Tag: Copyright

If AI Tramples Copyright During its Training and Development, Should AI’s Output Benefit from Copyright Protection? Part Two: Jason Allen

Image: Théâtre D’Opéra Spatial, Jason B. Allen (not protected by copyright)

Last week I wrote about Stephen Thaler’s quixotic and determined approach to obtain copyright registration in the US for his AI generated artwork, “A Recent Entrance to Paradise”, created (he claims) exclusively by his AI “machine”, the so-called Creativity Machine. So far, despite repeated efforts, he has drilled a dry hole. An alternative approach to claiming copyright for an AI-generated work is by asserting that the AI used to produce it was simply a technological assist. The essence of the work was produced through human creativity, using AI only as a tool, and therefore the work should be eligible for copyright protection, or so the argument goes. Unlike the example of Kristina Kashtanova, discussed in last week’s blog, under this theory the entire work is protectable because it was human created, with AI playing only a facilitating or assistive role. This line of attack has most recently been pushed by the creator of the work “Théâtre D’Opéra Spatial”, Jason B. Allen.

Allen made headlines a couple of years back (September 2022) when he entered Théâtre into the Colorado State Fair’s annual art competition in the category of “digital art/digitally manipulated photography.” He labelled the piece as having been created by him, “via Midjourney”, the popular generative AI art algorithm that had recently been released. He won first prize, incurring the opprobrium of many artists who accused him of crashing a contest for human creators. Writing just a month later, in October of 2022, I posted my own AI produced artwork, based on the style of Monet (whose works are in the public domain) in this blog post, (AI and Computer-Generated Art: Its Impact on Artists and Copyright). My effort was substantially less artistic than Allen’s but was an original work of sorts, created with the help of AI. I used the program DALL-E2, which is similar to Midjourney. Both were freely available and a tool that any rank amateur “artist” (like me) could use.

Generative AI as a source of art burst into the public’s consciousness in 2022 because of the public release of these programs, but AI generated art has been around for a few years before that although used exclusively by art specialists. The New York Times reports on a sale at Christie’s Auction House four years earlier, in October 2018 (not exactly eons ago, but generations in internet/AI time). A portrait with blurred and distorted lines produced by an AI algorithm sold in New York for $432,500 (with fees). Christie’s, in inimitable auctioneering style, billed it as “the first portrait generated by an algorithm to come up for auction”, according to the Times. Now AI generated art is a dime a dozen. In fact, often it is hard to tell what is AI generated and what is not.

If the question of copyright protection for AI generated content is a big issue, an even bigger one is currently being played out currently in the courts; content owners, ranging from the New York Times to Getty Images to music labels to authors, are suing various AI development companies for unlicensed use of their content to train AI programs. The Copyright Alliance has a good summary of the various lawsuits in play here. The ultimate outcome is undecided, but if the courts find that the wholesale unlicensed and unauthorized ingestion of copyrighted content to train AI algorithms is not fair use (in the US) or does not fall within specified text and data mining exceptions in other jurisdictions, then the table will be set for serious negotiation between rights holders and AI developers. Some of the parameters of this negotiation are already pretty obvious;

  • a transparent inventory of what copyrighted works were accessed for training;
  • the ability of rights holders to be able to opt out or opt in;
  • various options for licensing content for training purposes.

If these conditions governing inputs were met, rights holders might be somewhat more sympathetic to arguments for copyrighting the output of generative AI programs. As it is, AI developers, and the users of AI programs, want to have their cake and eat it too. Jason B. Allen of “Théâtre D’Opéra Spatial” is Exhibit No. 1.

Allen is currently appealing in court the US Copyright Office’s ruling that his work cannot be registered under copyright. He claims that because of all the publicity about his work, and the USCO’s subsequent decision to deny copyright registration on the grounds that it was an AI generated rather than human creation, the work has lost value and impacted his ability to charge industry-standard licensing fees. Moreover, he claims that without copyright protection, he has no ability to stop others from using his work without authorization. (Like me, posting Théâtre on this blog post). Apparently, people are selling copies of the work on Etsy. One has some sympathy for his position, as it is one faced by many artists whose copyrighted works are also being ripped off on the internet.

Allen argues he had substantial creative input into the production of the work, using no fewer than 624 prompts to create the work to his mental specifications. Of course, we have no idea of what those specifications were. What Midjourney produced may have been an accurate reflection of what Allen had in his mind and intentionally created, or it may have taken him on a journey where he eventually settled on the output offered. One thing is likely, if not certain. Were he to enter those exact same prompts into Midjourney today, the outcome would not be identical to the current “Théâtre D’Opéra Spatial”. This raises the question of who, exactly, is guiding the creative process, the artist making the prompts, or the algorithm responding to the prompts.

Because of the way AI works, there is a large degree of randomness in the results, requiring more and more precise prompts to narrow the range of possibilities and guide the algorithm to the desired destination. But it is almost impossible to recreate precisely the route to an outcome. This suggests to me that, in the end, it is the algorithm that is in control, not the human issuing the prompts. (Although not everyone agrees with this thesis). To my mind, this is what distinguishes AI-generated art from photography, where the photographer, while using a mechanical assist, is nevertheless in full control at all times and has the ability to adjust for extraneous inputs such as light, shadow etc. rather than being controlled by them.

Allen’s appeal of the USCO’s rejection of his copyright claim takes place against a backdrop where Midjourney, the AI program he used, is itself being sued by a group of artists for appropriating their work without permission in order to train Midjourney’s art generation algorithms. Does anyone see any irony in this? However, the fact that Midjourney takes the works of others without permission for training and development purposes is not really Allen’s fault. He and other users of the program could perhaps be considered victims almost as much as the artists whose works have been appropriated. Nevertheless, if Allen is ever successful in getting Théâtre registered, this will be not just to his benefit, but also to the benefit of Midjourney and all the other AI developers who are in a similar position. On the other hand, if the output of their programs cannot be copyright protected, it diminishes the value of the AI product. So, perversely, the more Allen pursues registration for Théâtre, the more he undercuts those who make a living from producing art.

I see one possible scenario that could help resolve the issue of AI outputs being unprotectable. If the key elements of respect for copyrighted work (transparent inventory, opt in/out, licensing) were to be adopted by AI developers, then perhaps rights-holders would be more amenable to accepting at least some degree of copyright protection for AI created or assisted outputs. But right now, the AI industry wants it both ways; total freedom to appropriate copyrighted works for training and development purposes while claiming the same copyright protection they have just trampled for AI generated outputs. Jason Allen and other digital artists who use AI to produce art or other works are caught in the middle.

At the moment there is no clear solution. The most likely outcome–after all the legal dust has settled—is probably going to be some ability to copyright works produced with AI, dependent on the extent and degree of human intervention in a given work (which could possibly be carefully tailored prompts), balanced by a commitment by the AI industry to recognize the property rights of those holding copyright over the content it is using to create the AI program in the first place. This will necessarily involve an appropriate sharing of the added value being produced by AI in the form of licensing fees. This will take a few more years, a few more lawsuits, a few court decisions, and a few government interventions in the form of legislation–but I can see no other way forward. In the interim, neither Stephen Thaler nor Jason Allen are likely to get what they want.

© Hugh Stephens 2024. All Rights Reserved.

If AI Tramples Copyright During its Training and Development, Should AI’s Output Benefit from Copyright Protection? Part One: Stephen Thaler

” A Recent Entrance to Paradise”, Stephen Thaler (not protected by copyright)

One of the ongoing debates about works made with generative AI is whether they qualify for copyright protection. Should they? Let’s consider the essence of copyright. What is its raison d’être? According to the classical European definition, it is to respect the property rights of the author (droit d’auteur), sometimes described in the simple terms of the Eighth Commandment (“Thou shalt not steal”). According to the more utilitarian Anglo-Saxon rationale for copyright, it is to benefit society by rewarding and incentivizing authors, thus stimulating further production of works for the greater good. In either case, it gives one pause to wonder how works created by AI fit into either school of thought. Is there an inherent property right in content produced by an algorithm? How does copyright protection incentivize an algorithm to produce more “useful arts”?

In my view, the only way one can square this circle is by attributing human creation, or at least a degree of human creation, to AI generated works. But this opens Pandora’s box; if there is to be human attribution, to whom in the chain of creation does the credit fall? How much human creativity is required? It also raises the spectre of hypocrisy, as the AI industry hijacks the creative work of others, without recognition or recompense, yet has the gall to claim that AI outputs are unique and worthy of protection. I have written about these issues before (here, here, and here), but a couple of recent cases in the US have brought these fundamental issues bubbling back to the surface.

When it comes to trying to prove that AI and copyright protection go together, there are a couple of different approaches. One, most notably espoused by an AI technologist in the US named Stephen Thaler, is to claim that a given work was produced exclusively by AI but should nonetheless be protected. In Thaler’s case, the work for which he is seeking copyright registration was created by a particular AI “machine” (or algorithm), specifically the one he “invented”, the so-called “Creativity Machine”. Thaler claims his machine should hold the copyright but behind the machine, of course, stands Thaler. This is not dissimilar to existing British copyright law where, under Section 178 of the Copyright, Designs and Patents Act, 1988, works “generated by computer in circumstances such that there is no human author of the work” are nevertheless accorded copyright protection for fifty years from date of creation, with the copyright being held by “the person by whom the arrangements necessary for the creation of the work are undertaken”, even if there was no creative act undertaken by that person.

As I noted in an earlier blog post (The Humanity of Copyright), Thaler began his (so far) unsuccessful pursuit of US copyright registration for his professed 100% AI generated art work, “A Recent Entrance to Paradise”, back in 2018. Despite several reversals, both in the application process at the USCO, its Review Board and in the District of Columbia courts, Thaler persists in his quixotic journey. He has unsuccessfully argued various precedents for non-human copyright ownership, such as the “work for hire” doctrine and corporate copyright, although it is worth noting that humans stand behind both. He is now apparently pursuing the common law theory of “fruit of the tree” in his attempt to get the USCO to register his work. To my non-legal mind, this is the ultimate stretch.

What Thaler could do is to claim that at least part of the work is the result of his personal creative efforts. That was the USCO outcome for the graphic novel Zarya of the Dawn produced by writer Kristina Kashtanova (who identifies as “they”). The novel contained both generative artwork and human story and design elements. After initially registering Kashtanova’s work, the Copyright Office cancelled the registration after they (Kashtanova, that is) claimed it was AI produced. The Office subsequently reconsidered and granted copyright protection to the parts of the work Kashtanova had created, namely the text, and selection and arrangement of the work’s written and visual elements. That, however, is a step too far for Thaler who continues to push for recognition by the Copyright Office that a work produced exclusively by his “Creativity Machine” can be protected by copyright. That seems very unlikely to happen.

While Thaler doggedly pursues copyright registration for “A Recent Entry to Paradise” (featured on this blog post—after all, it is not copyright protected), others who have created art using AI are following a different track. One of these is Jason B. Allen, whose award-winning digital art creation “Théâtre D’Opéra Spatial” has also been denied copyright registration. Allen’s approach is the opposite to that taken by Thaler. In contrast to Thaler’s insistence that the work is a creation of AI (his AI “machine”), Allen insists that he is the source of the creative inspiration behind the work, notwithstanding that it was created by an AI algorithm, Midjourney. Allen’s pursuit of copyright registration for “Théâtre” will be the subject of my blog post next week.

© Hugh Stephens, 2024. All Rights Reserved.

Singapore Inhibits Rightsholders Ability to Use Contracts to Prevent Unlicensed Text and Data Mining of Content

Image: Shutterstock (AI modified)

Singapore already has one of the most permissive text and data mining (TDM) exceptions in copyright law found anywhere, allowing AI developers to ingest copyrighted content for AI training purposes subject only to a very few limitations, all of which are pretty minimal. These provisions were introduced back in 2021 when several changes were made to the Copyright Act, some, frankly, better than others from the perspective of rightsholders. The TDM exception is not among the more positive outcomes. It is made worse by a provision in Singapore law that, for all practical purposes, prevents rightsholders from exercising contract terms to prevent the unlicensed appropriation of their content for the commercial benefit of third parties, namely, AI developers.

The term used to describe text and data mining in Singaporean law is “computational data analysis”.  As explained in this law firm blog post, this is defined as including;

“using a computer program to identify, extract and analyse information or data from the work; (or) using the work as an example of a type of information or data to improve the functioning of a computer program in relation to that type of information or data – a specific example being the use of images to train a computer program to recognise images”

The exception also permits supplying the works to other persons, provided this is for the purpose of “(i) verifying the results of the computational data analysis carried out by the latter; or (ii) collaborative research or study relating to the purpose of such analysis carried out by the latter.”

This is simply commercial, unlicensed web scraping of copyrighted content for AI development by another name, with very few limitations.

Singapore is now contemplating opening that door even wider by permitting the circumvention of digital locks (aka Technological Protection Measures, or TPMs) to allow text and data mining for AI training, as I wrote about here. (Singapore’s New Copyright Act Three Years On: There’s No Need to Open the AI Exception Door Even Wider). This proposal needs serious reconsideration as it would seriously tilt the copyright balance in favour of AI platforms to the detriment of rightsholders.

Another example of Singapore’s increasingly permissive approach to copyright protection is its undermining of the sanctity of contracts by limiting contractual terms that prevent unlicensed and unauthorized use of copyrighted content. In other words, the Act limits the ability of contractual terms to protect against, or override, the TDM exceptions. Rightsholders cannot “contract out” of the exceptions.

This provision was included when the Copyright Act was last updated (2021). The list of exceptions that cannot be restricted by contract was expanded to include the exception for computational data analysis use, as well as a couple of other uses; use of a work in judicial proceedings or for legal advice, and functions of galleries, libraries, archives, and museums, the so-called GLAM sector.  The computational data analysis exception is the one of concern. It requires that to be enforceable, a contract that limits the ability of a user to scrape content must be individually negotiated. In other words, standard contract terms on websites that limit use (so called shrink-wrap or clickwrap agreements) cannot be used to override the TDM exception. This has the effect of rendering standard contractual terms virtually unenforceable. They become the exception rather than the norm.

The term “shrink-wrap agreement” was originally applied to the preprinted agreement included as part of the packaging containing a software program. By opening the packaging, the user agreed to comply with the licence terms of the software. The term has since been expanded to include “clickwrap agreements” that take effect when a user accepts the terms and conditions of a website. This can be used to specify that the content about to be accessed can only be used for certain purposes or under certain conditions. One of these conditions could be a restriction on use of unlicensed content for AI development. The Singapore legislation eliminates what is a standard practice used by rights-holders in many parts of the world to protect and control use of their content. It also means that robot.txt files used by rightsholders to signal that their content should not be freely scraped (compliance is voluntary) are unlikely to be respected in Singapore. Robot.txt limitations are often included in clickwrap agreements.

Not only does the Singapore law allow for a broad undermining of contractual terms, and prevents “contracting out”, but its TDM exception is very wide in terms of application. In the UK, while contractual terms cannot override the TDM exception, unlike in Singapore allowable TDM use is much narrower. The exception in the UK can be used only “for the sole purpose of research for a non-commercial purpose”. No such restriction exists in Singapore. In the EU, contractual terms can override the general TDM exception (Article 4), unless the unlicensed access is “conducted by research organisations and cultural heritage organisations” or is “for the purposes of scientific research”, (Article 3). In these limited cases only, the contractual override does not apply. This still provides broader protection for rights-holders, and where the contractual override is disallowed, it is for very limited purposes. This is a much more nuanced approach than the one adopted by Singapore.

Contract law is generally seen as the oil that lubricates the wheels of business. In the digital age, shortcuts in the form of clickwrap agreements have been used to convey contractual terms to users. In some jurisdictions, explicit consent is required by clicking “I Agree”. Singapore’s current copyright legislation undermines the sanctity of contracts by imposing unrealistic conditions, particularly with respect to limiting the rights of rightsholders to prevent web-crawlers from ingesting copyrighted content without licence or permission. To say this is problematic is an understatement.

Singapore can do better. As an exemplar of rule of law in the region, it should be as assiduous in protecting the rights of copyright owners as it seems to be in advancing the interests of AI developers. The motivation, apparently, is to promote “innovation”. This is a misread of what brings about innovation. True innovation comes with a partnership between rights-holders and users that protects and compensates rights-holders for the time, effort and investment they have put into developing content that is clearly of value to the AI community. That content should be licensed, or at the very least, rights-holders should be given the option to opt-out through the ability to enforce contract terms, including overriding text and data mining exceptions when necessary.

© Hugh Stephens, 2024. All Rights Reserved.

Distasteful Yes, But Not Copyright Infringement: Publishing “Basic Fact” Unauthorized Obituaries is Going Strong (And Often Getting it Wrong)

Image: Shutterstock.com (with AI Assist)

Tempus fugit. Time flies, as we all know. It’s hard for me to believe that it was over 5 years ago that I wrote a couple of blogs on obituary piracy;  (The Deadliest Aspects of Copyright and Obituary Piracy Punished: Has Infringement No Bounds?) Those blogs were about an outfit in Canada that styled itself Afterlife. Afterlife’s business model was to post obituaries on their site they had harvested from newspapers and funeral home websites in order to sell virtual candles, flowers and other forms of remembrance for the departed. Not surprisingly, families of those so featured objected since they had not authorized Afterlife to publish, let alone monetize, their personal tributes to their deceased family members. A class action lawsuit was launched, alleging copyright infringement since an obituary, a creative work embodying original expression, can be protected by copyright. It is the story of a person’s life, often written by a close relative or in some cases in advance by the deceased person themself. In the Afterlife case, the Federal Court of Canada awarded damages of $20 million and issued an injunction preventing Afterlife from continuing to publish.

In this case copyright infringement was the legal tool used to stop Afterlife’s activities. While the court case succeeded in getting Afterlife to stop what the judge called “obituary piracy”, those running the business simply changed tactics. They declared bankruptcy (no doubt to thwart any collection of damages) and opened a new site called Everhere. Everhere avoided copyright infringement by highlighting a death, but then linking to the obituary posted elsewhere without copying or reproducing it. Among other things, it became a specialized ad-supported obituary search engine. I lost sight of Everhere and its somewhat sleazy business model until unauthorized obituaries again hit the headlines in a recent story published by the Canadian Press.

This time the company is known as Echovita. At least some of the same people involved with Afterlife are apparently running Echovita, according to the Canadian Press report. Apart from the fact that families are upset that the passing of a loved one is being monetized by an unknown third party on its website, often to the surprise of friends and relatives who may have searched for the obituary on a search engine and not realized that the Echovita obituary is an unauthorized version, it appears that not infrequently mistakes are made. This is because in order to avoid its previous problems with copyright infringement, Echovita is doing quick rewrites of material it has skimmed from the internet. No doubt it is paying various freelancers by the piece to produce obituaries from so-called “tombstone data” (the basic facts of a person’s life), and the mass production of large numbers of these each day naturally leads to mistakes being made. The author of the Echovita obit doesn’t know the deceased from Adam. They don’t know if he or she had two or ten grandchildren, or none and, to be blunt, they don’t care. The obituary is just another commodity they are producing. They could just as easily be writing about soap flakes or breakfast cereal. In defending itself against accusations that it made mistakes in some obituaries, Echovita is reported as saying it regrets that it made a “human error” when taking the “basic facts” from an obituary posted on the internet, while noting that it was legal to do so.

Going to the Echovita site is instructive. Obituaries are not restricted to Canada. People using the website have the option of purchasing virtual candles that will “burn” for various periods from a week to a year, depending on payment and preference. The virtual candle will “burn” on the site of the barebones obit published by Echovita. You can also plant a tree or order flowers in remembrance. And there are ads for various things, such as Ancestry.com. It makes my skin crawl.

From a legal perspective (at least with regard to copyright infringement), Echovita’s claim that what they are doing is legal appears to be correct.  Facts and ideas cannot be protected, only the expression of an idea based on those facts or ideas. The same is as true for obituaries as it is with news. While the New York Times can copyright its reporting of, say, the war in Gaza, anyone can report on what is happening in Gaza. No news outlet has a monopoly on the news although they can protect their expression of the news, an issue I examined in this blog a couple of years ago, (Do News Publishers “Own” the News? (And Should They be Compensated when Others use News Content they Publish?). Distasteful as it seems, there is no law that I am aware of that stops Echovita or anyone else from taking basic data (facts) from a published obituary (name, date of death, place of service, etc) and rewriting and publishing it. Using it for commercial purposes might be something else. I wonder if the terms of service of a funeral home website might limit the lifting and reusing of this information for commercial purposes, but I will leave that idea for the lawyers to ponder.

According to the Canadian Press article, the president of the Funeral Services Association of Canada is lobbying the federal government to strengthen privacy legislation to deal with the republication of obituary details, but has had little response. I am no expert on privacy legislation, but I know it is a minefield where the need for personal privacy must be balanced against freedom of expression. In the meantime, the best solution the Funeral Association can offer is to contact sites like Echovita and ask that an unauthorized obituary be taken down, although they would have no incentive or legal obligation to comply.

Dealing with obituary piracy, whether officially copyright infringing or not, is a difficult issue. Undertaking reform will not be simple. Pardon the pun.

© Hugh Stephens, 2024. All Rights Reserved.

India: When Does a Religious Marriage Ceremony Become a Pure Entertainment Wedding Party? (With Copyright Consequences)

Image: Shutterstock (AI-generated)

Ah Goa!. Spectacular sunsets, beautiful beaches, fish curry and crumbling 16th century Catholic cathedrals deep in the jungle. I fondly recall a couple of visits in past years. While Goa has many attractions, it is the beaches that are the bread-and-butter of the tourist industry. A lot happens on those beaches, from sunbathing to windsurfing to…weddings. And with weddings, especially Indian weddings, comes music. (The recent $230 million Ambani wedding, was the epitome of the genre). All singing, all dancing, all the time. And that is where we take up our copyright story….

In what appears to be an overly zealous desire to promote tourism and economic activity, and perhaps to respond to complaints raised by some local musicians, the Goan state government in January issued a controversial declaration regarding music played or performed at wedding parties. No copyright would apply, no licence would be required and thus no royalties would be payable for the performance or playing of music at such events. Normally such royalties are collected by hotels from patrons organizing private functions and remitted to the relevant collective society. Moreover, according to the circular, any attempted enforcement of their rights by rights holders would result in police action to prevent collection.

My first reaction on reading reports of the case was, “how outlandish”. Why not issue an edict requiring hotels to rent their facilities for weddings at half price in order to promote tourism? Or pass a law insisting that wedding caterers provide free drinks for wedding guests to promote more weddings in Goa? A US comparison might be passage of a law by, say, Hawaii or Florida, forbidding the enforcement of copyright in music played at destination weddings in order to maintain the local tourism industry. In the US, we have seen several instances of state legislation that impinged on the federal copyright power being struck down by the courts. These had nothing to do with weddings (they related to the licensing of e-books), but you get the idea. A state level government cannot make or interpret law in an area of federal responsibility. It is the same principle in India. Yet as compelling as these arguments are (to me at least), there is some legal basis behind the reasoning of the circular, although the right of the Goan state government to interpret and enforce it is another matter.

The edict in Goa can be traced back to a Public Notice issued in July of 2023 by the Central Government’s Ministry of Industry and Commerce, in which it noted complaints from the public that copyright societies had allegedly been seeking to collect royalties for performance of music or playing of sound recordings at religious events, to wit, marriage ceremonies. That notice was based on an exception in the Indian Copyright Act, Section 52 (1) (za) that permits the playing or performance of copyrighted music without obtaining a licence at a ”bona fide religious ceremony”, including “marriage processions and other social festivities associated with marriage”. Does this include all singing, all dancing wedding parties spread over several days? I would have thought not.

Goa’s edict was challenged and adjudicated by the Bombay High Court. The Court accepted that the Section 52 exception applies to bona fide religious ceremonies including marriages, but challenged the wider interpretation encompassed in the circular issued by the Goan government. It also noted Goa had used the term “weddings” instead of “marriage”.

The Chennai-based intellectual property law firm, Selvam & Selvam, has published a good analysis of the case.  After the collecting society Phonographic Performance Ltd (PPL) and another plaintiff brought suit, the Court ruled that the Goan government’s circular was ultra vires. Legal interpretation of what constitutes a “bona fide religious ceremony”, as enunciated Section 52 of the Copyright Act, depends on case-by-case circumstances, according to the Court. Such a determination must be made by the courts, not by a state government. Moreover, directing the police to take action against rights-holders seeking to enforce their rights impedes enforcement mechanisms available to rights-holders under the Copyright Act. A clear-headed decision, I would say.

But this is not the first time such issues have risen in India. As Selvam’s points out;

“there is a pressing need for clearer guidelines that can help figure out the boundaries of copyrights in celebratory contexts. Ultimately, a well-defined approach to copyright in social festivities will not only protect creators but will also support the vibrant culture of celebration that defines India.”

Back in 2022, in a case also brought by PPL, the Delhi High Court appointed an expert, Dr. Arul George Scaria, to look into the implications of Section 52 (1) (za) for copyright holders and families organizing weddings. His lengthy report was sympathetic to a broad interpretation of the exception, arguing that under Berne it amounts to a legitimate “minor exception” while also noting the importance of music and cultural practices to marriage ceremonies in India. However, since the case was settled out of court, his report has had no direct impact on Indian jurisprudence in this area. By contrast, others have argued that the use of music at weddings goes beyond private, religious use since the wedding industry in India is highly commercialized. Some wedding events are spread over a number of days, up to a week, and involve many more than just a few friends and family. In effect, they become public performances.

India is not the only country to provide a copyright exception for music and sound recordings when used for religious purposes. It also exists in Canada (Section 32. 2 (3) of the Copyright Act) and in the US (Section 110 (3) of the US Copyright Act), and probably in many other countries. I am not aware, however, of any attempt to extend this exception to wedding parties, except in India.

Marriage ceremonies and weddings (the two may not be synonymous these days) are an important part of any culture, in India as elsewhere. Whether it is Mendelssohn’s Wedding March (long in the public domain I should add), a couple’s choice of contemporary music for their big day, or the latest Bollywood songs played by a DJ, music is an integral part of such events. When one hires a band or a DJ for a wedding reception here, usually the last thing the parents-of-the-bride think about is licensing the music (speaking from personal experience). Yet, DJ’s who use recorded music at events like wedding receptions (and other public performances) require a licence. Often the licence is covered by the hotel venue or the event planner so preoccupied parents or the couple themselves need not stress out too much. What is clear is that such music is not covered by the religious exception. This is where India seems to be a bit of an outlier.

But the law is the law and Section 52 (1) (za) is part of the Copyright Act of India. Defining where the limit between exercise of religion ends and pure entertainment begins should and will fall to the Indian courts, unless there is further legislation clarifying the intent of the Indian Parliament. The tourism promotion authorities at various sublevels of government should stay out of it. That seems to be the lesson learned in this case.

© Hugh Stephens 2024. All Rights Reserved

Canada (Finally) Does Something Right on Copyright Protection: According to US Study, Canada’s Site Blocking Process is Worth Emulating

Report Cover: Used with Permission of DCA

It is a foggy Friday when a report out of the US heaps praise on Canada for anything in the area of intellectual property. But surprise, it just happened! Canadians are more used to being chastised (often with good reason, I hasten to add) by US industry groups such as the International Intellectual Property Alliance (IIPA), or in the annual “Special 301” report issued by the Office of the US Trade Representative (USTR) which is compiled from complaints brought forward from various US industry groups. This year’s Section 301 report once again placed Canada on USTR’s “Watch List”. According to USTR, the Watch List is used to designate US trading partners that “merit bilateral attention to address underlying IP problems“. A perennial favourite on the Watch List, this year Canada joins 19 other countries including such IP powerhouses as Turkmenistan, Algeria, Belarus and Bulgaria (the only EU member state on the list). Is this an objective assessment? Maybe, maybe not.

It’s not that the US itself is purer than the driven snow (the snow no doubt being part of the “cold air from Canada” that features regularly on US weather reports) when it comes to IP protection. It’s just that USTR does not report on the US’s own transgressions, as it has no mandate to do so. I gave it a helping hand a few months ago when I filed my own Watch List recommendation, (The USTR Watch List Designation You Will Never See), which “playfully” (as one of my readers commented), put the US on the list for a range of copyright lapses. Among the most serious was a complete absence of any workable mechanism to block or disable offshore pirate content websites. I pointed out that the US is the largest market for pirated content globally, with 13.5 billion visits to pirate sites annually according to Variety, yet is one of the few not to have a system to disable distribution of pirated content from offshore, often known by the shorthand term “site blocking”.

I personally don’t like the term “site blocking” as it implies some form of government censorship. It should more accurately be called “disabling access to offshore pirate websites” but that is too much of a mouthful, so we will have to go with the shorthand version. Site blocking, which is practiced in more than 50 countries, including Canada, (but not the US) is normally instituted after a judicial or administrative process, requiring substantial justification, whereby content owners seek remedies against offshore websites (which are located in jurisdictions beyond the reach of domestic law) that distribute pirated content and undermine licensed distribution. The remedies normally involve injunctions requiring domestic internet providers to block identified pirate sites. It was pioneered by the UK and Australia, where it has been overwhelmingly successful in curtailing distribution of pirated content and encouraging uptake of legitimate, licensed alternatives.

In Canada, application for a blocking order is made to the Federal Court by content owners (such as Rogers or Bell Media), often to cover streaming of high-profile sports games. Owners of the sites to be blocked can appear and argue against the order, but being offshore pirate sites, none do. Once issued, ISPs (internet service providers), who are the actual targets of the orders, are obliged to disable/block the pirated content stream so that viewers cannot receive it. Originally some ISPs, notably TekSavvy, opposed the orders although the major ISPs, some of which are owned by the owners or licensees of the sports content, went along without a fuss. TekSavvy’s objections were dismissed, as I wrote about here (Appeal Against Canada’s First Successful Pirate Site-Blocking Order is Dismissed: Good News for Copyright Protection in Canada), and the process has become more or less routine.

Recently the regime in Canada has been strengthened by the granting of dynamic injunctions. Dynamic injunctions allow flexibility, targeting the content rather than a specific Internet address, thus allowing the blocking order to shift to whatever address the pirated feed is coming from. It is a common tactic of pirate sites to shift IP address regularly as one means of evading the court authorized blocking order. Dynamic injunctions help to counter this tactic.

If site blocking is such an essential tool in the anti-piracy toolbox, then why doesn’t it exist in the US, a country with a huge economic stake in the production and distribution of legitimate content, and unfortunately a market where piracy is as common or more common than in many other countries? US stakeholders tried, unsuccessfully, to secure passage of site blocking legislation more than a decade ago, with the introduction of the Stop Online Piracy Act (SOPA) into Congress in 2011. While widely supported by content industries and many members of Congress, it became the target of attack by cyber-libertarians stoked up by Silicon Valley. In an attention catching gimmick, Wikipedia and Reddit blacked out for a day, January 18, 2012, in protest. The legislation went into the “too difficult” basket and has never been revived.

The specious argument was put forward that SOPA would “break the internet” and interfere with the free flow of information. That was ridiculous then, and it is ridiculous now, as the successful establishment of site blocking in over 50 countries globally, including well established democracies such as the UK, France, Spain, Germany, Netherlands, the Nordic countries, India, Australia—and Canada—clearly shows. That point, along with data demonstrating the proven efficacy of site blocking, is among the key themes of a new study just published in the US by the Digital Citizens Alliance (DCA), commissioned from research firm IP House.

The DCA is a “consumer-focused group whose mission is to raise awareness among the public and policymakers about how to make the Internet safer”. Its latest report, “Overseas and Out of Reach: International Video Piracy and US Options to Combat It”, not only debunks the “break the internet” nonsense, but goes on to discuss the economic damage caused by pirate operations to legitimate business and government revenues. It also puts the spotlight on how piracy feeds revenue to organized crime, outlines the risk to consumers of clandestine installation of malware, explains how site blocking works, and documents the effectiveness of site blocking (as one essential tool among others) in combatting video streaming and Video-on-Demand piracy services. The unspoken bottom line message is that Congress should start looking seriously at reviving site blocking legislation.

To quote from the report’s introduction;

“The United States faces a problem. Overseas criminals targeting Americans often live in countries that won’t prosecute them or lack adequate legal tools to do so – leaving them beyond the reach of U.S. law enforcement and secure in the notion they won’t face any consequences for their illegal activity.  One example: Overseas operators of illegal piracy websites and apps make $2.3 billion a year – while also using that stolen content to bait Internet users so they can infect devices with malware or steal credit card information.

One solution adopted by Canada, the United Kingdom, and Australia and over 50 other countries: if they can’t reach the overseas criminals targeting their citizens to deter them, then they block the websites of those criminals so they can’t reach their citizens.”

So there you have it. Canada is cited as an exemplar in this regard. What a refreshing change. Let’s hope the study gets the attention it deserves in the US and in Congress because combatting piracy is something that is in everyone’s interest, from law enforcement to film and TV production to consumers.

Let’s be clear. Damage to US film and TV production hurts Canada, given the almost $8 billion that was invested in such production in Canada in 2023 by foreign, mostly US, producers. While the majority of it was foreign location and service (FLS) filming, it also included $1 billion in financing for Canadian owned content production. Canada may have managed to establish a workable site-blocking regime, using the courts, but there is still much more that needs to be done in Canada and elsewhere to combat the threat of online content piracy. The Overseas and Out of Reach study is a valuable contribution to this debate.

© Hugh Stephens, 2024. All Rights Reserved.

Indigenous Art and Cultural Appropriation: The Art Scandal Involving Fake Norval Morrisseau Works is Finally Coming to a Close

Credit: Ontario Provincial Police

It has been reported in the media that the “principal architect” of the Norval Morrisseau art fraud, one David Voss, has been sentenced to five years in jail for his role in this widespread and long-running criminal enterprise. Co-conspirator Gary Lamont is also serving 5 years. Six others, including some of those involved in producing and distributing the fakes, have also been charged. Hopefully this will bring closure to this high-profile art scandal, but a lot of damage has been done to Morrisseau, his legacy and to Indigenous art in general, as well as to collectors and the art market for Indigenous works.

In the past I have written about the challenges faced by Indigenous peoples and artists in protecting their works and cultural heritage (for example, here, here and here). Copyright provides an inadequate framework to protect works of collective traditional culture, an issue that the World Intellectual Property Organization (WIPO) is working hard to address. This year WIPO reached agreement on a new treaty covering genetic resources and associated traditional knowledge. Once ratified by 15 member states, the treaty will, according to WIPO, “establish in international law a new disclosure requirement for patent applicants whose inventions are based on genetic resources and/or associated traditional knowledge”.  It’s a start but, to the disappointment of some, what it does not do is address the issue of “traditional cultural expression”. Earlier drafts of the treaty went beyond genetic resources to include means to protect and control traditional cultural practices and knowledge, such music, dance, art and handicrafts. This would have given Indigenous peoples the ability to preserve cultural integrity as well as rights of attribution. That apparently was a step too far, but if the treaty dealing with genetic resources enters into force, this could give impetus to further diplomatic work to develop a treaty covering traditional cultural expression.

Cultural appropriation and borderline copyright infringement is particularly prevalent when it comes to the visual arts. Indigenous artists, although entitled to copyright protection on their individual works, have nonetheless found lookalikes marketed as native works, although most such knock offs do not normally infringe copyright because they are not reproductions of the work of any individual artist. Rather, they are cheap copies of a genre. What is being infringed is a cultural tradition, and is a pervasive form of cultural appropriation. While knock-offs and lookalikes are one thing, out and out art fraud is even more outrageous. The most high profile example is the art fraud scandal involving the late Anishinaabe (Ojibwe) artist, Norval Morrisseau, who is the ultimate victim.

Morrisseau, who died in 2007, is best known as the founder of the Woodland school of art. A self-taught artist from northern Ontario, he went on to great heights artistically and to some lows personally, including struggles with alcoholism and addiction. Labelled by French modernist artist Marc Chagall as the “Picasso of the North’, Morrisseau was a prolific artist who at times is known to have sold some of his works for a pittance when financial need presented itself. This laid the foundations for an audacious and long-running scheme, dating back to the late 1990s, to produce fakes of Morrisseau’s works, some of which have been displayed in prominent galleries and which have sold for considerable sums. These are not clever forgeries of Morrisseau works, they are outright fakes, works that were never produced by him but which replicate his style and were amazingly “found”, stored in abandoned garages, barns and auction houses. The fraud continued after Morrisseau’s death, reaching an industrial-scale with fakes in the thousands flooding the art market. Writer Luc Rinaldi, writing in The Walrus has an excellent summary of Morrisseau’s background and the complicated and long running fraud investigation and trials.

The case itself is a cautionary tale for art collectors. For years, rumours had been whispered about Morrisseau fakes circulating in the art market. In 2012 a prominent musician but novice art collector, Kevin Hearn, learned he had been ripped off over a supposedly genuine Morrisseau work. It was not until he sued the seller, the Maslak McLeod Gallery in Toronto, for selling him the fake work along with providing a fraudulent certificate of provenance, that things really got serious. Hearn lost the first round when the judge declared he could not determine conclusively if the work in question, Spirit Energy of Mother Earth, was a fake although he accepted that fraudulent works were being produced on a large scale. Hearn appealed and this time was successful, winning a $60,000 judgment against the gallery which, according to press reports, has never been paid. No matter. For Hearn it was vindication.

At the time the trials were being held, filmmaker Jamie Kastner was making “There Are No Fakes”, a two hour documentary about the fraud, featuring some of those who actually painted the fakes, gallery owners (some of whom have lost their reputation; one has been charged as part of the fraud), art experts, lawyers from both sides, friends and associates of Morrisseau-the full panoply. The film also delved into the dark side of the fraud; the drug dealing and sexual abuse engaged in by one of the main organizers of the scheme. There are other backstories in the film as well, defamation suits and harassment. Some owners of what have turned out to be fakes were determined to deny the truth, either because they refused to believe they had been hoodwinked or to protect their investments. All in all, it is a pretty sordid tale.

What the film did, however, was to provide a road map for the police who, until this time, had turned a blind eye to this “white collar crime”.  Spurred on by the film, the Thunder Bay Police Service along with the Ontario Provincial Police finally dedicated the resources necessary to go after the perpetrators, who had more or less been hiding in plain sight. For years the excuse in the art world was, “No one has ever proven in court that any of the works are fakes” (thus the name of the film). The end result, so far, is the conviction and jailing of the two main architects of the fraud, lesser penalties for others involved and pending trials for still others.

The eventual bringing to justice of the lead perpetrators involves more than just clamping down on white collar crime and bringing justice, of sorts, to collectors and art museums. It also finally tackles the issue of cultural appropriation. There is no doubt that Morrisseau’s work has been tainted and his legacy damaged. Not only that, the spirituality and personal expression that he incorporated in his work has been denigrated and reduced to lines on canvas devoid of any deeper meaning. As reported in The Art Newspaper, Kevin Hearn in his victim impact statement said of Voss, the convicted perpetrator, “His calculated fraud has not only stolen and utilised Norval’s identity as expressed in his work, Voss has also exploited the art world and Indigenous culture.”

It is difficult for Indigenous artists to protect their work and to earn a respectable living from it. Fighting an influx of fake native art cheaply fabricated in Asia is an ongoing problem, especially when the problem is more one of cultural appropriation than direct copyright infringement. In Canada, unlike the US, there is no legislation to prevent non-Indigenous works from being passed off as Indigenous created. But there is also copyright infringement where the work of native artists is hijacked and reproduced without permission or attribution, often in the form of paintings, artwork and clothing designs sold on the internet. And then there is outright fraud, as practiced in the Morrisseau case, where the integrity of the oeuvre is undermined by the proliferation of fakes.

Hopefully now that the fraud has been proven beyond any doubt, and a technical means established to differentiate the fakes from the real (the fraud became so widespread that the perpetrators resorted to a “paint-by-numbers” process, which can be identified through infrared technology), the genuine works of Morrisseau will speak for themselves even louder. After two decades of skullduggery, it took a high-profile civil trial and an award nominated documentary film for the wheels of justice to finally turn and bring closure to this sordid, complex and unhappy story.

© Hugh Stephens, 2024. All Rights Reserved.

When a Trademark is Not a Copyright

Image: Shutterstock

A trademark is a combination of letters, words, sounds or designs that distinguishes one company’s goods or services from those of others in the marketplace.

Copyright is the exclusive legal right to produce, reproduce, publish, distribute or perform an original literary, artistic, dramatic or musical work.

Since this is a copyright blog, I am guessing that most of my readers will be saying to themselves, “I know the difference between trademark and copyright; doesn’t everyone?”. Everyone does not, and this can lead to considerable confusion especially when the media use the two terms loosely or interchangeably. Moreover, it is not surprising that there is often confusion between these elements of intellectual property (IP) protection since there can be considerable overlap between the two.

Since the publication of my book, “In Defence of Copyright”, I am often asked to speak to various groups on the subject. One of the first things I do is to ask my audience if they can explain the differences between copyright, patents and trademarks. Many are confused. As part of the discussion, I will point out the essential difference between counterfeited (fake) and pirated (genuine but stolen) products. We can blame the media for loose use of IP terms, but there is also the overlap factor that can also cause confusion, as I discussed in a recent blog post on board games. A commercially marketed board game can be protected by all three elements of IP, a patent, a trademark and copyright (for certain elements of the game).

The annual post-Christmas public domain feeding frenzy (which I have written about in the past) went into overdrive this year over the entry of Disney’s Steamboat Willie cartoon feature into the public domain in the US on January 1, 2024. (Note, that Willie was already in the public domain in Canada, and had been for two years, a fact that escaped journalists in the Canadian media, as well as some Canadian law firms, who needed something to write about in early January without doing much research). But just because the 1928 version of Willie is now in the public domain in both countries (i.e. not subject to copyright protection), don’t think that you can go out and market Mickey Mouse dolls. They are protected, like all of Disney’s character repertoire, by trademark registration. While copyright will lapse after a specified period, a trademark registration will not as long as it remains in use and is renewed periodically. Trademark and copyright protection co-exist, which may in part explain the public confusion.

In one famous case, a trademark was challenged on the basis of copyright. Nike’s famous “Jumpman” logo used to market its Air Jordan brand of shoes was allegedly based on a 1984 photograph taken while Jordan was a student at UNC by Life photographer Jacobus Rentmeester. (Jordan was wearing Converse sneakers in the photo). After Jordan entered the NBA and signed an endorsement contract with Nike, the shoe company’s ad agency developed the iconic logo of Jordan leaping through the air on his way to another dunk. According to Rentmeester’s claim, as reported by CNN, he created “a never-before-used pose, inspired by ballet, to generate Jordan’s appearance of weightlessness and power”. The photo certainly became famous. Thirty years later Rentmeester (who presumably had been unsuccessful in negotiating a licence agreement with Nike), sued for copyright infringement. He lost. The court ruled that there were enough differences between the Nike logo and Rentmeester’s photo that the two were not substantially similar.

A British court in the well-known “London Bus case” found differently. New English Teas, a registered trademark, commissioned a photo of a red London double-decker bus against a monochrome grey background of the Houses of Parliament and Westminster Bridge to be used to decorate their tins of tea, marketed largely to tourists. However, the photographer hired to do the work copied the essentials of an earlier photograph by another photographer, using the same elements although not exactly the same composition. Both photos were produced using photoshopping and editing. The tea company, which was the defendant, argued that anyone could take a photograph of this iconic location, with a similar iconic symbol of London. They argued there could be no monopoly on such photos. The judge, however, found that the second photographer had had access to the prior work of the plaintiff, and had copied a substantial part of his work. Note that New English Teas will sell you its teas in just about any kind of decorated tin, including Disney’s Winnie the Pooh, Warner’s Harry Potter (both suitably licensed), the Royal Family and London sights, including the photo in question. They must have settled with the photographer.

More recently the copyright/trademark confusion came on to my radar with all the fuss about the phrase, “Very Demure, Very Mindful”, popularized by TikTok social media influencer Jools LeBron. Fox News headlined that “TikTok influencer discovers someone else copyrighted her viral phrase”. LeBrons’ use of the phrase caught on in social media, and she had plans to commercialize it. However, someone apparently beat her to it. As Fox put it, “a Washington-state man copyrighted the phrase first, seemingly locking her out (of?) any possible payday”. But as we copyright aficionados know, you can’t rush to copyright something “first”. Copyright exists from the moment it was created, assuming it is a fixed, original expression of an idea. Registration is not required, although in the US if you intend to bring a suit for copyright infringement, registration is necessary. (If there were two conflicting registrations of the same work, that would be interesting. The US Copyright Office would have to sort it out). Nor can you copyright a relatively common phrase like the one in question. The Demure/Mindful issue was not about copyright at all, but rather all about trademark registration. While Fox News got it wrong, kudos to the Associated Press who a few days later put out a detailed article pointing out the trademark implications of the “Very Demure, Very Mindful” dispute, noting that “Trademarks should not be mixed up with copyright”.  It appears that the case will have a happy ending because, according to Lebron, something was apparently worked out.

But can you trademark a phrase such as “Very Demure, Very Mindful”? Yes, you can, but it depends on how it is used. Nike’s famous phrase “Just Do It” has been trademarked since 1995. Of course, you can say, “just do it”, but don’t “just do it” to market athletic equipment. I am by no means an expert in trademark law (copyright is complicated enough, and I am still learning) but there are some basic principles to bear in mind. A trademark has to be used to be protected (you can’t just squat on it and not use it),  it must be registered and renewed periodically (in most countries it lasts for ten years), it is restricted to product categories where there are actual products being marketed (which is why, for example, Delta Airlines, Delta Laundry and Delta Nail Salon can co-exist) and it is geographically restricted. Thus Budweiser does not own the mark when it comes to beer in Czechia because the brand was registered many years ago by a different company, while the Czech version (Budvar) has to be marketed in the US as Czechvar.

When Target, the large US department was about to embark on its disastrous foray into the Canadian market, it found that someone else owned the Target brand (for clothing retailing) in Canada. Target was targeted (sorry) with a $250 million lawsuit by Canadian clothing retailer Fairweather who sought an injunction restraining Target’s use of its name in Canada. Target appealed but lost in the preliminary rounds. As the dispute was blocking their (spectacularly unsuccessful) launch in Canada, they settled and Fairweather agreed to give up the name, although Target probably now regrets ever having considered its expansion into the Canadian market—and spending good money to get their name registered in Canada.

So, the next time you read that there was a copyright dispute over the use of a certain name, or product, or even catch-phrase, take it with a grain of salt. It was likely a dispute over a trademark, not over an expression of an idea. A trademark can be many things. The US Patent and Trademark Office gives as examples, “a word, slogan, design, or combination of these…even…a sound, a scent, or a color”. However, even if it was “just” a trademark dispute, there could still be copyright elements associated with it. The two are cousins, and along with other elements of intellectual property (patents, industrial designs, geographic indications, trade secrets), all of which have their own distinctive features and terms of protection, protect innovation, creativity, distinctiveness and commercial value. Weakening one weakens them all.

(c) Hugh Stephens, 2024. All Rights Reserved.

Based on feedback from some readers, I have added definitions of trademark and copyright at the beginning of this blog post. The definitions are adapted from the website of the Canadian Intellectual Property Office.

Singapore’s New Copyright Act Three Years On: There’s No Need to Open the AI Exception Door Even Wider

Image: Shutterstock (modified)

The 2021 Revisions

Back in 2021 I wrote a mixed review of the revisions brought in to update Singapore’s Copyright Act. There were some significant positives for rights-holders, notably a new provision that made it illegal to sell ISDs (Illicit Streaming Devices, i.e. specially configured set top boxes) and associated software applications that offered access to pirated content (movies, television shows, sports events), or to advertise that the devices provided access to such content. Until the new law was brought in, Singapore had been a hotbed for streaming piracy with set top box retailers exploiting loopholes in the law to openly advertise and sell devices that could easily be modified to access pirated content. The ISD situation has improved markedly although illegal streaming of sports content remains a problem, with blocking of illegal offshore streaming sites (site blocking) being one solution. There were some other upsides for rights-holders as well, such as enhancing creator’s rights through a new right of attribution and providing a new public performance remuneration right for sound recordings. However, there were also some potential concerns and warning signs with regard to a broadening of copyright exceptions.

The Text and Data Mining (TDM) Exception

Some of the exceptions related to use by schools, galleries, museums and archives, and were suitably constrained to avoid negative commercial impact on content providers. Another more controversial exception was a Text and Data Mining (TDM) exception for “computational data analysis”. This was defined in the legislation as including the use of a computer program to identify, extract and analyze information or data from a work. Training for machine learning was used as an example. To me, that sounds a lot like scraping content to train AI algorithms. The 2021 TDM exception applied to both commercial and non-commercial uses (in many jurisdictions there are either no specific exceptions for TDM, as in Canada, or the use is limited to strictly non-commercial research purposes, as in the EU, where there is also an opt-out provision for rights-holders). The Singapore TDM exception is one of the broadest exceptions for AI training purposes anywhere. While it does have some safeguards, they are minimal.

Lawful Access Required

These safeguards require that the user have lawful access to the work. If the work is protected by a TPM (Technological Protection Method, aka digital lock) such as a paywall, and if the TPM is circumvented, or if the original was obtained from an online location known to have flagrantly infringed copyright, access would not be lawful. The Copyright Fact sheet explanatory brochure published by Singapore’s Intellectual Property Office provides the following illustration of this;

“A company is developing an artificial intelligence programme that can translate books from one language to another. To do so, the company carries out processes which involve making copies of various books in order to “teach” the programme how to recognise patterns. The company may rely on this exception to make the copies without first obtaining permission from the copyright owners of the books, provided that the company complies with the other conditions under this exception, such as not using the copies for any other purpose apart from computational data analysis. Moreover, the company must have lawful access to the materials that it copies. This means that it must first purchase the books it wants to use or subscribe to services that provide it with access to those books. The company should not circumvent paywalls to access the books.”

But Lawful Access Protection is Thin

Even this degree of protection does not really offer much comfort. For example, lawful access can be obtained by purchasing the cheapest or lowest minimal access possible and then using that access to justify commercial exploitation. Or, as in the example above, the company could purchase exactly one copy of each book that it wants to ingest. In the case of a paywall, instead of purchasing an institutional subscription, an employee of a company could purchase a single, individual subscription, gain lawful access and then proceed to exploit the content without licensing it. This is similar to the situation faced by the online journal in Canada, Blacklock’s Reporter, (which I wrote about here) where an employee of a government agency that employs 6000 people purchased a single subscription for about $150 and then shared the password for that subscription with whoever in that agency felt they needed access to the paywall-protected content. The Federal Court of Canada, in a controversial decision that is being appealed, found there was no infringement because the access was licitly obtained, and the use complied with fair dealing criteria.

Singapore has yet another loophole where an unlicensed user can mount an “I didn’t know” defence. Under the current law if the user did not know or could not have reasonably known that the copy of the work they were using was infringing, they could get a pass. (Gee, I didn’t know…and I didn’t try very hard to find out). Under another subsection, even if the first copy is an infringing copy “but the use of infringing copies is necessary for a prescribed purpose” and if the user “does not use the copy to carry out computational data analysis for any other purpose…”, a further exception to lawful use is created. In other words, using pirated content for TDM purposes is okay if the circumstances are right. All in all, the existing protection for rights-holders under Singapore’s laws is exceedingly thin.

Proposed Circumvention of Digital Protection for TDM Purposes

With respect to Text and Data Mining, this is the situation that has prevailed from 2021 until now. The exception was very broad but had some minimal guardrails (a requirement for legal access, with some exceptions) that provided a thin layer of protection for creators and content rights-holders. Now, however, even that minimal layer of protection is under threat. Pushed by the AI crowd, Singapore is now proposing to legalize circumvention of a TPM/digital lock for computational data analysis. In a consultation paper issued in April, the Ministry of Law sought input on the existing exceptions that currently allow for circumvention of digital locks (these include use of obsolete software, use of assistive technologies for audio and ebooks, educational uses of films in certified media courses, use of film clips for criticism or review in the making of a documentary, and a couple of others). Under the legislation, these must be reviewed every four years.

In addition to the review of existing exceptions that allow for the breaking of a digital lock, the Ministry is proposing three new purposes, on the premise that “circumvention should be allowed for… situations where access control measures are considered to adversely impair legitimate, non-infringing uses”. The new proposed exceptions to the prohibition on circumvention relate to use of copyrighted materials in a public collection for purposes of preservation and replacement, or for administrative purposes, (both unobjectionable) but also use of copyright works and protected performances for computational data analysis. In plain language, under this last provision, it would be legal in Singapore to hack a TPM (digital lock) that has been created by an author to protect access to copyrighted content as long as the intended use was for AI training purposes! Frankly, that is outrageous, and basically strips copyright owners of their rights to their property.

Of course, that is not how the Asia Internet Coalition sees it. Its brief to the Ministry it states that;

“The absence of an exception for computational analysis creates a disjointed regulatory landscape where conflicting laws may grant Text and Data Mining (TDM) rights but simultaneously prohibit their exercise. This ambiguity risks stifling investment and innovation in AI technologies. We emphasize the need for clear and coherent TPM laws that explicitly allow circumvention for fair use and TDM exceptions, ensuring legal certainty for stakeholders.”

The only “ambiguity” in the current law is that access must be lawful and hacking a digital lock to access the content renders the access unlawful. The AI crowd wants to strip away the sole, already-inadequate remaining protection for rights-holders.

Protecting TPMs (Digital Locks) and International Trade Commitments

On the other side of the equation, various rights-holder groups have weighed in, including IFRRO, the International Federation of Reproduction Rights Organizations (no, nothing to do with fertility or childbirth), the IIPA, the International Intellectual Property Alliance, the Copyright Alliance and the European Publishers Council, among others. IFRRO has based its comments on the lawful access argument. To hack a TPM that is protecting access to content is the antithesis of lawful access. Legalizing burgling doesn’t justify burgling. (My words, not IFRRO’s). IFRRO also points out that unduly permissive regimes have been rejected elsewhere, citing the EU and UK, and that they do nothing to sustain creative ecosystems over the long term. In addition to these arguments, the IIPA and the Copyright Alliance, both US based organizations, cite the 2004 Singapore-US Free Trade Agreement. That Agreement provides for a specified list of exceptions to the anti-circumvention rule (text and data mining is not among them) and while additional “temporary” exceptions (up to 4 years) are allowed, they must “not impair the adequacy of legal protection or the effectiveness of legal remedies that the Party (ie Singapore) provides against the circumvention of effective technological measures.” (Article 16.4.7 (f)).

There is also concern that, if adopted, the legalization of circumvention for AI scraping would violate the “three step test” of the Berne Convention, to which both Singapore and the US are parties. That provision requires that any exceptions to copyright protection be limited to (1) “certain special cases,” (2) “provided that such reproduction does not conflict with a normal exploitation of the work,” and (3) “does not unreasonably prejudice the legitimate interests of the author.” To strip away TPM access control protection for a copyrighted work so that another party can use the content for commercial purposes would clearly, in my view, be a violation of these terms of the Convention. That said, I am only aware of one situation where the three-step test has actually been litigated under WTO dispute settlement rules.

Don’t Throw Singapore’s Creators Under the Bus

Will these interventions have the desired effect of preventing the door allowing AI copyright exceptions from being kicked open even wider in Singapore? One would hope so, for the sake of creators everywhere, including those in Singapore. Throwing the creative industries under the bus to promote “innovation” in the name of generative AI development is a shortsighted and ultimately counterproductive strategy. One would hope that reasoning would have as much or more impact on Singapore policy makers as references to clauses in the US-Singapore FTA, but all arguments count.

Singapore’s Copyright Act review exercise needs to result in a balanced approach that protects creative industries while allowing for text and data mining within reasonable limits. The TDM exception door is already open very wide.  Kicking it open even wider would be a serious policy mistake.

© Hugh Stephens 2024. All Rights Reserved.

Tech Platforms and News Media: California Cuts a Deal with Google, While Meta Walks Free

Image: Shutterstock (AI assisted)

The ongoing financial tug-of-war between large tech/social media platforms and news media outlets, with governments trying to play a mediator/arbitrator role, has taken another turn with the announcement that California has cut a deal with Google, similar in principle to the one reached in Canada at the end of last year. When Google was fighting being subjected to regulation in Canada under the Online News Act, Bill C-18, it was glancing over its shoulder at impending developments on its own home turf, California. The California Journalism Preservation Act would have instituted a regime similar to that originally proposed in both Australia and Canada by requiring Google to negotiate agreements with news content providers, compensating them for Google’s use of news content links.

The California bill is similar to draft US federal legislation introduced, but not adopted, in the 2022 session of the US Congress. That legislation would have given news media enterprises an exemption from anti-trust laws allowing them to negotiate jointly with the tech platforms while specifying requirements regarding the negotiations, including arbitration in certain circumstances. (That draft US federal legislation made it difficult for Google to enlist the support of the US Government in opposing similar legislation in Canada, as I wrote about here). Google didn’t like the draft legislation in the US one bit and employed various measures to try to stop it. In California it threatened to drop news from Search, (as it did in Canada) and, similar to its tactics in Canada, it trialed blocking links to news sites for some users.

As most readers will know, and as I have written about on several occasions, Google played hardball in Australia and Canada, but in the end came to an accommodation of sorts. In Australia it reached unspecified content deals with the majority of Australian media players. In Canada, in return for avoiding designation under the Online News Act, Google agreed to contribute CAD $100 million (about US$75 million) annually to a journalism fund to support news media outlets, both print and broadcast. While the result was not what the government or the news media had originally expected, it was certainly better than nothing. It was not all “new money”, however, as Google had previously signed some voluntary content deals in a vain attempt to head off the legislation. This pre-existing funding will now be rolled into the $100 million fund. The voluntary deals will be wound up, thus putting an effective cap on Google’s contribution. Its tactics in Canada demonstrate that Google will do just about anything to avoid being made to share revenues for linking to the content of others, seeing this as an existential threat to its business and operating model. The same applies in California.

In return for withdrawal of California’s original legislation—which would have subjected links to compensation—Google has agreed to ante up approximately US$55 million over 5 years to be put into a fund to be managed by the Graduate School of Journalism at the University of California, contingent on the California legislature also contributing $70 million to the fund over the same period of time. That outcome is by no means guaranteed as the funding must be approved by the state legislature each year. In addition, according to the New York Times, Google has undertaken to provide approximately $60 million over 5 years to an AI Innovation Accelerator Fund, plus maintaining its existing $10 million annual support payments for journalism. That is pretty small change for Google. California’s population, at roughly 39 million, is almost exactly the same as that of Canada although California’s GDP is roughly twice as large. Taking that into consideration, maybe Canada did not fare so badly in getting Google to contribute $100 million (CAD) annually.

While Google and the California legislators who brokered the deal were touting its benefits, it received a mixed reaction from some publishers and outright condemnation from unions representing journalists and staff working at news outlets, who called it a “shakedown”. Meanwhile, Meta (Facebook) appears to have walked away scot-free. Meta was one of the targets of the original California legislation, as it was in Australia and Canada. Meta has claimed it gets no value from news links and in Canada “complied” with the Online News Act by blocking news links, thus eliminating any obligation to pay for news content. The result has been perverse, with non-news outlets, like a garbage disposal company in Saskatchewan being allowed to post news to Facebook because technically it is not a news provider, while legitimate professional journalism outlets are blocked. While Meta initially reached some content deals in Australia after its blockage of news content blew up in its face, it is now busy terminating them as renewals come up. The Australian government will have to decide whether to bite its tongue and do nothing or call Meta’s bluff. If they do, there is every likelihood that Meta will block news for Australian users as it has done in Canada.

There are still voices in California calling for ways to “encourage” Meta to make a financial contribution to news media, and the Google offer is not a completely “done deal” although it has support from the Governor of the state. With the California domino having fallen, government attempts to bring Google to heel seem to have sputtered out, at least for now. The Journalism Competition and Preservation Act in the US Congress appears unlikely to go anywhere. The UK is still trying to figure out its approach, as MediaPolicy.ca reported last week. Google and Meta appear to have successfully stared down sovereign governments at the national and state level. While Meta appears to have completely closed its wallet, Google has negotiated payments it can live with as part of the cost of doing business. And given the scale of its business, the amounts it is throwing on the table are exactly that, a business cost that is a small price to pay for its dominant quasi-monopolistic grip on the online advertising market which, at its most basic level, is a vehicle to provide access to content generated by others.

© Hugh Stephens, 2024. All Rights Reserved.