Tag: Copyright

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.

Does the Trudeau Government Really Support Canadian Media? Saying One Thing but Doing Another (It’s Time to Walk the Talk)

Image: http://www.shutterstock.com

A couple of weeks ago I provided my interpretation of the results of the recent Federal Court case, Blacklock’s Reporter v Attorney General of Canada. My main objective was to call out the twisting of that decision by those claiming the result means that fair dealing trumps the protection provided under the Copyright Act to TPMs (Technological Protection Measures, aka “digital locks”). In other words, debunking the assertion that as a result of this decision, it is legal for a user to bypass or circumvent an access control TPM in order purportedly to exercise their rights under fair dealing. As I explained, the court did not so rule for the simple reason that it concluded that the user, a Parks Canada employee, did not circumvent the TPM because she had obtained access licitly through purchase of a subscription. The issue at bar was that the password thus obtained was then shared with a couple of dozen or so other employees of Parks Canada and other Canadian government departments for “research”, an identified fair dealing purpose.

The judge concluded that the terms of the subscription were sufficiently ambiguous to permit the interpretation that sharing the password was not an infringement, and thus did not constitute circumvention. He was also unwilling to conclude that a password constitutes a TPM, absent expert testimony. He then went on to assess whether the use fell within the four corners of fair dealing, concluding that it did both in terms of purpose and form of use. As controversial as this decision may have been in terms of determining that sharing a licitly-obtained password granted for a single subscription was not an infringement because the end use was fair, as well as failing to accept that a password authorized by the copyright owner that controls access to content is not a TPM, the decision nonetheless did not legitimize the circumvention of a TPM on the basis of fair dealing. Thus, I concluded the Court had upheld the principle that fair dealing does not trump a TPM, or, put another way, the Court did not overturn that principle.  

Then, noted copyright lawyer Barry Sookman weighed into the debate, posting his views on the decision, “Understanding subscription licenses, fair dealing and legal protection for TPMs in Canada: A critical commentary of the Blacklock’s Reporter Parks Canada decision”. Sookman’s legal deep dive into the case is a much more detailed analysis than my own although he also concludes that, among other things, the decision did not rule that fair dealing trumps the Copyright Act’s anti-circumvention prohibition regarding TPMs. He also disputes the Court’s fair dealing analysis, concluding that since access was not licitly obtained, there can be no fair dealing. According to his analysis, it was not obtained legally because there was breach of contract. Based on his review of contract law and precedents, Sookman concludes (unlike the decision reached by the judge in the case), that Blacklock’s Terms of Service were binding on Parks Canada. You can read his arguments for yourself.

One sure way to know how persuasive these points are would be for Blacklock’s to appeal the case, although this seems unlikely unless a source of funding appears. As Blacklock’s noted in a posting shortly after the decision was announced,

“We are a small business like a million others. We have spent eight years and $538,665 fighting the Attorney General and Federal Court to uphold property rights. FC 829 should be appealed to the Supreme Court, but large corporations and trade associations relying on electronic commerce cannot leave it to Blacklock’s alone to litigate the definition of “password” in Canada in the digital age. Parties interested in joining an appeal with financing should contact counsel: Scott Miller, c/o MBM Intellectual Property Law. 275 Slater Street, 14th Floor, Ottawa K1P 5H9.”

Will anyone step forward? The Attorney General for Canada has deep taxpayer-funded pockets. Blacklock’s does not. This is David v Goliath.

Sookman’s analysis suggests there are solid grounds for an appeal, but to me the most important element of his blog post relates to policy direction rather than legal arguments. He concluded his analysis by noting the discrepancy between the Government of Canada’s aggressive pursuit of Blacklock’s and its professed support for Canadian journalism. The government, through the Attorney General of Canada (AGC, i.e. the Department of Justice), not only very aggressively defended the suits Blacklock’s brought against government departments but went beyond a defence, seeking a declaration from the Court that a password is not a TPM and that its use does not constitute circumvention, in effect seeking to gut the TPM provisions of the Act. (The Court declined to make such a declaration). Moreover, when Blacklock’s tried to discontinue the action, the government continued to pursue the case, instituting a motion seeking declaratory relief that the Agency did not breach Blacklock’s Terms of Service or infringe copyright based on a fair dealing defence.

This is the same government that constantly speaks of the need to maintain a viable media sector and which has undertaken several initiatives with the declared intent of doing so. Perhaps the most visible, and possibly most controversial, is the Online News Act, Bill C-18, that sought to impose an obligation on large US-based social media platforms, to wit Google and Meta (Facebook/Instagram), to negotiate good faith content sharing agreements with Canadian media for the platforms’ use of news content, failing which the government would impose binding arbitration. Most people are familiar with the decidedly mixed outcome of that exercise, with Meta “complying” with the legislation by blocking links to Canadian news content on its sites while Google agreed to contribute $100 million annually to media in Canada, to be disbursed through a hastily formed entity, the Canadian Journalism Collective. The funding subsumes Google’s earlier voluntary licensing agreements with some media companies. The Collective is expected to dole out about $17,000 annually per working journalist from this fund. Meanwhile news links remain blocked on Facebook and Instagram.

Another government attempt to obtain additional funds comes through a second recently passed piece of legislation, the Online Streaming Act, Bill C-11. The CRTC has taken early action to require an initial “downpayment” from foreign streaming services operating in Canada, part of which will go to support the Independent Local News Fund. Then there are tax credits such as the Canadian Journalism Labour Tax Credit for a QCJO (Qualified Canadian Journalism Organization).

There has been some pushback against financial support for media from governments, streamers, and social media organizations, primarily from a few prominent journalists worried about compromising the independence of the Fourth Estate. See Andrew Coyne’s recent comments (“Please stop helping us: the newspaper bailout is a comprehensive policy failure”) in the Globe and Mail. Although many in the media industry do not agree with his perspective, Coyne has a point. The media, newspapers like the Globe and Mail and National Post, specialized journals like Blacklock’s, recreational publications like the Walrus or Maclean’s, or various other online publications, should be able to stand on their own feet and earn revenue from the valuable content they provide. If that content is not worth paying for in the eyes of consumers, why produce it? But a business model that is based primarily on getting paid by consumers for the content they consume is not viable if media products are free for the taking by anyone claiming “fair dealing”. That is nothing but a licence for piracy.

If you click on the link to the Coyne opinion piece above, unless you have a digital subscription to the Globe, you will run into their paywall. You will be invited to register for a few free articles, but more specifically you will be encouraged to subscribe, with a very attractive initial offering (at the moment, $7.96 a month, before tax) that after a set period of time will revert to the more normal subscription price of about $32 a month. That is how the Globe can afford to pay Coyne and run its business. You can even use the Globe content that you access through your paid subscription for fair dealing purposes, for example by making a copy of a reasonable amount of that content for research, private study etc. However, it you were an employee of a large organization, (like a federal government agency or department for example), and a number of employees of your organization needed access to the Globe to stay current on issues, to track what the public is reading, or to anticipate questions that ministers might be asked, etc., one would normally expect that rather than having just one subscription for members of that organization, there would be an institutional subscription that reflects the true usage of the content. For example, Parks Canada has almost 6000 employees. The federal government in Canada has almost 300,000. A smaller organization, like the Department of Canadian Heritage, (that is spearheading policy initiatives to “save” journalism in Canada) has almost 2000 employees. Some specialized agencies (Copyright Board of Canada, for example) have just a handful. (The Copyright Board has 25). One would expect that an institutional subscription would be tailored to the number of users.

One would not expect that a large government department would purchase exactly one (1!) subscription and freely share it among any employees who might need access to the content, using fair dealing as the pretext. But that is what happened to Blacklock’s Reporter. That is what Department of Justice lawyers, representing Parks Canada, (an agency of the Government of Canada, the same government that is touting its support for professional journalism because of the important role it plays in our democracy) argued was their right to do. Rather than siccing the legal dogs from the Justice Department (representing the Attorney General of Canada) on a news organization like Blacklock’s that investigates and reports on what is going on in Ottawa, the Government of Canada should walk the talk of its policy to support responsible journalism in Canada and pay fairly for the content it uses rather than hiding behind a specious expansive interpretation of fair dealing. The actions of the government are reminiscent of the tactics used by educational institutions in Canada to avoid compensating authors and publishers for widespread copying of content for use in teaching under the guise of “educational fair dealing”.

Not only has the Attorney General taken a hard line on this case, it has also tried to blacken Blacklock’s reputation by accusing it of entrapment and being a copyright troll. Blacklock’s had to resort to Access to Information requests to learn how many government employees had accessed the single subscription they had authorized. The judge in the Blacklock’s case explicitly dismissed these allegations, noting that Blacklock’s had no intent to deceive.

As Barry Sookman concluded in his blog post, 

“It is high time the Government decides whether it wants to win its suits with Blacklock’s at all costs and in the process create precedents which undermine news services and other cultural industries in Canada or do the right thing and support Canadian news publishing. A good start would be revisiting its legal argument and if this case is appealed, think about what it is really trying to accomplish.”

There are lots of precedents where the Justice legal dogs have been called off for policy reasons, among them the $20 billion settlement on First Nations child welfare. The Canadian Human Rights Commission ruled that the federal government had chronically underfunded child welfare services on Reserves and ordered restitution. The federal government appealed the Commission’s order for payment and challenged the tribunal’s orders in the Federal Court. The Justice lawyers were prepared to fight to the bitter end. But then political realities intruded and common sense prevailed, the appeal was paused and negotiations leading to the settlement were undertaken. The government’s legal stance was way out of synch with its stated policy positions.

The same is true in this case and it is high time the Government of Canada stopped saying one thing but doing another. It’s time to walk the talk in Ottawa.

© Hugh Stephens 2024. All Rights Reserved.

Fair Dealing, Passwords and Technological Protection Measures (TPMs) in Canada: Federal Court Confirms Fair Dealing Does Not Trump TPMs (Digital Lock Rules)

Image: Shutterstock.com

Anyone who has been following this case, Blacklock’s Reporter v Attorney General of Canada, might be scratching their heads about now, saying, “Wait a minute, didn’t I just read the exact opposite somewhere?”. Yes, if you were reading Michael Geist’s blog, that is precisely what you read. On June 1, Dr. Geist jumped in with both feet with his blog “Huge Win for Copyright User Rights in Canada: Federal Court Rules Digital Lock Rules Do Not Trump Fair Dealing”. That is one interpretation of the outcome of this case but, IMHO, there is one heck of a lot of spin and some wishful thinking in that headline. In fact, if you were to listen to the breathless self-congratulatory podcast on Prof. Geist’s blog featuring the lawyers who represented CIPPIC, the “Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic” at the University of Ottawa (of which Dr. Geist was a founder) in their intervention, you would think that Canadian copyright law had suddenly been turned on its head by this decision.

While there has been a lot of commentary from both sides of the copyright divide on this case, I think some additional perspective is needed. Apart from the “huge win” Geist school of thought (picked up by a number of blogs from law firms), there have been comments that this marks the end of password protection in Canada as well as statements claiming that this decision puts Canada in violation of the CUSMA/USMCA. Although there were indeed controversial aspects of the decision relating to passwords and circumvention, it did not invalidate the role of access control TPMs, nor did it violate the CUSMA (which requires remedies be taken against circumvention without authority), nor did it give a blank cheque to password sharing. Let’s dig a bit deeper.  

First, we could start with my headline above stating that “Fair dealing does not trump TPMs.” This is admittedly a bit of counter spin but is just as accurate as the headline in Michael Geist’s blog. The Court’s decision does not allow or condone circumvention (i.e. the “trumping” or “overriding”) of a TPM, even if the purpose of the circumvention is to engage in a fair dealing activity. That is because the Court ruled there was no circumvention given the circumstances of the case. As the judge noted,

“In the case at bar, there is no circumvention of a TPM simply because the password was not circumvented: it was properly obtained and used for a legitimate purpose.” (Para 120)

We may disagree with the conclusion that there was no circumvention, but it is important to note that the Court did not sanction circumvention.

First, a quick clarification of what a TPM is. A TPM (Technological Protection Measure), sometimes called a “digital lock” is defined in the Copyright Act, s. 41, as;

“any effective technology, device or component that, in the ordinary course of its operation, (a) controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or (b) restricts the doing – with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording – of any act [which only the copyright owner has the right to do or authorize].

The ”or” is important, since this distinguishes between two types of TPM, those that control access to a work (Part a of Section 41), aka “access controls” (which is what we are concerned with in this case), and those that control reproduction or other copyright related activities related to a work (Part b). aka “copy controls”.

Access controls provide the gateway that allows business models to function in the digital environment. You cannot access a work protected by copyright unless you are given the “key”, normally by paying for a subscription. (This is where paywalls and passwords come into the picture). Copy controls (Part b of Section 41) protect a copyright owner’s rights with respect to how the work is used. Those rights include the right to reproduce and distribute the work, but these rights are subject to fair dealing, as are copy controls in both Canada and the US, (fair use in the US case). It is only the circumvention of access controls that is prohibited by law. The Blacklock case was about access controls. (Often copy controls are bundled with access controls, in which case the access control protection prevails).

Because a copy cannot be made for fair dealing purposes unless access is licitly obtained (i.e by not circumventing access controls), it seems reasonable to state, as I have done, that fair dealing does not trump TPMs/digital locks.  Content has to be accessed legally in order for fair dealing rights to be exercised. A TPM may be part of that legal access. If a TPM has to be circumvented in order to exercise a fair dealing purpose, that is offside Section 41.1 (1) of the Canadian Copyright Act. The Blacklock’s case does not change this.

The Court was very precise in its language stating that the fair dealing rights of the users, in this case employees of Parks Canada, could be exercised because they had licit access to the content through a licitly obtained password. In other words, there was no hacking, bypassing or decryption of a TPM in order to obtain access to and then subsequently use the content on the basis of fair dealing. At the same time, the Court refrained from ruling on whether or not a password was a TPM. More on this later.

This reaffirmation of protection afforded to a TPM will no doubt disappoint Dr. Geist and others who in the past have argued that it should be legal to bypass a TPM in order to assert fair dealing rights. He has claimed there is a self-described “fair dealing gap” that stops users from accessing content to exercise fair dealing. He has advocated for a “long overdue fair dealing exception for the digital lock rules” and has also called for establishing an exception “to allow for circumvention of a TPM for any lawful purpose”.

There are a few circumstances when it is legal to break a TPM. These are specified in the Copyright Act and include such things as law enforcement and national security; reverse engineering for software compatibility; encryption research; verification as to whether a TPM permits the collection or communication of personal information; security testing of computer systems; accessibility for disabled persons; temporary recordings made by broadcasters for technical reasons; and unlocking cell phones. Fair dealing is not among them.

To grant a legal exception to allow users to bypass a TPM in order to access content for a fair dealing purpose, such as research, would gut the ability of creators to protect content and operate a business model in the digital age. While third parties can use content in accordance with the law, including fair dealing purposes, access must be gained legally. This is just as true in the digital age as it was in the analog world. As one of the lawyers on the Geist podcast himself said, you can’t throw a brick through the window of a bookstore and grab a book just to exercise your fair dealing rights. Nor can you hack a TPM that controls access to a work, whether or not your ultimate purpose is to conduct research. The Blacklock case did not change this. I explained all this in a blog I wrote several years ago (Why Can’t I Legally Pick ‘Digital Locks’ to exercise my Fair Dealing Rights?)

But what about passwords and paywalls? Aren’t they access control TPMs? I would have thought so, and that is what Blacklock’s contended, but it seems that in terms of jurisprudence this may be unclear. A password is certainly a common means to control access, to open the door to protected content once payment or some other form of authorization is given, and is often an integral feature of a TPM. The Attorney General of Canada (AGC), representing Parks Canada, asserted that a password is not a TPM (and thus the use of a password does not constitute circumvention), and asked the Court to so affirm. It did not do so. In the absence of any evidence or expert testimony as to what a TPM is, the Court declined to address the issue. To quote from the decision, (Para 111)

“…the issue raised clearly lacks any evidence of a technical nature…There is no evidence either of what a “password” is and what it was in this case: thus, there was no expert evidence led by either party on what, in this case, constitutes the TPM.”

The Court then went on to a discussion of paywalls and whether a paywall was a TPM, or merely a means of enforcing a TPM. The end result was uncertainty regarding how a TPM (which you will recall is any effective technology, device or component that controls access to a work) is to be defined. The Court also focussed on the word “effective” to dismiss Blacklock’s argument that s. 41 was intended to empower owners to protect their works with any technological tool at their disposal, yet “effective” has been interpreted in CUSMA to simply mean that it cannot be accidentally bypassed. (Article 20.66 FN 72).

Another loose end is the meaning of circumvention. Password sharing, apparently, is not circumvention according to the Court.

Key takeaways:

  1. The absence of expert testimony as to what constitutes a TPM was not helpful to Blacklock’s case. The judge admitted that a password could arguably constitute a TPM (Para 133) but in this case there was a paucity of evidence to allow that determination.
  2. The fact that the password was obtained licitly was also not helpful to Blacklock’s. The password was not circumvented (defined as descrambled, decrypted, or otherwise avoided, bypassed, removed, deactivated or impaired). A subscription had been paid for, and a password provided, albeit shared within the organization-but for a fair dealing purpose.
  3. The terms and conditions under which the subscription was purchased were ambiguous. This case dates back more than a decade. Memories are not precise. No exact replication of the Blacklock’s website at the time the subscription was purchased (2013) is available, having vanished into internet history. Testimony as to what it contained was contradictory and inconclusive. The terms of use were contradictory, allowing circulation of Blacklock’s content for personal and non-commercial use, but then referring to bulk subscriptions. Moreover, the terms and conditions did not require explicit acknowledgement by the user, opening it to claims that the terms may not have been read in full or understood. In short, there were a number of unfortunate loopholes that weakened the case. To use a cricket analogy, the Blacklock’s case was played on a regrettably weak wicket.
  4. The use of the content was, in my view, consistent with fair dealing. It constituted non-commercial research. Of that there can be little doubt. It met the fair dealing test.

All of these elements created a perfect storm of conditions that undermined Blacklock’s case, although the Court specifically rejected the AGC’s low-blow allegation of entrapment and deception by Blacklock’s.

Going forward, the issue of whether a password or paywall is a TPM needs to be clarified. If it is, does unauthorized sharing of a password constitute circumvention? The circumstances of the sharing will certainly be relevant. As the Court stated (Para 125),

“how the password was obtained is significant as this may prevent a user from invoking the fair dealing provisions of the Act. Obtaining content by descrambling a signal or decrypting a communication may render invoking fair dealing very difficult to establish successfully.”

Properly drafted terms and conditions can provide protection against unauthorized sharing of passwords, avoiding a weakness faced by Blacklock’s in this case. The Court also went on record to note that its decision was decided on the evidence presented in this case alone and is not to become a reference at large.

It is legitimate for Blacklock’s to feel cheated by the Court’s ruling that there was no circumvention of a TPM in this case, and I can sympathize with their frustration. At the same time, it is important to note that the Court did not legitimize the circumvention of a TPM for fair dealing purposes. The law remains that a fair dealing purpose does not legitimize the circumvention of a TPM, (or the breaking of a digital lock if you will).

Commentators and analysts are free to take what they wish from any case, emphasizing this or that aspect. Michael Geist and CIPPIC have provided their interpretation, or spin. Now you have an alternate perspective. While the outcome is not what Blacklock’s hoped for, bypassing or circumventing a TPM in the name of fair dealing has not been legitimized. In other words, “Fair Dealing Does Not Trump a TPM”.

© Hugh Stephens, 2024. All Rights Reserved

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.

© Hugh Stephens, 2024. All rights reserved.

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.

(c) Hugh Stephens, 2024