a politically-driven negotiating tactic to exert pressure on Canada during the negotiations and, frankly, strained the credibility of the process by equating a rule of law country like Canada with other countries on that year’s PWL. Not that Canada has clean hands. This year’s USTR comments about Canada’s Watch List designation cite several concerns. One is the failure of CBSA to fully exploit its ex-officio powers, mentioned above. There is also concern that the courts are not issuing sufficient deterrent level penalties when those trafficking in counterfeit goods are caught. There is also the allegation that “Levels of online piracy remain very high in Canada, including through direct downloads and streaming. Piracy devices, apps, and subscription services are reportedly sold throughout Canada, both in physical retail locations and through online channels.” All probably true, but is the problem any worse in Canada than in the US? See my next blog.

The USTR report also includes a concern with which I very much agree, namely, “the broad interpretation of the fair dealing exception for the purpose of education, which…has significantly damaged the market for educational authors and publishers”. However, I suspect that even if the Canadian government finally got around to fixing this injustice (which I hope will be the case), Canada would still be on the WL some other reason.

To summarize, the Special 301 Watch List process has been effective in raising IP standards generally in many areas globally but is not immune from influence arising from US domestic political factors. It is also consciously not designed to identify IP shortcomings in the United States. But what if the US was also reviewed under the Special 301 provisions? If USTR applied the same critical lens to IP practices in the United States that it applies to other countries, (at least in the area of copyright), what would a US Watch List designation look like? The results might be surprising to some readers. To find out what this might look like, stay tuned for my next blog post, “The USTR Watch List Designation You Will Never See”.

[i] The Report identifies a wide range of concerns that limit innovation and investment, including: (a) the deterioration in the effectiveness of IP protection and enforcement and overall market access for persons relying on IP in a number of trading partner markets; (b) reported inadequacies in trade secret protection in countries around the world, as well as an increasing incidence of trade secret misappropriation; (c) troubling “indigenous innovation” policies that may unfairly disadvantage U.S. rights holders in foreign markets; (d) the continuing challenges of copyright piracy and the sale of counterfeit trademarked products on the Internet; (e) additional market access barriers, including nontransparent, discriminatory or otherwise trade-restrictive, measures that appear to impede access to healthcare and copyright-protected content; and (f) ongoing, systemic IP enforcement issues at borders and in many trading partner markets around the world.

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)

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Canada not the US when it comes to copyright—or anything else. This should be a statement of the obvious, but in fact all too often Canadians get confused about how copyright (and other) laws work in this country because of the overwhelming influence of US entertainment and, to a lesser extent, US media content in Canada. For example, during the truckers convoy to Ottawa a couple of years ago, some of those arrested protested that they weren’t read their “Miranda rights”. (Right to remain silent, etc). They’d been watching too much US television. Miranda rights do not apply in Canada although Canada does have similar “Charter rights” that include the right to be informed of the alleged offence and the right to counsel. Likewise, in the area of copyright, Canadians will often refer to “fair use”, even though the US fair use doctrine does not apply in Canada. In particular, the application of a “transformation” test by US courts as one consideration in determining fair use has no applicability in Canadian law. Just as Canada has a similar but not identical concept to Miranda rights, it also has user exceptions to copyright through the fair dealing exceptions specified in the Copyright Act. However, while there are many similarities, fair dealing and fair use have some important differences, in Canada as elsewhere.

The Public Domain in Canada and the US: Not the Same

Yet one more important difference between Canada and the US is the date on which copyright protection expires, allowing various works to fall into the public domain. Although the term of copyright protection in Canada is now “life of the author plus 70 years”, the same as in the US since the extension of Canada’s term of protection at the end of 2022 as a result of commitments Canada made in the CUSMA/USMCA, there are still many works protected by copyright in the US that are in the public domain in Canada. This is primarily because of Canada’s shorter “life plus 50 year term” that was in force for many years until the recent change. The extension of copyright protection in Canada in 2022 does not apply retroactively to works already in the public domain. A few years ago I wrote a blog post about F. Scott Fitzgerald’s The Great Gatsby, recounting how it was in the public domain in Canada yet still under copyright protection in the US. As a result, Canadian publishers could freely reprint the work, and some did, like Broadview Press, but they could not legally sell it in the US.

The Historical Context

This harkens back to the bad old days in the 19^th century when Canadian printers would frequently publish US works without obtaining rights from the author since at the time US registered works enjoyed copyright protection only within the United States, just as British or Canadian works were protected only in Britain and its possessions. Thus, reprinting US works in Canada without permission from the US rightsholder was legal. What was not legal was the smuggling of these Canadian-printed US works back into the US at cut-rate prices, a situation that led Mark Twain to lament his mistrust of “Canadian pirates”. (Just to be clear, I am not suggesting that modern Canadian publishers of US works that are in the public domain in Canada but not in the US are engaged in illicit supply of those books to US readers). At the time this Canadian “piracy” was going on, US printers were treating British works similarly, freely reprinting them for sale in the US without having obtained or needing to obtain the rights, as I discussed in this blog post. Because of its geographical position adjacent to the US yet still subject to certain imperial laws, Canada found itself caught in the crossfire of the Anglo-American copyright wars of the late 19^th century. With the signing of the Berne Convention in 1886, and the passage of legislation in the US in 1891 that provided for reciprocal recognition of national copyrights under certain conditions, this problem was largely resolved.

Anne of Green Gables

While at the present time copyright protection in the US is generally longer than in Canada for the same works, at times Canadian copyrights have been longer than those in the US. This is particularly true of that quintessential early Canadian work, Anne of Green Gables. If you will allow me to go down the copyright nerd rabbit hole for a second, I will explain how this occurred.

Lucy Maude Montgomery’s work was published first in the United States in 1908. Like many Canadian writers at the time, she thought her chances of getting published south of the border were better than in Canada. Under then US law (the Copyright Act of 1909), the work was entitled to 28 years of protection from date of publication, subject to a further 28 years of protection if the rights-holder renewed the rights in the 28^th year. The book’s publisher, L.C. Page & Co. of Boston, was assiduous in protecting its rights and ensured that the term of protection was extended, which provided protection until 1964. However, beginning in 1963, the US Congress annually passed interim extensions to works still under copyright, in anticipation of a major overhaul of US copyright law. Thus the work was still protected when the US Copyright Act of 1976 came into effect on January 1, 1978. That legislation converted the US term of protection for books from a set period after publication to the more widely accepted rule of author’s life plus a specified number of years, in this case fifty.

The Berne Convention countries had recommended “life plus 50” as the minimum standard of protection in 1908 and incorporated it as a requirement in 1948. The US now joined this consensus (although it did not join Berne at that time). The new US “life plus 50” rules applied to all works created after January 1, 1978, but what to do about earlier works? Pre-1978 works were subject only to a 56 year term of protection after publication, so Congress extended the period of supplementary protection under the old legislation (28 years) by an additional 19 years, making the full term for a registered older work 75 years (28 for the original term and 47 for the supplementary term) from the date of publication. This 19-year extension provided copyright protection to the 1908 Anne of Green Gables up to 1983 in the US. Meanwhile, Canada had been following the Berne “life plus 50” standard since the early 1920s. Thus, the copyright on Anne of Green Gables (or any of Montgomery’s other works) in Canada was protected until January 1, 1993, almost a decade longer than in the US, Montgomery having died in April 1942.

The lapse of copyright on Anne in both the US and Canada has not, however, stopped the Montgomery estate and the Government of Prince Edward Island, which has set up the Anne Authority, from vigorously pursuing legal action against any usurpers of the Anne trademarks that they have registered. A couple of years ago they threatened the US producers of an Anne spin off, a musical called Anne of Green Gables: A New Musical, with a lawsuit for trademark violation. The producers countersued, claiming that Anne was as much in the public domain as Shakespeare. In the end, both sides dropped their suits and the musical continued in production.

The US Extends its Term in 1998: Why?

While Anne’s copyright lapsed in Canada later than in the US, ever since the US extended its terms of copyright from “life plus 50” to “life plus 70” in 1998, the shoe is normally on the other foot. There are critics in the US that claim Congress passed the extension to satisfy the Walt Disney Company, given that some of Disney’s corporate copyrights were close to expiring, notably the copyright on Mickey Mouse. Steamboat Willie first appeared in 1928. As I wrote in a blog post a couple of years ago, (The Mickey Mouse Copyright Extension Myth: A Convenient “Straw Man” to Attack), that is hogwash. Of course, Disney was not opposed to extending the term of copyright protection, but whatever lobbying it did was not the primary reason for the US action. The main motivation was to bring US copyright into line with that of the EU. The EU had harmonized its copyright term (which varied widely between member states) to a common “life plus 70” standard in 1993. Since the extra 20 years were beyond the required Berne minimum, the EU was free to apply a reciprocity clause, which it did in order to encourage other countries to follow its example. It would extend the longer period of protection to non-EU authors only if EU authors received similar protection in the other country. This was a permitted derogation from the normal national treatment rule in Berne whereby any member state was required to accord a foreign copyright holder equivalent treatment to that provided to its own nationals.

The adding of an additional 20 years to US copyright protection had an additional wrinkle beyond going from “life plus 50” to “life plus 70” for post-1978 works. When the US changed its term to life of the author plus 50 years back in 1978 , recall that it instituted a provision for works protected under the old regime (where protection began from the date of publication) by rounding up the period of protection post-publication to 75 years. When it added 20 years to the “life plus” formula in 1998, Congress also added 20 years to the protection afforded works published pre-1978. Thus, these earlier works were now protected for 95 years from the date of publication.

Steamboat Willie

This leads us to Steamboat Willie and the frenzy that took place amongst public domain advocates when Willie entered the public domain on January 1 of this year. Almost every US broadcast and media outlet had a lead article on this “amazing development”, but Canadians were not spared. The CBC, Globe and Mail, Toronto Star, and others–even some Canadian law firms—breathlessly touted the entry of the mouse into the public domain, without bothering to even reference how Canadian copyright law applied. Some of them simply picked up a syndicated AP story, but none bothered to mention the salient but apparently unreportable fact that Willie was already in the public domain in Canada–and had been for two years! Apparently nobody noticed.

All the nonsense about works entering the US public domain on January 1 each year is designed to promote the narrative that these works have somehow been released from bondage, and that new explosions of creativity using the stories and characters are about to appear. Winnie the Pooh was the star of the show back in 2022, with the CBC grabbing the story, neglecting to mention that author A.A. Milne’s works had been in the public domain in Canada since 2007, (50 years after Milne’s passing). It’s total rubbish, with the new “creative works” emerging from this process leaving more than a little to be desired.

Why was Willie in the Public Domain in Canada but not the US?

This is yet another copyright rabbit hole to explore. Hang on. Willie entered the public domain in the US in 2024 because of the 95 year rule mentioned earlier. Pre-1978 published US works are subject to this rule (unless the copyright was not renewed in the 28^th year). Thus, Steamboat Willie, having first appeared in 1928, entered the public domain in the US this January. But Canada does not apply this rule. Its term of protection is based on the life of the author or authors (in the case of joint authorship). In the case of Steamboat Willie, there were two co-authors who held the copyright, Walt Disney and Ub Iwerks.

In his blog post “Mickey Mouse and the public domain”, copyright officer at Simon Fraser University in Vancouver, Donald Taylor, takes us through the details. Disney and Iwerks were the creators of the character. Disney died in 1966, Iwerks (a noted animator who created many Disney characters), died in 1971. With joint authorship, the term is based on the lifespan of the last survivor. Thus, in Canada, under the “life plus 50” rule that prevailed until the end of 2022, Steamboat Willie went into the Canadian public domain on January 1, 2022. Had Iwerks not died until 1972, the extended term that became effective in Canada on December 30, 2022 would have protected Willie in Canada until 2042. I wonder what the Canadian media outlets who prattled on earlier this year about Willie’s public domain entry on January 1 would have had to say then?

Willie and the Rule of the Shorter Term in Europe

There is even one more wrinkle in this, as pointed out by Taylor. Some countries have been applying the “life plus 70” rule for many years. In Germany it has been in effect since 1971, therefore in theory Willie should be protected in Germany until 2042. However, under something called the “rule of the shorter term”, (which allows the EU to apply the “shorter term” i.e. “life plus 50” to countries that do not match the EU’s “life plus 70” term), there is a provision that if a work enters the public domain in the country of its origin, then it will also be in the public domain of a country implementing the “rule of the shorter term.” Brazil does not apply this rule, so Willie is protected there until 2042, but he is now in the public domain in Germany. Incidentally, the EU’s application of the shorter term rule (the US does not apply it) provided additional benefits for Canadian authors when Canada extended its term in 2022, since Canadian works in the EU now get full national treatment, i.e. equal treatment with EU authors of “life plus 70”. What a rabbit hole!

When it comes to copyright, there is always something new to explore, a new wrinkle, a rabbit hole if you will. If there is one lesson that we can draw from all this, it’s don’t assume that what applies in the US when it comes to copyright (or any other law, for that matter) has any direct bearing on the situation in Canada, no matter what you see on TV, read in the Canadian press or hear on the CBC.

Editor’s Note: This post has been updated. The second and third paragraphs in the section headed “Anne of Green Gables” have been modified to explain that the work did not fall into the public domain in the US in 1964 (56 years after publication), only to have its copyright revived and extended after the implementation of the US Copyright Act of 1976. Rather, it continued to be protected as a result of a series of interim extensions passed by Congress until the enactment of the 1976 Act, at which time the term of pre-1978 works was extended by an additional 19 years, to 75 years from date of publication. As a result, in the case of Anne of Green Gables, its US copyright expired in 1983, as stated.

The Economics of Copyright: Incentives and Rewards (It’s Important to Get them Right)

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Two years ago, in April 2022, the US Copyright Office (USCO) appointed its first Chief Economist, Dr. Brent Lutes. Many national Intellectual Property Offices have such a position, e.g, UK IPO, IP Australia, EUIPO, and WIPO. (Notably, Canada’s Intellectual Property Office–CIPO–does not). All these positions have broad responsibility for assessing the economics of IP generally, covering patent, trademark, industrial designs as well as copyright. In the US, the Patent and Trademark Office has its own Chief Economist. However, Lutes’ USCO position appears to be the only one related exclusively to assessing the economic impact of copyright. The position sits within the Office of Policy and International Affairs and is composed of a small team of economists, providing the Register of Copyrights, Shira Perlmutter, with policy-relevant research on economic issues related to copyright.

In an interview conducted last month, Lutes talked about the economic goals of copyright in terms of enhancing social welfare. He noted the goal of copyright is to contribute to the welfare of society by promoting access to creative works, now and in the future, through market based behavioural incentives. The goal of the Office of Chief Economist is to gather more information to inform policy making, such as the geographic distribution of copyright activity or the demographic characteristics of creators. As but one example, is racial or ethnic diversity related to creativity? The economic issues surrounding AI and copyright, both pro and con, is another field of research the USCO will be exploring.

In addition to finding the right economic levers to stimulate production of creative works, economic studies of copyright also demonstrate the enormous impact copyright-based industries have on national economic welfare. While the impact can depend on what economic multipliers are used and how direct versus indirect benefits are calculated, there is no question that copyright industries in most economies are very significant as job creators and multipliers. For example, IP Australia in its most recent annual report estimates that cultural and creative activity contributes about 6% of Australian GDP annually, with design, fashion, publishing, broadcasting, electronic and digital media and film being the primary industries involved. In the US the figures are even more impressive. According to the International Intellectual Property Alliance, in 2021 (the last year for which statistics are apparently available), core copyright industries in the US, defined as those industries “whose primary purpose is to create, produce, distribute or exhibit copyright materials”, added $1.8 trillion to US GDP, accounting for 7.76% of the economy. Total copyright industries, a definition that includes industries partially dependent on copyright, such as fabric, jewellery or toys and games, account for another trillion USD, even when only a portion of their total value is included in the copyright calculation.

The UK Intellectual Property Office published its IP survey in 2022, comparing the role of patents, trademark, registered industrial designs and copyright. While copyright industries were on the low side for exports (£4.7 billion as opposed to patents at £120.6 billion, copyright’s “non-financial value-added output” (IP data is not available for the financial industries, thus the description of “non-financial”) trounced that of patent industries by almost 2:1. As with the US IIPA study, the UK report accounted for the degree to which certain industries depend on copyright, categorizing them as core, interdependent, partial or non-dedicated support industries, adjusting the amount of copyright contribution accordingly. Book publishing, for example, is considered a 100% copyright industry and its value is calculated as such, whereas for an industry such as paper manufacturing, only 25% of the value was included in the calculation of copyright benefits. This methodology followed that of the World Intellectual Property Organization, aka WIPO, which also conducts economic studies as well as assists national authorities with their own. Economists are careful people, not prone to exaggeration, and consistent methodology is important to ensure accurate measurement and reporting.

WIPO worked with the Department of Canadian Heritage to produce a report in 2020 on “The Economic Impact of Canada’s Copyright-Based Industries”. As with other deep dives on the economic benefits of copyright, this study produced similar notable statistics. For example, while many copyright opponents in Canada were deploring the extension of the copyright term of protection in Canada, arguing that the result would be an outflow of royalties to foreign rights-holders because Canada was a net importer of copyrighted materials, the Heritage report established that “Canada has exported more copyright-related services than it has imported, maintaining a trade balance surplus from 2009 ($2.5 billion) to 2019 ($5.6 billion)”. In actual fact, extending the copyright term in Canada brought with it the additional benefit of a reciprocal extended term in many foreign countries for Canadian works, clearly benefiting Canadian rights-holders. The Heritage study went on to document a range of other important outcomes such as employment (over 600,000), contribution to GDP ($95.6 billion) and percentage of GDP (4.9%). All figures are based on 2019 data. No update has been published since. It is just as well that Heritage Canada took the lead in preparing this report since the government department holding lead statutory responsible for copyright in Canada, the mammoth Department of Industry, Science and Economic Development (ISED), unfortunately seems to treat copyright as but a tiny pimple on its elephantine rump.

While the studies cited above highlight the economic contribution that copyright industries make to national economies in terms of jobs and wealth generation, let us not forget the key point that Dr. Lutes underlined regarding the social welfare contribution of copyright through using market-based incentives to promote and encourage creativity and investment in creative outputs. It is hard, if not impossible, to put a dollar amount on the social welfare benefits of creative expression and cultural sovereignty, but they are immense if incalculable. Without copyright, not only would existing content-based industries be unable to thrive and expand, but the formula to encourage new, original content would be missing.

Notwithstanding the importance of a robust copyright framework for both economic and social welfare, creators and content-based copyright industries are facing major challenges today. Some are technological, like the emergence of generative AI; some behavioural, such as a wide tolerance, even acceptance, of piracy and free riding. The struggle against piracy is ongoing and protracted, a cat and mouse game. Free riding is what AI developers are doing on the backs of content creators through unauthorized training of AI models on copyrighted content, with resultant legal challenges. There is also the question of whether wholly AI generated works should be accorded copyright protection. As the Copyright Alliance has observed, the Copyright Clause in the US Constitution is premised on the promotion of the “progress of science and useful arts” by protecting for a limited period of time the writings and discoveries of authors and inventors. Given that premise, it should be self-evident that creator incentivization is not applicable to machines, which do not need nor comprehend economic incentives to create.

Free riding is also what the education sector has been doing in Canada under the specious umbrella of “education fair dealing”, introduced through copyright amendments in 2012 that broadened the scope of fair dealing. Since then, the “education industry” at the public, secondary and post-secondary level has been siphoning off economic value from writers and other creators to the tune to date of over CAD$200 million. Their legalized renunciation of collective reprographic licensing is ostensibly to benefit students but is in fact a transfer of wealth from creators to the bottom line of educational institutions. If a key objective of copyright is to incentivize creation of new content, such as materials used by educational institutions to teach students, then the current interpretation of education fair dealing in Canada upends a key rationale for granting copyright protection in the first place. (As a footnote, I should add that not all arguments in favour of copyright are based solely on economic incentives. There is also the question of natural justice and equity, providing authors with a degree of control over works they have created).

Since court challenges have unfortunately proven ineffective, the remedy for Canada’s education fair dealing fiasco is for the Government of Canada to amend the Copyright Act so that rightsholders are properly compensated when their works are used in Canada. Both the copyright collective in English Canada, Access Copyright and its Québec counterpart, Copibec, recently called for legal clarification of the nature and extent of educational fair dealing.

Thorough documentation of the contribution that copyright makes to economic and social welfare helps substantiate the case for adequate legal frameworks, including combatting piracy and ending copyright free riding. Sound economic data are essential to sound policy making. The initiative of the US Copyright Office to appoint a Chief Economist helps to meet these goals and is to be commended. Should the Canadian Intellectual Property Office ever create such a position, its first task should be to evaluate the full economic and social costs of the current short-sighted interpretation of fair dealing in Canada’s education sector in terms of its negative long-term impact on creativity and cultural sovereignty in the country.

The Scottish writer Thomas Carlyle may have described economics as the “dismal science”, an oft-quoted remark, but rather than being dismal it is in fact just the opposite; it sheds light on the importance of copyright to maintaining a well-functioning, equitable and culturally rich modern society.

When Just Going to the Movies is Dangerous: Indian Diaspora Targeted in Canada

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Immigrants who take up a new life in what is often a culturally very different country from their original homeland naturally seek out the familiar by associating with those from “home” as part of the adaptation process. This is certainly true of the Indian diaspora, in Canada as elsewhere. Part of that comforting feeling of “home” comes from sharing cultural experiences, such as food, music, and movies. As is widely known, India has the world’s largest film industry in terms of output, so it is natural that Indian films will be an important part of cultural bonding for South Asian diaspora communities. But what is an Indian film? The Indian film industry is far from monolithic. There is Bollywood, to be sure, for Hindi language films, but also Tollywood, a term variously used to describe Telugu language films originating in Andhra Pradesh but also Bengali films from Kolkata, and not to be forgotten, a South Indian film industry based in Kerala in southwest India, using the Malayalam language, as well as Tamil language films. And others.

In other words, there are lots of Indian diasporas, many of which have a long tradition of producing their own filmed entertainment. Most of these groups are well represented in Canada. According the 2021 census, the South Asian population of Canada (those identifying as South Asian) was just over 1.8 million, or roughly 5% of the population. The term South Asian includes Muslims from Pakistan and Tamils from Sri Lanka, so if we are talking solely about Canadians originally from India, the total falls to 1.4 million. In terms of geography, the largest group is from the Punjab, the majority of them Sikhs, although there are significant populations of immigrants from Gujerat, Tamil Nadu and Kerala. Hindus make up 2.3 % of Canada’s population; Sikhs 2.1%. (It is interesting to note that Sikhs make up about the same percent of India’s population as they do in Canada). One characteristic of Sikhs in Canada is their degree of political activity. In the current Parliament there are no less than 18 Sikh MPs out of a total of 338, spread across three different parties. By contrast, India’s Lok Sabha, with 543 members, has just 13 Sikh Members. But I digress.

Let’s get back to Indian films, particularly South Indian films, in Canada. You might think that going to the movies to watch a flick from home would be a relaxing and pleasant pastime. If that’s what you think, you would be wrong. In fact, going to a Telugu, Tamil or Malayalam film in Canada can be very stressful, if not downright dangerous. For more than a decade there has been a history of violence against cinema operators screening such films. Screens have been slashed, stink bombs set off and worse. The most recent violence involved drive by shootings at four Toronto area cinemas, resulting in the cancellation of showings of the Malayalam language epic “Malaikottai Vaaliban” in Cineplex venues across the country. What’s going on? Is someone trying to stop the South Indian diaspora from enjoying their movies? Well, not exactly. They are trying to stop them from enjoying their movies in certain locations.

What is happening appears to be commercially motivated, with a turf war taking place over the distribution of these films, with distributors accusing a collection of independent theatres of violence and sabotage. (No arrests have been made or charges laid). Screening ethnic films can be a lucrative business with tickets reportedly going for as much as $30 a head. However, large mainstream multiscreen exhibitors like Cineplex routinely charge about half that amount and as the company has moved into showing Indian language films, it has been targeted. To date, the disruptors have succeeded, as on several occasions Cineplex has cancelled scheduled showings, including screening Malaikottai Vaaliban in BC, even though the most recent violence took place in Toronto. In the past there have also been violent incidents regarding the screening of South Indian films in Edmonton and Calgary.

It is natural for a national chain like Cineplex to want to move into the diaspora market, given the size of Canada’s immigrant population. As of the last census, almost 25% of the population was born outside Canada. The COVID pandemic, which for a time brought movie attendance to a standstill (Cineplex shuttered its theatres for several months in 2020), wreaked havoc on the theatre exhibition industry. Things are recovering, however, with revenues up substantially in 2023 although attendance has yet to reach pre-pandemic levels. But NATO (the National Association of Theatre Owners, i.e. the other NATO) is concerned about predictions of a drop in revenues in 2024 owing to a shortage of films after last year’s SAG-AFTRA strike. This is yet another reason for chains like Cineplex to move into screening of diaspora films, where strong attendance for limited showings can be anticipated.

In Canada, Cineplex, the nation’s largest cinema chain and the fourth largest in North America, struggled as much as others during COVID. One result was the collapse of its acquisition by Cineworld, the UK based exhibitor (which operates Regal Cinemas in the US) that had made a bid for Cineplex in 2019, just prior to the outbreak of COVID-19. With the onset of the pandemic, Cineworld backed out of the deal, and was promptly sued by Cineplex. The result was a $1.24 billion judgement in favour of Cineplex. Subsequently, however, Cineworld declared bankruptcy in the US. No collection on that debt.

Meanwhile, what should Canada’s Indian diaspora do when even going to the movies becomes a fraught and potentially dangerous outing? They should be demanding action on the part of the police! In my estimation, Canadian police forces have typically been slow to come to grips with what one might call “blue on blue” violence, where one element of a diaspora community will harass or intimidate other elements within the same community. In part, it is a result of certain institutions being behind the times and not reflecting the current ethnic make-up of the population; it takes time to win the trust of and to be able to penetrate some ethnic communities. But even allowing for these excuses, it is unacceptable that random (or maybe not so random) violence should be permitted when it comes to something as basic as going out with your family to watch a show. I guarantee it would not be tolerated in the non-diaspora community. Can you imagine the owners of the local indie theatre sending out gunmen to shoot up the local Cineplex because the theatre chain had the temerity to show “Live at the Met” on a Saturday morning? That is the equivalent of what’s been happening, and it’s been going on for far too long.

Even though to date no one has been injured or killed, if this violence continues something really bad is inevitably going to happen. Cancelling showings is not the answer; this only encourages the perpetrators. Toronto-area police forces need to make investigating and stopping this illegal activity a priority. It is like the “broken-windows theory”. If you can’t take your family in safety to the movies, what’s next for the unravelling of law and order?

I don’t think I will ever go to a Telugu or Malayalam language movie, but I respect the rights of those who do. I hope that the next diaspora blockbuster to come to Canada gets a proper screening across the country in popular venues that provide inexpensive, comfortable and safe viewing. Our immigrant communities deserve no less.

Tag: canada

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