Categories
Piracy Sports Broadcasting

Real-Time Piracy Enforcement: The Answer to Sports Broadcasters’ Vengeful Prayers

The window of opportunity in elite sport is incredibly narrow, in every sense: careers are short; entire matches turn on split-second incidents; and mass content piracy surges up around a particular event and then disappears again like smoke.

Those first two facts of sporting life, however cruel, are part of the fabric of any game. But the third – the everyday household piracy that drains vast subscription, pay-per-view and advertising revenue from professional sport – is a blight on the business, and it is something we can tackle.

Time, of course, is of the essence. Every time a sporting event takes place that is worthy of being broadcast, there is an online smash and grab. One or many pirate sites prepare to pirate the stream; they publicize it via sites such as Reddit from around 48 hours ahead and share the spectacle in real-time with many thousands of people.

Then it all vanishes until the next time – ghost sites that materialize for the duration of the match and then evaporate, or sometimes shape-shift back into apparently respectable domains.

Like so much on the internet, this activity imagines it is covert, but it actually takes place in plain sight – if you know where to look. A company like ours is able to monitor these pirate feeds: we know where they are, how many people are watching them, who operates them and how they make their money – usually through programmatic advertising, typically from careless legitimate brands whose ads have washed up on the internet’s wilder shores.

In their vengeful fantasies, broadcasters picture themselves simply cutting these streams dead, turning off the spectacle in mid-flow. It seems like a tall order – pirates are clever, and the internet is less controllable than that – but it is an increasingly realistic prospect.

On behalf of broadcasters, we can tackle a real-time pirate event on two fronts, through a strategy of demonetization and de-indexing that uses all the intelligence we pick up from watching the pirates come and go.

Demonetisation, as the term suggests, requires that we follow the money. We know these sites make their fortunes from ad revenues drawn from the legitimate ad exchanges. So each time we see new illegal links doing the rounds for a premium broadcast event, we have several levers we can pull.

By approaching integrated ad exchanges, we can request real-time blocking of the pirates’ ad supply, which turns off the cash tap for the big event and in turn disrupts their ongoing profitability. With a strong case, this can be made to happen almost instantly.

Likewise, by monitoring the advertising inventory of these sites, and reporting it directly to brands’ ad-tech partners, we can persuade them to pull lucrative ads from the pirate domain, in everyone’s interests. Invariably, this can be achieved within less than 24 hours, again often with long-term consequences for the pirates.

Combined with ongoing industry outreach, that is how we can demonetise pirate operators, both in general and right down to the level of their specific events.

De-indexing, meanwhile, involves the patient and timely reporting of pirate listings to the major search engines. They are big companies with procedures and policies of their own, but given a fair wind, they will often oblige within 24 hours, immediately taking down pirate search rankings and, in many cases, demoting domains in the longer term.

Combined with other powerful tactics such as takedown notices to the remarkably many app stores that host pirate apps, our approach has yielded material results. We have succeeded in 89% of our attempts to de-index offending URLs, and we calculate that we have now blocked $30m in pirate ad revenues. Where pirates can’t profit from their streams, and they struggle to maintain a search presence for them, the commercial rationale of the enterprise falls flat.

Now, there are many pirates, and many more will try their luck. The legitimate content business will never fully extinguish the flame of piracy, just as you can’t swat every wasp in the world, even with a million rolled-up newspapers.

But while you may not be able to swat them all, you can clear the immediate area. And where premium sporting events are concerned, a real-time response to real-time piracy offers content owners a fighting chance of doing the same.

This article was originally published in AITHORITY.

Categories
OTT

OTT Regulations: A Case for a progressive Government- industry- collaborative governance model

Over the top (OTT) as we all know refers to entertainment, educational, informative content including TV shows, documentaries and offerings that are made available to any person accessing the same via the Internet through either a subscription or free through advertisement model on their electronic device of choice by means of an app or a website. Consumers have been unshackled from the time and place based restrictions that existed for accessing content in theatres or owning a television. OTT’s in recent times have gained surge in popularity with an increasing amount of affinity backed by accessibility and affordability, thanks to the combined efforts of government and telecom industry in furthering the cause of internet penetration.

 

While OTTs began their journey by hosting content they also became producers of content and behave differently from video-on-demand (VOD) services. OTTs have rapidly evolved and have democratized accessibility that was largely dependent on content from mediums like television, cable, DTH, theatres and viewing houses. Being the largest democracy, India is a thriving ground and fast emerging as one of the top few countries for online curated content and as per industry reports, from Rs.4300 crores in FY2019, the online streaming industry is expected to grow to Rs. 17,400 crores by 2024.[1] This segment also calls itself the Online Curated Content (OCC) industry and there are already over 40 OTT players operating in India from amongst over 60 operating globally.

 

In terms of regulations in India the television and broadcast media is governed by the Cable TV Network Act 1995 while cinema by the Cinematograph Act, 1952. Article 19(2) of Constitution provides for reasonable restrictions, the IT Act has necessary provisions that can be evoked when necessary for objectionable content with powers to block access. There were no specific laws or rules for regulating OTT platforms as this like all other internet based disruptive innovations was a new form that left regulators around the world grappling while making consumers feeling empowered through ease of legitimate access to a wider range of content from multiple geographies and languages exposing them to an expansive realm of experiences and content which were regional and international in nature.

 

With increasing popularity and penetration of such curated content, the Government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethic Codes) Rules, 2021 and elaborated various parameters that intermediaries of all shapes, forms and sizes need to adhere to in coming times. To be fair the government on its part has taken a progressive view and OTT regulations have now evolved into a soft-touch and responsible self-regulatory model unlike other countries that have far more stringent regulations like Singapore, UK, Australia, Turkey, Indonesia, UAE etc.

 

The MIB in February, 2021 released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code), Rules 2021 which lays down various compliances for social media intermediaries and also proposed a three-tier self-regulatory model for OTT platforms. Furthermore, Tier 1 and Tier 2 of the proposed self-regulatory framework does not see interference from the Government. As per these Guidelines, OTTs are required to self-classify their content into five categories, namely- Universal (U), U/A 7+, U/A 13+ and A (Adult). These platforms are also required to implement stricter parental controls for all the content that is classified as U/A 13+ or higher. Apart from these newly introduced self-regulatory Guidelines, online content is already governed by multiple Laws such as the IT Act, IPC, 1860, the Indecent Representation of Women (Prohibition) Act, 1986, Protection of Children from Sexual Offences Act, 2012, Copyright Act, 1957, etc. The COTPA (amendment) bill proposed by the Ministry of Health has also incorporated provisions that target usage of tobacco and its glamorization in content by OTT platforms.

 

That said, takedown compliances and the requirements for having a compliance officer around the clock for grievance redressal needs to be approached in a more practical manner to make it implementable through mutual engagement to reach a solution rather sounding as being ordered to, without being given a fair hearing. The industry has overall lauded the government’s efforts for appropriately identifying the scope and contribution of these OTT platforms and suggesting a model that moves significantly away from pre-certification or censorship.

 

India has emerged as one of the most valuable contributors to quality content creation across the globe. The content generated in India has been witnessing recognition at an international level with audiences globally now accessing Indian content. A supportive environment will ensure that the economic potential of this employment and revenue generating sector is maximised. The artistic freedom that content creators and curators are provided with has made India feature on the world map as one of the most significant contributors to works that has cinema diversify. OTTs are driving the shift for the sector by reducing its dependence on the “risk heavy” conventional models that required a big star or a banners to promote and launch. OTTs have catapulted many emerging actors and artists to ”superstar” status and promoted talent in the artistic fraternity both behind and in front of the camera thereby triggering more choice, options and livelihoods.

OTTs have however been also at the centre of controversies due to certain content that may be considered contrary to beliefs of certain sections and may require housekeeping measures to be put in place so that well taken shows and artistic content and efforts of months do not get trivialised due to controversial aspects of a few seconds. Most of the content today is of contemporary nature and is curated to cater to different types of consumers with varying preferences. The personalized nature of OTT platforms available in a more consumer-friendly environment has resulted in the segment experiencing growth and wider acceptability. However a responsible and responsive approach from the OTT sector with an equally progressive approach from government would work wonders for the entertainment industry in India in achieving the intent of these regulations. A government- industry- governance (GIG) model is required for this sector to grow seamlessly.

 

As the OTT market develops further with broadcasters also breaking into the segment, it is essential that the self-regulatory model is strengthened by granting it necessary legitimacy through a government and industry collaborative governance model. Considering the vase expanse and quantum, it is not practically possible for any Government to micro-regulate content. The segment is becoming central to the future of infotainment which makes is critically important that the sector is not pushed the path of over regulation.

 

Rameesh Kailasam is President & CEO, IndiaTech.org. He is a public policy professional who writes on policy and regulatory challenges for the internet-based economy, start-ups and investors.

IndiaTech.org (TSIA) is an industry association representing Indian consumer internet start-ups, unicorns and investors and strives to promote ease of business and a conducive business environment that involves easier access to primary markets, policy and regulatory interventions to promote industry growth for the entire ecosystem and its investments. For more details visit www.indiatech.org

Categories
Piracy

Why brands must wake up to the expanding universe of online piracy

With close to a billion dollars in advertising revenue found to be going to pirate websites each year, brand marketers need to understand the risk of associating with piracy and get wise to the tactics used by these online fraudsters.

 

Digital piracy is now happening on a scale like never before.

 

Ads from household-name brands are alarmingly common on pirate websites, pouring millions of dollars into this illegal ecosystem. On top of this, premium brands are increasingly advertising with pirate mobile platforms, including over-the-top media streaming (OTT) and connected TV. Ads from premium brands are up to four times more prevalent in the mobile space.

 

Brands cannot associate or risk appearing next to pirate content. Not only does an ad on a pirate publisher associate the brand directly with this illegal activity, but brands are also funding criminals. Enforcement units such as the City of London Police Intellectual Property Crime Unit (PIPCU) have been actively reaching out to brands for some time with positive results.

 

How do pirates evade enforcement and attract advertising?

 

Piracy is continuously evolving to trick brands into thinking they are advertising on safe websites. At least half of pirate websites change their status, domain or name in a month to confuse advertising technology and get around the concept of static blocklists. Others masquerade as innocent content providers, and inject pirate streams only at specific times to distribute live events, posting links in social media to drive traffic and awareness.

 

Properly assessing content and understanding evolving piracy threats is limited due to time, resource, and expertise – piracy, in particular, requires an understanding of which content infringes intellectual property rights and the infrastructure that supports it technically and financially.

 

Rigorous assessment of data and adequate due diligence is critical. Brands need truly dynamic safeguards. Static lists won’t help because pirates move around constantly to intercept ad budgets. In the face of this evolving threat, made worse by modern ad trading methods, it’s more important than ever that marketers don’t depend on inadequate or excessively manual brand safety tools and checks to protect themselves.

 

As close to a billion dollars a year in brand ad spend funds piracy, current light-touch supervision for such a large-scale challenge is insufficient. What brands need is expert, transparent data in real-time to stop spending money to put themselves at risk.

 

 

Brands need to wake up to the shape-shifting nature of piracy. To do so requires staying up-to-date in real-time – no easy task.

 

Fortunately, today, AI is here to help. Brands can identify pirate sites in real-time and even avoid bidding on them. Brands can also track revenues lost and reverse this growing problem with data science and technology. In so doing, brands will be employing robust brand safety processes, so protecting their reputations. At the same time, brands reap financial rewards, saving millions, which brands would otherwise lose to bad actors on the worldwide web.

 

Indeed, tracking the financial impact of piracy can show how worthwhile appropriate brand safety efforts are. For instance, White Bullet has helped over 3,000 brands avoid funding piracy, saving them a whopping £44 million.

 

Marketers go to great lengths – and pay vast sums – to ensure their brand is associated with suitable content. Alongside sexually explicit content, disinformation, malware, hate speech and other undesirable content, piracy is unsuitable and unsafe.

 

 

Categories
Hollywood Interview

International Women’s Day Profile: Director Tan Chui Mui

Pioneering Malaysian New Wave director Tan Chui Mui was on the final recce of her latest film, Barbarian Invasion, in a remote fishing village when the national lockdown news broke in mid-March last year following the World Health Organization’s declaration of the COVID-19 outbreak a pandemic. Her shoot was about to start in early April, which would be after the end of the supposedly two-week lockdown. But Tan was fully aware of the severity of the situation in China. She has lived in Beijing in the early 2010s when she was hired as an in-house director by renowned Chinese director Jia Zhangke’s company XStream Pictures.

“The shoot is all set. Do we want to cancel it? It’s most stressful when we can’t plan with all the uncertainties. But my pessimistic predictions told me that the lockdown would not be so short,” Tan recalls. She and her production team immediately left the village the next day and headed back to the capital, Kuala Lumpur, in case of any border closure.

Tan Chui Mui on set.

 

She knew that first, she had to let go of the foreign crew and cast, including cinematographer Wei Yongyao, from China, and Singapore action director Sunny Pang, who would also play the role of the martial arts master in the film. Then she made the tough call to push the shoot back to June.

Malaysia-born Tan studied multimedia in animation and film at Multimedia University. She directed several acclaimed short films before making her feature debut Love Conquers All in 2006. The drama, which follows a country girl who comes to the city for work, but her fate is sealed when she succumbs to a local guy, won several new director’s awards, including Busan’s New Currents Award and Rotterdam’s Tiger Award.

Tan is also an actress occasionally – most recently seen as a single mother of a teenage son in Jacky Yeap’s feature debut Sometime, Sometime, which she also produced. But Barbarian Invasion marks the first time that she appears in her own film, where she plays a washed-up actress who receives martial arts training for a lead role while searching for her own identity.

Tan Chui Mui in “Barbarian Invasion.”

 

Juggling both directing and acting on set, “is more difficult than I imagined,” she says. “My producer would call ‘cut’ for me and I would run back to the monitor for the playback. As I was getting in and out of character, it’s hard for me to stay in character all the time.” But she quips that she can use the privilege as director to choose the actors playing opposite her. Her co-stars include Pete Teo (Ghost In The Shell) and Bront Palarae (HBO’s Folklore).

 

L-r: Bront Palarae, Tan Chui Mui

 

Barbarian Invasion is one of the six titles in the B2B A Love Supreme project presented by Hong Kong International Film Festival Society and China’s Heaven Pictures. “Each filmmaker is given RMB1 million [approximately US$145,000] to make a low budget film with high quality. I’m happy doing it. I take it as a challenge and a game to go back to the basics, focusing on the story and directing,” Tan says, adding that her project, which is still in post-production, is expected to finish within budget although the pandemic has incurred extra costs from the canceled shoot.

Tan’s predictions about the lockdown were spot-on as two full months had passed (Mar 18-May 18) before it was lifted, and her production was not able to begin until mid-June. To better control the budget and maintain hygiene and distancing, her Kuala Lumpur-based office Da Huang Pictures was used as a location. The art department dressed it up as three different sets—a gym, an apartment, and a phone repair shop.

The shoot was split into two blocks: three days in June and another 18 days in August. Filming mostly took place in Bandar Chukai, the fishing village that Tan recced right before the lockdown, which is located in Kemaman, Terengganu in eastern Peninsular Malaysia.

Since international travel is not possible with the ongoing pandemic, Tan had a taste of her first-ever virtual color grading sessions, with Bangkok-based White Light Post headed by Lee Chatametikool.

“It’s all new to us, but still workable. The colorist who is in Bangkok is able to make the changes instantly when I tell him to make it warmer or give a bit of blue,” Tan explains. “The actual virtual sessions didn’t take up much longer time than before, but communications were longer and two days were spent on syncing up all the files between us beforehand.”

While she missed traveling to Bangkok for post-production—she did several projects there including her second film Year Without A Summer—the remote workflow allows more creative people to take part. In the past, only she could travel there because of the budget. But now, her producer Woo Ming Jin and her cinematographer Gwai Lou (he’s Spanish but based in Malaysia and goes by the nickname), could join her for the virtual sessions.

While Malaysia is currently in a new lockdown, Tan is about to start the audio post-production, remotely again, with Bangkok-based sound designer Akritchalerm Kalayanamitr, who is a frequent collaborator of Apichatpong Weerasethakul, including his Cannes Palme d’Or winner Uncle Boonmee Who Can Recall His Past Lives. As ever, Tan is ready to keep moving forward, no matter the obstacles in her path, until her film is officially in the can.

This article was first published in The Credits.

Categories
Copyright

We Are Making Progress On Copyright Policy, But Big Tech’s Piracy Narrative Is Still Broken

One of the most important lessons I have learned in my three-plus decades as a film executive is the importance of storytelling. The biggest budget and the most famous stars in the world will rarely save a film if the narrative is broken. If audiences cannot follow the story, the film is most often doomed to fail.

Now, as an advocate for filmmakers and the 5.7 million other creative individuals who make their living in the core copyright industries, it’s my job to tell the story of the harm piracy does to the economically and culturally vital creative community. This story is obviously not destined for the screen. It is real life. But it can still sometimes feel like a bad movie – because often, the narrative is broken, twisted into something unrecognizable by the world’s biggest internet companies, who profit from the theft of creative works on their very own platforms, and by advocates who, for financial or ideological or other hard-to-fathom reasons, also spread misinformation.

It was once a given that taking or using without permission someone else’s creation – and profiting from it – was wrong. But in recent years, fostered by Big Tech money and influence, an army of legal, academic, and journalistic acolytes created a culture of contempt not just toward creative works themselves, but the time, effort, money, and people who make them.

We see this attitude reflected in the sheer statistics involving streaming piracy, which costs the U.S. economy at least $29.2 billion a year and at least 230,000 jobs. Google alone recently processed its five-billionth takedown notice from copyright owners – a figure that exposes a staggering indifference. Google would rather process billions of individual takedown notices than fix its piracy problem at the systemic level. Many uploaders blithely accept the idea that any copyrighted upload constitutes a fair use so long as it is labeled as such (a “misunderstanding” that Google makes no effort to correct). Other users are blissfully unaware of the piracy problem at all, while still others turn hostile at the slightest hint that piracy is a problem at all.

“Hello False Flag,” wrote one representative commenter on one of our recent Facebook posts about piracy on YouTube. “In the piracy you’re imagining… you censor your users’ Free Speech civil rights.”

“Do you want cheese with your whine?” inquired another commenter.

And: “F*** off,” read yet another “enlightened” comment. “Stop trying to commoditize culture, capitalist vultures.”

Of course, hostile commentary is a feature, not a bug, of today’s internet. But it has been cultivated by a decades-long campaign by Big Tech shills and other anti-copyright devotees, who have tried to paint our creative industries as greedy and old-fashioned, and Silicon Valley as virtuous and innovative. In their version of the story, creative people are the bad guys. How dare they expect fair compensation for their years of hard work, putting their capital and resources at risk?

For anyone with the slightest awareness of the creative process, that tale seems ludicrous on its face, and yet, as evidenced by the comments above, this broken narrative resonates with too many people.

My industry has tried to change this paradigm by telling our community’s stories of how it feels to be stolen from, by fighting for stronger copyright protections online, and by working to hold internet companies accountable for the content on their platforms. In response, Silicon Valley’s minions have railed against us, painting us as crony capitalists shilling for Hollywood fat cats looking to get fatter. Here’s the irony, that is finally becoming clear to everyone: in defending Silicon Valley, these “digital activists” help to line the pockets of our digital overlords, while the creative communities – whose content gets stolen and whose work gets denigrated – get the short end of the stick.

“You could merge the world’s top five advertising agencies (WPP, Omnicom, Publicis, IPG, and Dentsu) with five major media companies (Disney, Time Warner, 21st Century Fox, CBS, and Viacom),” wrote the marketing guru Scott Galloway, “and still need to add five major communications companies (AT&T, Verizon, Comcast, Charter, and Dish) to get only 90 percent of what Google and Facebook are worth together.”

How do you change the minds of people who clearly love creative content – but think it’s okay to steal what they love? How do you get them to understand how bizarre it is that they would hand over the most minute details of their private lives to the world’s most sophisticated surveillance operations, in return for “free” access to valuable (and stolen) content that some of their fellow human beings spent immeasurable quantities of time and resources making?

If I had the answer, I would not be writing this – but I know this much: The solution starts by holding Big Tech more accountable for its own bad behavior and that of its users.

Things may be changing at long last. After years of being the Belle of the Ball in Washington, Big Tech is finally under serious scrutiny in Congress. Antitrust suits and hearings with Mark Zuckerberg are the big newsmakers, but there is just as much action – if not more – happening in the creative policy space.

In 2020, lawmakers finally undertook a serious reassessment of the Digital Millennium Copyright Act (DMCA) and its flawed and outdated provisions that give platforms a free pass when it comes to cleaning up piracy. The year also ended with the passage of two landmark copyright laws: the Protecting Lawful Streaming Act (PLSA), which makes large-scale commercial streaming piracy operations subject to felony prosecution; and the Copyright Alternative in Small-Claims Enforcement (CASE) Act, which creates a tribunal for small-scale infringement claims so creative individuals and small businesses don’t have to go through expensive litigation in federal court to protect themselves against piracy.

These developments clearly signal a changing attitude on Capitol Hill regarding piracy and Big Tech’s role in it. But the efforts by Big Tech to push the upside-down anti-creativity narrative persist.

In the film industry, fixing a story is a collaborative effort. Turning creatives into antagonists because they fight against large-scale commercial piracy of their work is the kind of storyline that begs to be repaired. I think the most important edit starts with the behavior of Facebook and Google, who should do a better job of educating their users about the value of creative works and the importance of protecting those works against piracy.

Then, if their actions would match those words, this story could actually have a happy ending.

This article was originally published in CreativeFuture.

Categories
Copyright

Viola Desmond and Her Story of Courage and Creativity—And Some Thoughts on Race and Copyright

In this week’s blog post I am going to address the central issue of what Black History Month is all about; celebrating the courage and determination of people who made enormous sacrifices to advance the cause of racial justice. I want to highlight the case of an intrepid black woman, who was at the same time an entrepreneur and a creator of intellectual property herself–perhaps some of it even protected by copyright– who stood up (actually, sat down) for racial equality in Canada. Viola Desmond’s name may not be that well known outside Canada (or within it for that matter), and it is high time that her story was told to a broader audience.

Even though Viola Desmond’s story does not involve copyright itself, I also want to touch on the role of copyright with regard to race and racial discrimination. Why? Well, because this is a copyright blog and also because I believe that copyright can be an important instrument in helping to achieve greater racial and economic justice.

Is Copyright Colour-Blind?

We need to ask this fundamental question. Does copyright discriminate on the basis of race (or gender)? Does it better protect some racial groups better than others? On its face, I would say no, because at the end of the day an artist is an artist, an author is an author, a musician is a musician. Whether the holder of the copyright is a man or woman, or is of black, Asian, Indigenous or white racial origin, the copyright in a work that they have created belongs to them. It empowers them. The only qualification is that the creator must be human. (Recall the ridiculous attempt by the animal rights group, People for the Ethical Protection of Animals—PETA—to claim copyright for “Naruto” the macaque in the Monkey Selfie Case).  Animals don’t qualify, nor do machines.

Copyright prima facie is blind to factors of race or gender. Once a work is created, as long as it meets the established criteria (originality, fixation, and authorship) copyright is granted automatically, assuming the creator is a resident of a Berne Convention country.  An artist in Zaire, an author in Cuba, a composer in Greenland—they all qualify. I would argue that copyright is the ultimate enabler of democratic economic and moral rights because the simple act of creation confers the right. Unlike other forms of intellectual property, important as they are, copyright requires no formal process of registration. For example, it can be argued (and no doubt proven) that racialized or marginalized groups are under-represented in the patent filing process because of the barriers to filing—process, cost, access to “the system” and so on. There are no such overt barriers with copyright.

But Are Practices that flow from Copyright Colour-Blind?

Now, while I would argue that the establishment of copyright itself is colour and gender blind, I will readily admit that the exercise of the rights within copyright through business practices and application is not always free of bias. It is not difficult to find examples where the application of copyright in various business situations can be argued to be discriminatory, such as in reaching contractual agreements where one side may have disproportionate power. I would note, however, that power imbalance in negotiations over payment for use of copyrighted material (e.g. an author with a publisher, or a musician with a label) can and does happen quite frequently, independently of any racial considerations.  Nevertheless, I think there is a view that while copyright may be race or gender neutral, its application is not always so. This may explain the vigour with which I was criticized a couple of years ago when I wrote a couple of blogs (here and here) on gender and copyright.

Indigenous Cultural Expression

Another issue relating to copyright and societies not necessarily based on Western concepts of individualism and law is the problem of attributing copyright protection to group or collective works, particularly where those works were produced by Indigenous groups. This is a topic on which I have written in the past, arguing that a supplement to copyright laws is needed to protect forms of art loosely grouped under the rubric of “Indigenous Cultural Expression” (ICE). Both national governments and the World Intellectual Property Organization (WIPO) are looking at various means to do this.

Historical Application of Copyright

I also readily concede that historically copyright was not applied in the way that it is today. As with many things, it was reflective of the broader social values of the time and often embodied overt racial discrimination. Moreover, it was not until 1886 that the Berne Convention was established. This international convention established the principle of a creator’s “automatic right” to copyright, as well the virtual universality of reciprocal copyright recognition. Originally, it had just ten original signatories; today it has 179. (The US joined in 1988).

Phillis Wheatley

An obvious example of the historical context of copyright was its application to slaves in a slave-owning society (like the southern US states prior to 1864). Individual creators could hardly expect to avail themselves of their copyrights when they themselves were treated as chattels to be bought and sold. The earliest example of African-American literature, the poems of Phillis Wheatley, a slave girl in Massachusetts, published in 1773, illustrate the struggle faced by people of colour in trying to establish authorship. Wheatley had to appear before a group of notables (all white males of course, no doubt of a “certain age”) who eventually “established” that the poetry was produced by her, an authorship hurdle not known to have been forced on any other writer. Yet copyright prevailed in the end. The publication of her work was entered in Stationers’ Hall, London, the repository for copyrighted works at the time (since the publication predated US copyright and the US Constitution) although it was undoubtedly the British publisher, Archibald Bell of Aldgate, who ensured it was deposited.

Frederick Douglass

Another famous work of African-American literature, Frederick Douglass’ “Narrative of the Life of Frederick Douglass, An American Slave” (1845) and a later work, “My Bondage, My Freedom” (1855), both bear the inscription on the fly-leaf “Entered, according to Act of Congress, in the year 1845 (or 1855) by Frederick Douglass, in the Clerk’s office of the District Court of…”. It was Massachusetts for the first work and the Northern District of New York for the second. Prior to 1870, authors and publishers registered their claims to statutory copyright with the clerks of the U. S. District Court for the jurisdiction in which they resided. Douglass, a former slave who had gained his freedom by fleeing from the south to Pennsylvania, took pains to assert his copyright at a time when slavery was still thriving in parts of the United States. Despite the many hurdles and imperfections in application placed in the way of people of colour, copyright could still be harnessed as a means to assert individuality, dignity and creativity, albeit with difficulty.

Copyright Today

I would argue that copyright, imperfect though it may be, is today more of an instrument of empowerment than exploitation, more part of the solution than part of the problem. Even though there have been historical injustices, today copyright can be a liberator and equalizer, putting a powerful tool into the hands of individual creators, rather than being part of a system of oppression and exploitation. To cite but one example, an important argument in favour of creating an Artists Resale Right (about which I will be writing in a couple of weeks) is that it provides the means for an ongoing transfer of wealth from well-heeled art dealers and collectors in Europe to disadvantaged artists in the developing world. Without copyright this would not be possible.

Recent Scholarship

Not everyone will agree with this positive view of copyright, however, and I feel obliged to acknowledge here the learned treatise by Dr. Anjali Vats, Assistant Professor in Communication and African Diaspora Studies at Boston College. Her recent book, “The Color of Creatorship: Intellectual Property, Race and Making of Americans”, argues just the opposite. For her, intellectual property law (including copyright) is racialized and designed to perpetuate white privilege.

I contend that intellectual property law is organized through a racial episteme that consistently protects the (intellectual) property interests of white people and devalues the (intellectual) property interests of people of color”.

At the risk of gross oversimplification, her argument is based on the premise that if a society is racist as defined by its concepts of “citizenship” (a social rather than legal term), then everything that flows from that is racist. She says, “racial scripts can be baked into the seemingly colorblind ideals of American citizenship that, in turn, inform intellectual property law”. In her view, “the notion that intellectual property law has become equitable…is a dangerous one…” It is a system that is “ideologically rigged in favor of whiteness”. More recently, in what she calls the post-racial IP era, dating from Barack Obama’s accession to the White House in 2008, racism was perpetuated (according to Prof. Vats) by the imposition of maximalist IP policies on an infringing Global South—pharmaceutical patents being one example. But it is unfair of me to selectively quote and try to summarize an important work in a few sentences. Best you read it for yourself and make your own judgement.

At the end of the day, perhaps we are not that far apart. We all know that laws are not applied equally, (look at incarceration rates for racially marginalized groups) even though in theory they apply equally. If perceptions and values are imbued with racist assumptions, a colour-blind law or principle can be distorted. The case of Viola Desmond is a prime example of this.

Viola Desmond

Viola Desmond’s contribution to the ongoing struggle for racial equality does not directly engage copyright questions, although she was a creator of her own products and asserted her intellectual property rights. Her story is about dignity, determination, and courage. Viola Desmond (nee Davis) was born in Nova Scotia in 1914 to a black father and white mother and raised in the black community in Halifax. With career options limited for women, she trained as a beautician although she had to attend school in Montreal and in the US as there were no opportunities for black students at such institutions in Nova Scotia at that time. She opened a beauty culture studio in Halifax catering to women in the black community. This branched out into the Desmond School of Beauty Culture, and a line of beauty products that bore her name. (e.g. Sepia Face Powder by Viola Desmond).

Things were going well for Desmond until her run in with the unofficial but entrenched practice of racial segregation in Nova Scotia. In November, 1946, on her way to sell beauty products in the north of the province her car broke down in the town of New Glasgow. While it was being repaired, she decided to take in a movie at the Roseland Theatre. When she purchased her ticket, for thirty cents, it was for the balcony. Realizing that she could see better from the main floor she seated herself there, and was challenged by the ticket taker, who indicated her ticket was for the balcony. Main floor tickets cost forty cents. She offered to pay the difference and was told the main floor was for whites only. She refused to leave. This account from the Canadian Encyclopedia continues the story;

“Desmond was then confronted by the manager, Henry MacNeil, who argued that the theatre had the right to “refuse admission to any objectionable person.” Desmond pointed out that she had not been refused admission and had in fact been sold the ticket, which she still held in her hand. She added that she had attempted to exchange it for a main floor ticket and was willing to pay the difference in cost but had been refused. When she declined to leave her seat, a police officer was called. Desmond was dragged out of the theatre, injuring her hip and knee in the process, and taken to jail. There she was met by Elmo Langille, chief of police, and MacNeil — the pair left together, returning an hour later with a warrant for Desmond’s arrest. She was then held in a cell overnight.

In the morning, Viola Desmond was brought to court and charged with attempting to defraud the provincial government based on her alleged refusal to pay a one cent amusement tax (i.e., the difference in tax between upstairs and downstairs ticket prices). Even though she had indicated when she was confronted at the theatre that she was willing to pay the difference between the two ticket prices and that her offer had been refused, the judge chose to fine her $26.”

That of course is not the end of the story. Desmond could have just bitten her lip and suffered, as her husband advised her to do, but she did not. The NAACP in Nova Scotia took up her case which eventually went to the Supreme Court of Nova Scotia. It would be nice to tell you that she prevailed. She did not, on technical grounds, (the appeal of her fine had not been lodged within the statutory time limitations) but the Justice hearing the case noted acerbically;

One wonders if the Manager of the theatre who laid the complaint was so zealous because of a bona fide belief that there had been an attempt to defraud the Province of the sum of one cent or was it a surreptitious endeavour to enforce “Jim Crow” by misuse of a public statute”.

Her Legacy

Her case did not end racial discrimination in Nova Scotia or Canada but it was a courageous and singular act that led eventually to greater justice, and to long overdue apologies and attempts to rectify the injustice. The fact that this woman entrepreneur, who built a successful business that not only generated employment in the community and provided career opportunities for young people, but also demonstrated considerable ingenuity and vision through the creation and marketing of her own products, could be denied basic dignity by being ejected from a seat in a theatre is incomprehensible today. And then to be convicted of “tax fraud” for not paying the one cent difference in tax, even though she offered to do so. Although Desmond died in 1965, her sister is still living, and kept her story alive. In 2010 Desmond received a posthumous apology, in 2012 a Canadian stamp was issued in her honour and in 2016 it was announced that she would be the first woman, other than the sovereign, to appear on a Canadian bank note, the $10 bill. Recently Nova Scotia repaid the fine, with interest, to Desmond’s sister. The fine itself was 2,600 times the value of the one cent “fraud”, which was itself a ludicrous charge of the sort that brings the law into disrepute.

The recognition of Viola Desmond’s stand for equality was long overdue. Her act of courage did not change that much that quickly in her lifetime, but she was a pioneer. Many people know of Rosa Parks, who initiated the bus segregation protests in the US in 1955, and who is noted for that and for her many other contributions in fighting racial discrimination over many years, but she had kindred spirits in Canada; people like Viola Desmond who challenged segregation practices a decade earlier.

Racial discrimination today is perhaps less obvious, but no less pervasive. One of the ways to fight it is to provide equal opportunity. Not all creators get equal opportunity, but the rights conferred on them by copyright at least enable them to stand up for their rights. Discrimination can no doubt be argued to exist even today in the application of copyright law, but copyright itself is an important tool in prying open the box of equality.

This article was originally published in Hugh Stephens Blog