The Department related Parliamentary Standing Committee on Commerce submitted its 161st Report on Review of the Intellectual Property Regime in India. Read report here.

The Committee has recommended to amend Section 31D of the Copyright Act, 1957 for incorporating ‘internet or digital broadcasters’ under statutory license in wake of the rise in digital or OTT platforms with manifold increase in music as well as movie apps and its significant contribution to economy attempting to ensure a level playing field by making content accessible on similar terms to both traditional and internet broadcasters alike.

Relevant extract (Para 14.8 (ii) reads as under:

“Section 31D of the Act deals with statutory licensing for radio and television broadcasting of literary and musical works as well as sound recordings wherein the broadcasters pay royalties to the copyright owner at a rate fixed by the Copyright Board for broadcasting any content. It was informed that digitization and internet culture in India has led to increase in digital content service providers and Over The Top (OTT) video apps, internet music/ podcast apps, etc. in terms of revenue contribution from OTT, India would be the tenth-largest market globally with around 805 million internet subscribers by 2022. Hence, it was suggested that Section 31D should be amended to include OTT platforms, music apps, etc. as ‘internet or digital broadcasters’ under the benefit of statutory license along with traditional broadcasters. The Committee recommends the Department to amend Section 31D for incorporating ‘internet or digital broadcasters’ under statutory license in wake of the rise in digital or OTT platforms with manifold increase in music as well as movie apps and its significant contribution to economy. This would ensure a level playing field by making content accessible on similar terms to both traditional and internet broadcasters alike”.

Section 31 D was introduced in the Copyright Act, 1957 vide the 2012 amendment. It provides a statutory license to “broadcasting organizations” desirous of “communication to the public”, by way of a “broadcast” or by way of performance, a literary or musical work and sound recording which has already been published, subject to the provisions of section 31D. The statutory licensing provisions require the determination of royalties by the appellate board (erstwhile IPAB and now commercial courts) and requires separate rates to be fixed for radio and television broadcast. Under section 31D, copyright owners have no say in the broadcast of their content and the limited right granted to them is to participate in the proceedings before the  board for fixation of royalties’ payable for the broadcast of such content on radio or television.The section is currently applicable only for radio and television broadcasting organizations.

This is not the first time such a recommendation has been made to include digital media within the ambit of Section 31D. As covered here, the Ministry of Commerce and Industry (Department for Promotion of Industry and Internal Trade) had notified on May 30, 2019 the proposed amendments to the Copyright Rules, 2013 in exercise of its powers conferred under Section 78 of the Copyright Act, 1957 wherein it sought to include each mode of broadcast in place of radio/ television broadcast in Rules 29 to 31.

In 2016, the DIPP had issued a clarificatory office memorandum which sought to clarify that internet broadcasting was included within the scope of Section 31D. The Bombay High Court in the matter of Tips vs Wynk had ruled that this Office memorandum lacked ‘statutory flavour’ and could not prevail over interpretation which is drawn under the Act and the Rules. As covered in our post here, in Tips vs Wynk, the Bombay High Court had held that the intention of the 2012 amendment bringing in Section 31 D clearly revealed that, even though being aware of the existence of digital technologies, the 2012 Copyright Amendment clearly dealt only with broadcast of radio and television and did not intend to include internet streaming and broadcasting within its realm.

It would be pertinent to point out that though there were various digital platforms in operation in India, providing streaming and downloading of content even prior to 2012, the legislature intentionally omitted to discuss statutory licensing for such digital platforms. The 227th  Parliamentary Standing Committee on the Copyright (Amendment) Bill, 2010, discusses statutory licensing for radio and television alone. The legislature therefore consciously omitted digital broadcasting from the ambit of Section 31D.

As stated earlier by Mr. Raghavender GR (Joint Secretary, Dept. of Justice, Ministry of Law and Justice; Ex- Copyright Registrar (during the 2012 amendments), the statutory licensing provision was introduced vide the 2012 Amendment to support the then fledging private FM radio industry to access music content. On demand being made by the TV industry, the provision was extended to them as well though it was clarified that separate rates would apply for tv and radio considering the strong revenue earning status of television industry in comparison to the radio industry and music content dependency of radio.

It needs to be contemplated as to whether an expropriatory legislation like Section 31D which deprives the copyright owner’s right to license works for broadcasting on terms and conditions that it deems fit and proper, should be applied to a sector which is booming and in fact generating maximum revenues. It is a settled position that an expropriatory legislation should put least burden on the expropriated copyright owner. There does not seem to be any economic rationale in including the digital media within the regime of statutory licensing. Internet is a free medium and unlike other sectors does not involve infrastructure cost or other regulatory costs. On the contrary, most digital streaming platforms attract huge investments and have created a substantial market value based on their ability to provide copyrighted works procured from voluntary licenses. The legislature hence needs to deliberate on whether a booming industry which does not require any financial help should be provided such support by placing content owners at a severely disadvantaged position in terms of their ability to license their content profitably.

Ironically, the Standing Committee Report starts the introduction by stating that “innovation and creativity influencing different spheres of society are highly essential for the holistic growth and development of a country. The evolution of new creations and innovative ideas, research and development and their application in production of goods and services as well as in generating knowledge is the basis of progress of any nation. Hence, promotion and protection of such creations and innovations in the form of intellectual property and intellectual rights is significant for not only safeguarding them from adverse exploitation but also manage them as precious knowledge assets. This calls for the need to establish a robust and an effective Intellectual Property Rights (IPR) regime that encourages and incentivizes innovation and creativity along with securing collective interest of the society”.

The music industry currently is largely dependent on the revenues it receives from the digital streaming platforms. An amendment to include digital media within the ambit of Section 31D would have far reaching consequences in the entire functioning of the music industry and have a rippling impact on the film industry as well which generates a portion of its revenues from the music industry thereby disincentivising the creative industry and defeating the purpose of having a robust and effective IP regime in India.

On 31st December, 2020, the IPAB passed the landmark radio royalty decision under Section 31D. The decision has been challenged by each party involved. The radio broadcasters have challenged the decision qua publishing royalties payable to IPRS, the music labels have challenged it in relation to the royalty rates. Further, there are pending infringement claims filed by some music labels in relation to the radio broadcasters allegedly flouting the mandatory requirements of Rule 29 in relation to the advance notices which are pending before Delhi and Bombay High Court. The radio broadcasters in turn have challenged the constitutionality of Rule 29 of the Copyright Rules, 2013 before the Madras and Bombay High Court.

Section 31D has been the bone of contention between the broadcasters and the music labels since the very inception. The challenge to Section 31D by SIMCA had failed before the Madras High Court in 2016 and the petition filed by Lahari Music before the Supreme Court is still pending (read details here). The provision has also been challenged by Eskay Videos before the Calcutta High Court.

A move to include digital broadcasting within the ambit of Section 31D would not only disrupt the functioning of the music industry but pave way for multiple litigations in the industry which would not be conducive for the growth of the IP regime of the country.

We asked few industry representatives on their views on the Standing Committee Report. Here is what they had to say:

  • Mr. Blaise Fernandes, President, Indian Music Industry:

“We are hopeful that the recommendation of the Parliamentary Standing Committee on Commerce to extend the scope of Section 31D of the Copyright Act, 1957 to the internet will be deliberated further and the views of the creative community  will be taken into consideration . This recommendation if implemented will have a catastrophic effect across millions of livelihoods connected with the music ecosystem largely the creative sector  . It will also negatively impact the growth of over 300 MSME’s largely record labels  across India. Recorded Music is an integral part of the broadcast and film industry- the impact will therefore be felt across both sectors. The recommendations are against the spirit of Atmanirbhar Bharat.

  • Mr. Atul Churamani, Managing Director, Turnkey Music & Publishing Private Limited:

  “The recommendation to include Internet services under the provisions of Section 31-D could be a body blow to the music business, for which 80 to 90% of its revenue comes from streaming services today. The only positive will be if that statutory rate is in lines with the historical music business model of 70% of revenue earned by the retailers being paid out to copyright owners. The recommendation to reinstitute the IPAB is welcome”.

  • Mr. Vivek Raina, Managing Director, Believe India:

“More than ensuring parity, the implementation of the said usage on statutory terms by the OTT would jeopardize the rights of the owners (be it artist or music labels) who have invested massively in the music production. The implementation will disrupt the entire chain i.e. the movies, artists and the investments which is needed for development of new music/artists. On the flip side, it is the music fraternity who needs support to grow as they are the reason for many industries who function around the music fraternity . Unfortunately, it is the music industry who are still lagging far behind in terms of revenue compared to OTT/Radio industry. This will be a big push back to the international players who have started investing in Indian music market and the implementation of the recommendation will be a hit on the employment and growth of the local music market.”

  • Mr. Aashish Rego, General Secretary, Music Composers Association of India and member of Executive Committee, APMA with a slightly divergent view said:

“I agree with the recommendation of fixing a statutory royalty for all media inclusive of digital. A diverse market and ecosystem such as India needs clarity, transparency and accountability in its systems which is seriously lacking. There is also a major issue in enforceability against copyright infringers which here also include major broadcasters who exert their muscle refusing to pay by stalling the process under the guise of lack of clarity. Statutory licensing will also provide much needed predictability to the entire ecosystem by not allowing arm-twisting by copyright owners too. It will enable the smoothening of the entire process of licensing thereby increasing control.

The rate of royalty needs to be deliberated on and fixed fairly and proportionately to the revenues of the companies.  It should be usage dependant and should demarcate 2 sets of usage where music is a prime revenue driver or where it is merely an additional value add. The rates should be a percentage of the gross revenue and decided at the earliest else the law will only remain on the letter as has been the case with most parts of the Copyright Act Amendment of 2012!

The rate of royalty also needs to take into consideration international rates and practices from Europe, Canada, USA, Japan, Korea and Brazil as indicative of the approach we should adopt. The recommendation for reinstitution of IPAB is most welcome  for settlement of Copyright related disputes that could flood the courts under the guise of lack of clarity and speed up enforcement processes and prevent stalling.

I feel we (the industry) have failed in behaving responsibly and with integrity and hence statutory licensing should be implemented.

As far as increasing the renewal time of copyright societies from 5 years to 10 years I disagree with that proposal, as the DPIIT in my opinion has not been able to effectively monitor or take remedial action against arbitrary and partisan functioning of certain copyright societies. Copyright societies that are non representative of the bulk of the community should not be given re-registration thereby holding them accountable against creating a “Club” like society that collects for all and distributes to a few“.

The other notable amendments proposed in the Copyright Act by the Committee include:

  • Recommendation to increase the renewal time of copyright societies from 5 to 10 years as Section 33(3A) imposes administrative burden on the copyright societies owing to long delays in the processing of renewal applications which causes irreparable harm to the authors and publishers.
  • Recommendation to facilitate a fair and equitable ecosystem of literary culture in the country by bringing in necessary changes in Section 51(1) of the Act such as permitting reprographic works in Government-owned educational institutions and storing it in libraries for their easy access to students as well as stipulating limitations to unrestricted commercial grants to copy books and literary works and storage of copied works in digital formats.
  • Recommendation to promote establishing of community libraries and upgradation of existing libraries in the country for easy access to works of foreign publishers that are exorbitantly priced and difficult for the students and academics to access. Also, National Mission on Library, a venture of Central Government to strengthen the library system, should be implemented at the earliest.
  • Recommendation that a comprehensive study of provisions under Berne Convention for the Protection of Literary and Artistic Works should be undertaken to establish a copyright regime which is beneficial to both copyright holders and public. 

A detailed post on the Report to follow soon.

This article was first published in IPRMENTLAW.


The American Music Fairness Act (AMFA): A Better and Fairer Solution for Performers than Seeking “National Treatment”

From the title of this draft legislation, introduced into the US House of Representatives in late June, you can surmise that something is unfair about music in America. What is unfair–from the perspective of performers and record labels–is that US terrestrial radio stations are not required to pay royalties to performers or labels for playing recorded music on air. Online broadcasters and streaming services do, but not over-the-air AM/FM radio stations. Terrestrial stations do, however, pay royalties to composers and songwriters for music played on air, but not to performers. Why is this, and what is the justification for this free-ride on the work of others?

It goes back to the birth of radio in the 1920s and is related to political clout, in this case the political influence exercised by the National Association of Broadcasters (NAB) in the US. I mean, who wants to pay for something, even if that something is the essence of the service you are offering your customers, if you can get it for free? The argument advanced by the NAB is that radio stations shouldn’t pay performers for playing their music because the stations provide “free air-time” that promotes new recordings. If you want to get your music promoted, you need to get it on air, and therefore—so the broadcasters’ argument goes—performers should be grateful for the free publicity. It is similar to the specious argument that seeks to justify piracy by claiming that it helps promote movies or books. It’s also like raiding the orchard next door and selling their apples for personal gain but justifying the theft on the basis that the more people buy apples (from me), the better it will eventually be for the apple growing industry and for the grower next door. Moreover, because internet radio broadcasters are required to pay performance royalties, while terrestrial broadcaster are not (the requirement for digital transmissions to pay performance royalties was introduced in the US in 1995; prior to this date performance royalties applied only to public performances), the exemption for AM/FM stations is another way of tilting the playing field in favour of just one segment of the broadcasting industry. The
AMFA would deal with this longstanding injustice.

The arguments for passage of the AMFA have been well laid out by several commentators, including retired music industry executive Neil Turkewitz (Broadcasting Rights for Performers & Labels: The Fair Thing To Do) and copyright blogger David Newhoff (Has the Moment Finally Arrived for Fairness to Music Performers?). Both point out that the tired old arguments about free publicity and advertising for performers is thread-bare; if they ever had any validity in the past, that has changed with the introduction of many other ways to promote and distribute music. Terrestrial radio competes with streaming services and satellite radio, neither of which are arguing that they should be exempt from the payment of performing royalties. Radio stations are far from the only game in town when it comes to giving exposure to artists, but they are the only ones to get a free ride on the artistic efforts of third parties, which they monetize through advertising. In fact, the US appears to be one of the only countries in the world not to require the payment of performance royalties by over-the-air broadcasters. (I’m not sure about North Korea).

This US exceptionalism (which the AMFA is trying to address) also results in the situation where US artists whose music is broadcast in other countries generally are deprived of royalties for the on-air playing of their work abroad, even though terrestrial broadcasters in those countries are required to pay performance royalties. This loss of overseas income to US artists has been estimated at over $300 million annually. Most countries apply the principle of reciprocity (“tit for tat”) when it comes to collection and payment of royalties. Since US law provides a royalty exemption for radio stations for all music played, this means that foreign artists also don’t get paid when their recorded works are broadcast. Therefore, most countries reciprocate (one might say “retaliate”) by applying the same rule to US performers, either by not requiring collection of royalties on music performed on terrestrial radio by US artists, or by allowing collecting societies to keep the funds generated by US artists and distribute them to domestic performers. The best way to counter this, and to ensure that royalties flow to US performers, is to fix the problem in the US by removing the broadcast exemption. This would also have the additional benefit for non-American artists of ensuring that they receive compensation when their works are played on terrestrial radio in the US.

However, there is another way to address the problem of collecting foreign royalties for US artists—by pushing for “national treatment”. This is a trade principle whereby foreign entities in a given country are treated as well as (or one could say as badly as) domestic entities. The term of art used is that the treatment must be “no less favourable” than that accorded to a domestic equivalent. No favouritism is allowed to be shown to domestic companies, entities or artists vis à vis foreign entities, and there is no tit-for-tat reciprocal treatment. For example, under the principle of national treatment, if British law has a requirement for payment of performance royalties on radio, all performers should receive them, whether they are British, American or Zulu. The fact that British performers in the US are denied royalties when their music is played on radio is not relevant because British performers are no worse off in this respect that their US counterparts. In other words, US law discriminates against all performers, regardless of nationality. Everyone is treated the same—badly.

But national treatment is not granted by countries willy-nilly. It is usually negotiated bilaterally and is subject to many qualifications. Only certain sectors or products are accorded national treatment, and there are usually exceptions. National treatment concessions are carefully negotiated to ensure a balance of benefits overall between countries, which is the main concern of trade negotiators.

Because there is no national treatment in music between the US and UK (there being no bilateral trade agreement), we get the situation described below by the US advocacy group Music First which, among other objectives,  is urging the US Government to negotiate national treatment commitments with foreign governments, under the deceptively catchy slogan “All music creators deserve equal treatment”. The following example is put forward by Music First to substantiate its case;

because the United Kingdom doesn’t recognize national treatment, if a band has members from both the United Kingdom and United States, only the U.K. artists get paid directly from the U.K. collective when their music is played on U.K. radio.”

Some would say that is only fair because the US doesn’t allow British artists to collect royalties in the United States; others would say that two wrongs don’t make a right. Artists lose out in both scenarios. One way for the US music industry to deal with the overseas royalties issue is to push the US government to negotiate national treatment provisions with foreign countries that respect broadcast performance rights. But this is, at best, a stop-gap measure. A far better solution, one that will benefit all artists, including US and foreign performers both in the US and abroad, is to rectify the injustice by eliminating the US terrestrial broadcast exemption once and for all.

This article was first published in Hugh Stephens blog.

Blog Media

The American Music Fairness Act (AMFA): The Canadian Dimension

Last week I posted a blog on the American Music Fairness Act (AMFA), draft US legislation that seeks to end the exemption that US terrestrial broadcasters enjoy with respect to payment of broadcast royalties to performers and labels for playing recorded music. It is an anomalous situation in which the US is the only developed country jurisdiction to provide such an advantage to terrestrial broadcasters. Not only that, the exemption unfairly tilts the playing field within the US broadcasting industry by discriminating against digital broadcasters, since streaming services and digital and satellite US broadcasters are required to pay performance royalties. It is also an anomaly because terrestrial (and other) broadcasters are required to pay royalties to songwriters and composers when they play their music, just not to performers (in the case of AM/FM stations).

As a result of this longstanding special treatment for terrestrial radio stations, which dates back to the dawn of the radio era in the US, not only do US performers in the US not get paid royalties when their work is played on terrestrial radio, but foreign artists are likewise deprived of such payments. As a result, many countries reciprocate by denying to US artists the ability to collect performance royalties when their works are played on terrestrial radio in their countries. This is permitted by the international convention that governs such matters, the WIPO (World Intellectual Property Organization) Performances and Phonograms Treaty of 1996 (WPPT). The WPPT, which the US ratified in 2002, provides that, in the words of WIPO;

Performers and producers of phonograms have the right to a single equitable remuneration for the direct or indirect use of phonograms, published for commercial purposes, broadcasting or communication to the public. However, any Contracting Party may restrict or – provided that it makes a reservation to the Treaty – deny this right. In the case and to the extent of a reservation by a Contracting Party, the other Contracting Parties are permitted to deny, vis-à-vis the reserving Contracting Party, national treatment.

In other words, instead of applying national treatment, i.e. treating foreign performers “no less favourably” than domestic performers, Contracting Parties could apply reciprocity, discriminating against foreign performers if their home countries failed to provide the full benefits of the treaty. Tit for tat, or the “mirror principle”. At the time the US acceded to the WPPT it filed a reservation with respect to equitable remuneration because the performance right under US law is not applicable to terrestrial broadcasting. This led a number of countries to exercise their right to refuse to collect or pay royalties owed to US artists for performance of their works on their terrestrial radio stations. Among them was Canada, as well as many EU countries, including Ireland and, at the time, the UK.

But it gets more complicated. The policy of applying reciprocal rather than national treatment to US performers was recently challenged in a dispute between copyright collectives in Ireland. The Irish court then referred the matter to the EU Court of Justice (ECJ). In a preliminary ruling, the ECJ found that Irish law, which applied reciprocity, was not consistent with EU law, which is silent on the reciprocity question leading the Court to conclude that it was not permitted. However, this was not the end of the matter as the European Commission is now launching a study into the impact of this decision. A solution, pushed by some in the European music industry, is to amend EU law to allow individual member states to continue to apply the reciprocity principle, writes music journalist Chris Cooke.

Because Canada, like Ireland the UK and others, applied reciprocal rather than national treatment to US performing rights, Canadian broadcasters were not required to pay, nor did Canadian collecting societies (Re:Soundand others) collect, performance royalties on US works. The US music industry, which to date has been unsuccessful in having the terrestrial broadcast royalty exemption lifted despite years of trying, has been seeking “national treatment” as a fallback. If granted national treatment, US performers are able to collect radio royalties in countries that mandate payment of performance royalties by broadcasters, even though they and non-US performers are denied such royalties in the US. For US performers it is a partial solution. That solution is now coming to Canada.

As part of the updating of NAFTA and its replacement by the USMCA (known as CUSMA in Canada), the US, Canada and Mexico agreed to national treatment when it comes to “all categories of intellectual property covered in the (IP) Chapter”; viz.

Each Party shall accord to nationals of another Party treatment no less favorable than it accords to its own nationals with regard to the protection (2) of intellectual property rights.

But that is all about “protection”, not payment of royalties, right?

Did you notice the footnote (2)? That says, among other things,

For the purposes of this paragraph, “protection” also includes…any form of payment, such as licensing fees, royalties, equitable remuneration, or levies, in respect of uses that fall under the copyright and related rights in this Chapter.

To implement this commitment, on April 29, 2020, the Government of Canada published a Statement Amending the Statement Limiting the Right to Equitable Remuneration of Certain Rome Convention or WPPT Countries, in the Canada Gazette, the publication of record for the Government of Canada. In plain English, this complicated “statement amending the statement…etc” means that U.S. recordings are now eligible in Canada for equitable remuneration under all tariffs applied by the collecting society responsible for performance royalties. U.S. recordings fixed before 1972 will also now be eligible. This is as a result of changes introduced in the US by the US Music Modernization Act, which among many other things, extended copyright protection under US federal law to pre-1972 sound recordings. The change in Canada for pre-1972 recordings came into effect April 29, 2020 while the rest of the changes came into effect on July 1, 2020, the date when the USMCA/CUSMA entered into force.

This is one more copyright related commitment in the USMCA/CUSMA that I probably should have included in my blog on the cultural aspects of the trade agreement that I posted on its first anniversary at the beginning of July this year. (I am making amends now). As an aside, and unrelated to the USMCA, for certain tariffs (satellite radio, pay audio, simulcasting, non-interactive and semi-interactive streaming) U.S. recordings became eligible as of August 13, 2014 as a result of Canada’s ratification of the WPPT. (This was because US law requires digital broadcasters to pay performance royalties, so Canada accorded US recordings national treatment). As noted above, on April 29, 2020, pre-1972 U.S. recordings also became eligible for the same treatment.

As a result of the USMCA, for US artists the problem of performance royalties paid by Canadian terrestrial broadcasters is “solved”, even though they do not get performance royalties from terrestrial broadcasters in their own country. This change will impose some additional costs on Canadian radio stations although the Canada Gazette did not hazard a guess as to the cost, saying in effect that it was too complicated to calculate. Canada also has its own peculiarity when it comes to payment of performance royalties, which complicates calculations. The first $1.25 million in advertising revenues for terrestrial stations is sheltered from performance royalty payments except for a nominal $100 fee. In effect, this is a greatly watered-down version of the performance royalty exemption enjoyed by US radio stations, and is as controversial in Canada (and as unpopular with the music industry) as the terrestrial broadcast exemption is in the US.

While the new USMCA/CUSMA provisions will help US artists earn revenues when their recordings are broadcast in Canada, this does nothing to solve the problem for Canadian artists with regard to royalties for the broadcast of their music on US AM/FM stations, nor does it do anything for US artists in the US (a far bigger market of course). Any improvement in outcomes for artists is a step forward, but the tiny step taken in Canada is dwarfed by what would happen in the US if the American Music Fairness Act becomes law. It has a long way to go, and the US broadcast lobby is well organized and well-funded. This is not the first time this issue has come before Congress, the most recent being in 2017 when the “Fair Play Fair Pay Act” was introduced. Despite determined efforts by the music industry at generating support in Congress, ultimately it did not make it through the legislative sausage machine. Now the issue is back on the congressional agenda; it is high time to end this anomalous exception to payment of copyright performance royalties by bringing US law into alignment with the rest of the modern world.

Getting national treatment for US performing artists in Canada is positive (for this one group of performers) but is nonetheless only a half-step forward, an interim measure. The US Congress needs to fix the problem once and for all by passing the AMFA and eliminating the broadcast exemption. That is the right thing to do for all artists affected by the non-payment of performance royalties for radio broadcasts, whether they are from the US, Canada or elsewhere. Enacting the AMFA would also eliminate the disparity (some would say unfairness) whereby Canadian broadcasters will now be paying royalties to US performers while Canadian performers are denied the same benefits in the US.

This article was originally published on Hugh Stephens Blog.

Copyright Industry Piracy

Insights from Industry Insiders: Eileen Camilleri

Each month we hear from industry insiders in Australia and abroad to get their take on content piracy. Is content protection improving? How do we stop piracy? How does Australia compare to the rest of the world? These are some of the questions we’ll be exploring with leaders across the content industry.

Eileen is the Chief Executive Officer of the Australian Copyright Council. After practising intellectual property law, Eileen moved in-house to APRA AMCOS. She has since taught and consulted in intellectual property, most recently at the College of Law where she spent 20 years writing, lecturing and working on course design. She was the Assistant Director of Practitioner Education, running the College’s Masters program. A former occasional legal officer at the ACC, Eileen is also a professional actor with a Masters in Fine Arts (QUT). 

Welcome Eileen, please introduce yourself.

Hi. I am Eileen Camilleri and am the CEO of the Australian Copyright Council (the ACC). We are a small, independent, not-for-profit, non-government organisation dedicated to promoting understanding of copyright law and its application. We currently have 26 affiliate members who we work hard for in advocating for appropriate copyright protection and reform.  

We provide free written legal advice to members of our affiliate organisations and Australian creators on copyright related issues. We also conduct training including seminars, webinars and develop customised training for organisations.  

On the Resources section of our website, we have a large range of free copyright fact sheets available and copyright publications 

Does piracy affect your business or that of your stakeholders? How? 

Piracy affects our affiliate members, particularly collecting societies whose role it is to support creators to earn a living through their work. We also advise individual creators on instances of piracy and online infringement through our legal advice service.  

What do you think is the most significant impact of piracy on the creative industry? 

 The biggest impact unfortunately, is a financial one. It is already difficult for creatives to earn a living through their work and piracy makes it that much harder. Less money flowing to creatives means less resources and opportunity for cultural goods which is a net loss to society as a whole.  

It is of course, very difficult for individual creators and small businesses in particular, who don’t necessarily have the means to litigate when their rights have been infringed.  

What is the biggest challenge in the fight against piracy? 

 The biggest challenge in the fight against piracy is enforcement. The internet presents many challenges in this space, such as the anonymity of pirates and infringers, ever changing technology and the massive size of the world wide web. This means that piracy enforcement is often a ‘whack-a-mole’ exercise.  

How do you think Australia is measuring up in tackling piracy? 

In 2018, amendments were made to the Copyright Act 1968 (Cth) which allow copyright owners to apply to the courts for an injunction requiring search engines and internet service providers (ISPs) to block access to sites which facilitate online copyright infringements. These reforms have been and Kickass Torrents 

Further, the recent shift to easily accessible and affordable online streaming models from rights holders has reduced online piracy by allowing consumers convenient access to copyright material, but it is a continuous battle!  

Do you have any personal experiences or anecdotes about piracy? 

 Only that I have a couple of well-schooled children on the problems of piracy!  

What are you watching and recommending to friends at the moment? 

 There’s a lot of fabulous content on free to air and streaming services at the moment.  

I’m savouring the final season ‘Call My Agent’. On the Australian front, ‘Bump’ was terrific.  

What excites you about the future of your industry sector? 

Creative industries are always exciting. I am very lucky to be working in the space – you never know what new cultural shifts are just around the corner! The ACC is honoured to continue supporting creative Australia.  

This interview was originally published in Content Café.

Copyright Industry

Negotiating Payment for Use of News Content on Dominant Internet Platforms: What’s Needed to Reach a Fair Deal?

Given a choice between reaching “voluntary” agreements with news publishers for use of news content online and being compelled to do so by government, the dominant internet platforms (Google, Facebook) are now doubling down on negotiations with news providers. Mind you, there is nothing like a hanging in the morning to focus the mind. The latest confirmation that the platforms would prefer to negotiate “voluntarily” rather than face legislation compelling them to do so, or worse, have a government arbitrator set the terms of the agreement, was the announcement last month that Google Canada has reached agreements with eight Canadian publishers, including one major Canadian nationwide daily (The Globe and Mail) to license content and pay news organizations to create and curate journalism. This came on the heels of Facebook’s recent announcement that it had reached agreement with 14 Canadian news providers, most of them small digital players, to pay for some content on the platform.

The sudden interest on the part of the platforms in reaching deals with news content providers is not born of charity or concern for the fate of news publishers. It is a direct response to mounting pressure on governments, and by governments, to deal with the issue of the market dominance of the platforms in online advertising, and the fact that part of their offering to attract viewers is use of content created and produced by news publishers.

It is open to interpretation whether or not it is consistent with copyright law for platforms like Google News to scrape content from news sites in order to display headlines and snippets (brief excerpts) of news stories. That is why the EU created a new neighbouring right for publishersthrough Article 15 of its Copyright Directive, providing news publishers (as opposed to the journalists who create specific stories) with a new right over content they publish, valid for a two year period from the date of publication. This tool was placed in the hands of the publishers supposedly to strengthen their hand in negotiations with the platforms.

This has been a hot topic for a few years now. Attempts to deal with platform free-riding on news content produced by others go back to 2014 when both Germany and Spain enacted a publishers’ right to provide publishers with leverage in negotiations with the major internet platforms. At that time, the main concern was Google’s dominance. Google won the first round, bringing German publishers to heel by threatening to downgrade their search results, and by closing down Google News in Spain. With the enactment of the publishers’ right at the EU level in 2019, the tide began to turn.

France was the first to move to enact the new provision into national law leading, not surprisingly, to a confrontation with Google. After protracted legal struggles and political lobbying, Google decided that negotiation was preferable to confrontation, and managed to reach agreement with a majority of (but not all) French publishers. They negotiated with some major publications as well as a consortium of publishers known as APIG (Alliance de la presse d’information generale) but some other major news providers, such as Agence France Presse, were excluded. Now a ruling by France’s Competition Bureau has put the APIG deal in doubt. According to press reports, antitrust investigators have accused Google of “failing to comply with the French competition authority’s orders on how to conduct negotiations with news publishers over copyright”. On July 13, the Authority fined Google 500 million Euros ($593 million) for failing to negotiate with the publishers “in good faith” as earlier instructed by the Authority. Google was ordered to present a reasonable offer to the publishers for use of content within two months or face a fine of up to 900,000 Euros a day. Now that’s talking tough. The ruling addresses issues that arise from the nature of the negotiations between the platforms and publishers, whether with individual news providers or with a group or groups of publishers. Because of their scale, the platforms can use “divide and conquer” tactics giving them the upper hand.

In Australia, the government dealt with this by introducing legislation that would have required both Facebook and Google to submit to binding “final offer” arbitration if they were not able to reach revenue sharing agreements for use of content with Australian media providers, giving news providers an additional lever. After unsuccessful attempts to overturn the legislation by threatening to abandon the Australian market (Google) or shutting down all Australian news feeds on its service (Facebook), campaigns which spectacularly backfired, both platforms agreed to negotiate with Australian media publishers, avoiding application of the Code. Since then some impressive deals have been struck, resulting in substantial ongoing payments to Australian media.

Google had already seen the writing on the wall. In 2020, it launched its Google News Showcase, an initiative billed at $1 billion (over 3 years) to support journalism by licensing content from news media outlets in a number of countries. (Canada, Germany, Brazil, Argentina, the UK and Australia were the countries initially named). At the time, very few major media companies signed on; Germany’s Der Spiegel and Stern were initially among the few large players to participate. No sooner was it announced, than in Australia the program was suspended as a means of pressuring the government to drop its legislation targetting the platforms. It was not implemented in Canada because no major media outlets agreed to take part. Google was more successful in Britain, however.  In February it was announced that the platform had reached agreement with 120 British publishers, including the Financial Times and Reuters.

The determination of the Australian government to stand up to the pressure tactics of Facebook and Google was favourably noted—in the USwhere publishers are supporting draft legislation that would allow news organizations to bargain collectively with platforms by providing a limited time exemption from anti-trust legislation–and in Canada, where Heritage Minister Steven Guilbeault, has committed to bring in legislation similar to that passed in Australia. Guilbeault, however, has not delivered, much to the chagrin of News Media Canada (NMC), the lobby group representing the news publishing industry (the self-described “voice of the print and digital media industry in Canada”). As I noted in a recent blog posting, “An Open Letter to Justin Trudeau: Canada’s News Publishers up the Pressure on Facebook and Google”, NMC is unhappy that the Trudeau government has not got around to introducing the promised legislation because they believe it would strengthen their position in negotiations with the platforms. (Separate legislation introduced in the Canadian Senate by an opposition Senator and modelled on the EU neighbouring rights provisions, is going nowhere. Senate bills rarely make it through the legislative process and bills sponsored by non-government Senators stand even less chance).

The “Open Letter”, which appeared on June 9, blanked out the front page of many daily papers in Canada, including the National Post, Toronto Starand many of the city dailies owned by the Postmedia Group. At the time I mentally noted that the Globe and Mail, and my local daily, the Times-Colonist (Victoria), did not publish the “Open Letter”. Now I know why. In addition to the Globe, Glacier Media, the owner of the Times-Colonist (and many other smaller community papers and specialty industry publications), along with Black Media, another publisher of many community papers, were among those that reached agreement with Google, despite being members of News Media Canada. That leaves Postmedia, the publisher of daily papers in most major cities in English Canada, the TorStar Corporation, publisher of the Toronto Star and Quebecor, the publishers of French language dailies in Montreal and Quebec City, out in the cold, at least for now.

This piecemeal approach is one of the biggest problems facing publishers, whether in Canada, France, the US or elsewhere (except in Australia, where the compulsory arbitration requirement backstops the process) because the deep pockets of the platforms give them a negotiating advantage. Initially, in most countries, Google and Facebook were able to make deals only with small digital outlets primarily. For these small-scale start-ups, funding from the platforms must have seemed like manna from heaven. The major publishers resisted but inevitably the common front began to crack as each outlet determined what was in its best interest.

In the US there have, to date, been no revenue sharing agreements for use of content between US news publishers and Google or Facebook. Many publishers would rather deal collectively with the platforms rather than being picked off one by one. This is one of the prime reasons for the (re)introduction of the Journalism Competition and Preservation Act (JCPA) in the US Congress. According to its bipartisan sponsors, “this bill will support the independence of local papers by giving news publishers the power to collectively negotiate with digital platforms like Google and Facebook”.

The US is not the only country (besides Australia) to recognize the negotiation imbalance. In Denmark, thirty media companies have decided to come together to bargain collectively with the platforms. This reflects a longstanding Scandinavian preference for cooperation among copyright and collective rights organizations, as I wrote about after my visit to Denmark a couple of years ago.

While the draft US legislation to provide news publishers with an anti-trust exemption has bipartisan support, it has been criticized by two well-known anti-copyright advocacy groups, Public Knowledge (PK) and the Authors Alliance. Their gripe is that the JCPAcould be interpreted by courts to implicitly expand the scope of copyright.”

Presumably they are referring to this language, which forms the core of the Bill;

A news content creator may not be held liable under the antitrust laws for engaging in negotiations with any other news content creator during the 4-year period beginning on the date of enactment of this Act to collectively withhold content from, or negotiate with, an online content distributor regarding the terms on which the news content of the news content creator may be distributed by the online content distributor…”

According to commentary published by both PK and the Alliance, their concern is that hyperlinks could be subjected to copyright protection, and that access to snippets of information that may be subject to fair use would likewise be legally constrained through court interpretations. This is not only a pretty far-fetched conclusion (there is absolutely no reference, implicit or otherwise, to hyperlinks in the legislation), but also attacks one of the fundamental principles of copyright, namely that a creator has the right to determine whether or not, and how, their content will be made available. If content is made openly available by the copyright holder, it may be subject to limited fair use access, but if a rights-holder decides to withhold or restrict access to content by putting it behind a paywall for example, that is their right. According to Public Knowledge (PK), the Bill could be interpreted to implicitly create “a new right that would allow news sites to withhold content until or unless they receive the compensation they seek”.  PK wants additions to the legislation to make it clear that copyright protection is not being expanded by the law to include linking, or fair use snippets of linked material. This is a red herring and totally unnecessary, raising a straw man to knock down where none exists. It almost looks as if PK is using this as an opportunity to try to sneak in new limitations to copyright protection that have no basis in the law.

PK has a variety of other objections to the draft legislation as well, despite claiming that it supports US journalism and access to trustworthy sources of news. Its objections are hard to reconcile with the objective of enabling the news media to negotiate fair compensation from the dominant internet platforms.

Having the ability to deal with giant digital companies like Google and Facebook to get fair compensation for use of news content is the nub of the issue for news publishers large and small in many countries, including the US. Robust government enforcement of competition law (or threats to amend competition law through new legislation) seems to be one way of ensuring a more balanced negotiation, and of bringing the platforms to the table. Allowing publishers to work together, to the extent that they are interested in doing so, is another. At the end of the day, the final outcome should be a deal that fairly compensates those who invest in gathering and creating the news, allowing them sufficient financial security to continue doing what they do best, while leveraging the ubiquitous reach of the internet to promote greater access to curated, responsible journalism.

Paragraph 5 has been updated to reflect the decision of France’s Competition Authority to fine Google 500 million Euros for failing to negotiate “in good faith” with French publishers.

This article was originally published in Hugh Stephens Blog.

Blog Industry Intellectual Property

Conflict of Artificial Intelligence with IPR



The impact of Artificial Intelligence and Machine Learning tools on our daily lives has long been a part of academic discussions. Image recognition, search engine optimization was brought way back in the late 20th century but major breakthroughs with respect to A.I. are contemporary these significant developments and acceptance in the consumer market has increased its involvement in every walk of life. Various big-ticket companies have incorporated machine learning tools in their operations. Amazon’s recent virtual assistant Alexa, has given a brief idea of what an A.I. system can offer us in future. Technologists and Jurists have raised their eyebrows over its influence and incorporation in legal regimes. However, the transformation from human-based skilled activities to A.I. based activities would be gradual and require legal transformation at the same pace (given the unpredictable behaviour, it is not wise to be ahead in the particular case). Tesla’s autopilot, Google’s Deepdream is just tip of the iceberg. There are concerns over the requisite changes in the current IPR regimes. The AI-IP interface is bewildering specifically with the advancement of AI not only in the context of authorship and ownership (copyrights and patents) but also for liability (counterfeit products).

Artificial Intelligence has totally changed the paradigm of window shopping and in future is expected to revolutionize it further. The current only system of buying is suspected to shift to a much personalised system where chatbots will be addressing the issues and helping the consumer fit best possible products based on a given set of data. However, what set of data is to be provided would always be a question? It can be earlier purchases or preferences opted by the consumer or a mix of both but the current system of suggestive products would undergo various changes in the coming time.

It predicted by a study from Gartner that by 2020, 85% of customer service interactions in retail will be powered or influenced by some form of AI technology. AI global revenue is predicted by market intelligence firm Tractica to skyrocket from $643.7 million in 2016 to $36.8 billion in 2025.


There are several examples of AI operating in retail and e-commerce shopping environments. The most basic form of A.I. one can observe today in the form of suggestions placed by the websites or its “recommendations based on your order” or general product suggestion featuring consumers’ various preferences and earlier purchases on that website or the data available to it. These websites provide suggestions based on various parameters which may include customers’ browsing history, purchase history, preferences marked on the website etc. These targeted product recommendations are made through AI. This system at the very least has substituted the human shop assistant of old with AI.

Amazon Echo and Google Home devices are other examples of big changes in the e-commerce and trademark world as these systems help in identification of various products based on their brands. Thus one major interface of AI and trademarks happen when there is a brand war based on the listings provided by the AI on certain websites, say Amazon. For example Amazon’s Echo product functions through a voice recognition system which is software called Alexa and is an AI. Further the current settings of Alexa are such that it cannot place order on itself but it removes a crucial part of the product selection process frequently considered in trade mark law. Alexa is the one analysing the market, it has all the market and branding information, not the consumer. Automatic purchasing is still a new concept but in time to come it will rather be used more frequently by the consumers. Here the AI would completely take over the purchasing decision. Another product of AI and shopbot is Amazon Dash which is a replenishment service which runs on the concept of automated ordering. The current system of it is a WI-FI linked button which replenishes consumable products like coffee, sugar etc which takes the current stock into consideration and places order accordingly before the stock of the consumer runs out. Fashion industry is also one such arena where AI and branding takes place at a larger level with respect to personal stylists and assistants which helps in sorting out apparels for the consumers. There are various things that the assistant takes into consideration before suggesting an item which may include stitching type, body fit of the cloth, fabric etc. One such assistant is Mona which is self learning AI and operates on customer feedback which helps you make your own wardrobe based on their personalised styles and it enhances its services the more a customer uses it. Another example of AI is Pepper the robot which identifies purchases earlier made and compares it with style and price preferences. It is also capable of reading customers’ mood, and in the future this can replace shop assistants.


Absence of uniform definition and standards leads to difficulty in incorporation within domestic and international laws. Douglas Hofstadter states “AI is whatever hasn’t been done yet.” To draw a conjecture, this is probably the reason for not capturing A.I. in definitive terms. However “Intelligence demonstrated by machines” can provide an appropriate and simplistic overview for analysing its implications of various IPR regimes specially trademark law. It is a well settled fact that social media platforms and search engines use machine learning tools to generate outputs from their data matrix with the help hashtag optimization, relevancy, freshness and various other parameters. For example the e-commerce platform Amazon displays results based on an individuals’ previous search history, preferences and may also use scrolling timer (a new age concept which analyses time spent on screen comparing it with number of clicks on similar topics).

The advent of A.I. has totally changed the scenario of online B2C platforms and the consumer market therein. It has taken the parameters of preferences in brand, colour, size etc out of the hands of shopkeepers and will soon lead to virtual shopping centres providing a list of options matching consumers’ preferences. One can always argue about the size of population it will cover, given the priorities of an average Indian buyer and the internet penetration of our country. Initial resistance is inevitable but gradually people will shift, as in the case of online shopping. Ultimately the current legal framework will have to accommodate A.I. systems’ operations and various liabilities associated with it specifically in the e-commerce and trademark parlance. Traditionally, trademarks were differentiating indicators in a homogenous market, basically used to create a brand name highlighting the trust, value, quality and standards of the product sold by the proprietor. The online retailing business changed the utility of trademarks and brand names by providing a thrust to counterfeit businesses. The current trademark regime renders a vacuum vis-à-vis the liability of an A.I in cases of counterfeit products.

The online retail platforms are provided with a safe harbour protection in cases of counterfeit products (section 79 Information and Technology Act). The courts however stand for dilution of the safe harbour defence; the Delhi High Court in Christian Louboutin SAS v. Nakul Bajaj & Ors. stated the liability of online platforms under section 79 (3)(a) which does not exempt platforms having active participation or contribution in sale of counterfeit products from safe harbour provision. The test examines the involvement and manner of business which the platform operates in. Rule 3 of the Information Technology rules, 2011 provides mandatory agreement between the intermediary and sellers prohibition on hosting or uploading and displaying any infringed product.

This article was originally published on IPTSE.

Hollywood Industry Interview

“Black Widow” Stunt Coordinator Rob Inch on the Art of Adrenaline

In her swan song as Russian assassin-turned-Avenger Natasha Romanoff, Scarlett Johansson fights her way through Black Widow (opening Friday) on a mission to destroy evil mastermind Dreykov (Ray Winstone) and his network of brainwashed female killers. But first, Natasha has to confront her equally ferocious kid sister Yelena, portrayed by Florence Pugh. (Some light spoilers ahead). Abandoned as children by their spy parents (David Harbour and Rachel Weisz), the now-grown Natasha endures merciless teasing from Yelena, who mocks her sibling’s signature landing pose for being melodramatically cheesy. “You’re a poser!” Yelena half-jokes.

It’s a rare case of superhero stunt choreography calling attention to itself, but once Natasha and Yelena set aside their differences, the sisters power through a globe-hopping succession of action sequences encompassing prison breaks, car chases, a relentless killing machine named Taskmaster, shower curtains re-purposed as garrote wire and an everything-but-the-kitchen sink aerial spectacle featuring dozens of characters falling through the sky.

Making the action pop alongside director Cate Shortland is Black Widow stunt coordinator Rob Inch, who previously worked on Wonder Woman 1984, Rogue One: A Star Wars Story, and Captain America: The First Avenger. Speaking from England, where he’s prepping a new Marvel movie, Inch deconstructs Black Widow‘s most thrilling set-pieces.

It’s shocking to see Florence Pugh as Yelena slugging it out with Scarlett Johansson’s Natasha when they first meet in a Budapest apartment after being separated for 20 years. What was the concept behind the sisters’ knock-down, drag-out fight?

You hit the nail on the head when you say “shocking” because that was the brief: “Shock us.” We already know how badass Scarlett’s Natasha is through her movies, but this fight is our first introduction to Yelena. There was a lot of chewing and chawing between myself and Cate and second-unit director Darrin Prescott until it became about keeping things grounded so we have someplace to go [in the rest of the film] because we have so many more fights, and we wanted each one to have a different flavor.

Scarlett Johansson as Black Widow/Natasha Romanoff and Florence Pugh as Yelena in Marvel Studios' BLACK WIDOW. Photo by Jay Maidment. ©Marvel Studios 2020. All Rights Reserved.
Scarlett Johansson as Black Widow/Natasha Romanoff and Florence Pugh as Yelena in Marvel Studios’ BLACK WIDOW. Photo by Jay Maidment. ©Marvel Studios 2020. All Rights Reserved.


There’s nothing fancy about the sisters’ fight.

It’s domestic violence with a little bit of an edge, isn’t it, with them slamming each other into the wall, getting dragged into the sink, being hit over the head by a kettle, and chucked into the door with breakaway glass. When the door accidentally went through the frame and through the glass, we were like, “Aw that looks so bad we’ve got to use it.”

And then Natasha uses a shower curtain to choke her sister into submission.

We wanted the sisters to end up on the floor together like we’re taking you back to their childhood. We figure out a small little bit of aerial stuff, which is a standard thing for Black Widow, but then we made it a little bit more organic using the curtain. That fight was the first thing we shot with Scarlett and Florence together. I would say it’s my favorite fight in the movie.

You go straight from this confined, intimate fight to a wild motorcycle and car chase on the streets of Budapest. How did you design that sequence?

Same thing, really, as the sisters’ fight: it needs to have levels. We start on the rooftop with a foot chase. Cut to downstairs getting on a motorbike and doing some really cool moves by this amazing street freestyle rider I got called Sarah Lezito. What this girl can do with a motorbike! And she’s doing it with a passenger on the back, which was pretty damn impressive with the bike drifting in and out of traffic. In the car, they get stuck in a traffic jam so the only way out is ramming their way out that, and makes it a little more organic. Pretty much all that stuff was all done practically. And then Taskmaster shows up in this bad-ass tank vehicle, which adds another layer. The girls are sort of sweetly driving in their car and suddenly there’s this brute thing pushing his way through, like a guy doing punk rock dancing in a ballet.

Natasha and Yelena end up at a train station where they slide down the escalator banister just like kids might do.

We talked through many different ideas but then we’d research them and see “We’ve done that before.” So this wound up being about actually getting the real girls, Scarlett and Florence, to jump on the escalator and slide down. They were so up for it, those two.

Scarlett Johansson has made nine Marvel films but Florence Pugh is new to action movies. How did you prepare her for all the fighting?

We had Florence for ten weeks out [before filming began].  She would drill and drill and drill and drill, and then do fitness training. Here’s the thing with any actor training for an action movie: They’re only going to be as good as the amount of time they commit to it. Both those girls are so good because they put in the time. And also, Florence had the confidence to lean on her stunt double. If there are moments in the fight choreography that are too difficult, we’re going do a wide shot where we can use your double and then we’re going to come back in and lean on these things that you’re good at. Having actors or extras who aren’t too precious [about doing their own stunts] shows a great commitment to the film.

(L-R): Stunt coordinator Rob Inch, Florence Pugh and stunt double on the set of Marvel Studios’ BLACK WIDOW, in theaters and on Disney+ with Premier Access. Photo by Jay Maidment. ©Marvel Studios 2021. All Rights Reserved.


Yelena (Florence Pugh) in Marvel Studios’ BLACK WIDOW, in theaters and on Disney+ with Premier Access. Photo by Kevin Baker. ©Marvel Studios 2021. All Rights Reserved.


Black Widow’s massive third act climax shows people free-falling through the sky as the villain’s airborne Red Room headquarters disintegrates miles above earth. It looks very complicated.

We spent six weeks on what we call “The descent sequence” and it was heavily pre-vis. There was live sky diving, there was wind tunnel work, traditional wirework, Robomoco as we call it, and visual effects as well. We morphed all those elements together.



What’s Robomoco?

Basically, Robomoco is a programmable robotic arm that picks up an actor by her hips and flies them through the air on a route that you’ve plotted. Then you digitally remove the arm. It’s a pretty cool piece of kit.

Did you bring back Scarlett’s frequent stunt double Heidi Moneymaker for Black Widow?

Heidi did a little bit of the re-shoot stuff in America, but our main stunt doubles for Scarlett were C.C. Ice and Mickey Facchinello. We had an amazing stunt team, all the doubles were great.

Up in the Red Room, Ray Winstone’s Dreykov character punches Natasha in the face, once, twice, three times. As a stunt that’s probably pretty simple to stage, but dramatically it’s very effective. What was your trick for making that fight work so well in the story?

It’s just down to making sure Dreykov felt credible. I’ve worked with Ray Winston before. He knows how to throw a punch. You definitely believe he’s credible. But it’s a funny thing. If you took away the sound from these shots, nobody would believe them, but when you add sound, you buy it straight away. Also, we’re working with two really talented actors. When you say “Imagine you’ve been punched in the face,” I don’t have to teach Scarlett Johansson how to act.

You started out as a stunt performer back in 1997 working on Titanic and before that, you jousted in a King Arthur’s theme park. Have you ever broken any bones on the job?

The ones who say they don’t have any broken bones have never really done any stunts. I had a nasty accident years ago doing a stunt on a horse. I fell onto my back and ruptured my pelvis in eight places. I was in the hospital for four months. So now I’m able to tell my stunt team, “I used to do stunts so I understand the pain you’re going through.”

Black Widow director Cate Shortland has never made a movie on this scale before. What was she like to work with?

Cate was very open to ideas. She brought these characters to life and then enabled others who were maybe more capable in other fields to get on and do their jobs. I’d call her a really good director.

Featured image: Black Widow/Natasha Romanoff (Scarlett Johansson) in Marvel Studios’ BLACK WIDOW. Courtesy Marvel Studios.

This article was originally published in The Credits.


Sniffing Out the Truth in Advertising to Pirates

We can all agree that stealing a car or a computer constitutes a crime – but stealing a movie? Well, as TorrentFreak put it earlier this year, they believe that a creative whose work is being pirated is presented with an “opportunity.”

How could that be? TorrentFreak says that “research repeatedly shows” that the people who watch pirated content “are consumers too,” and that these consumers – who reportedly visited pirate sites 130 billion times in 2020 – have “commercial value” as a group “whose data can be used to target ads to.”

Of course, TorrentFreak is not the first to argue that information about which pirated shows consumers watch makes for “marketing treasure”. We in the film and television industry have been hearing this same spiel for years from an anti-copyright contingent of academics, journalists, and advocacy groups representing Big Tech interests.

As someone with over 30 years in the business of making, acquiring, marketing, and distributing movies, I’m here to tell you that this argument is deceptive. Consider that number – 130 billion visits to pirate sites from the U.S. in one year? That is a staggering total.

No wonder that, by 2022, the U.S. film and television industry – which supports 2.6 million jobs across all 50 states – is expected to lose more than $11.6 billion per year to piracy. And no wonder that the U.S. Chamber reports that such losses are costing the overall economy at least $29.2 billion annually and at least 230,000 jobs.

It should go without saying that a marketing campaign built on pirate viewing data could never offset nearly $12 billion in losses from digital piracy… which represents about 36% percent of 2020 U.S. film and television revenues. No CEO – in any industry – would look at these kinds of losses and say, “but at least we’re spreading awareness of our product, right?”

The creative industry is no different. Those who challenge our entirely understandable efforts to protect our works from piracy consistently, and condescendingly, argue that we suffer from “a failure of imagination” – a stubborn inability to embrace all the purported benefits that rampant stealing brings to our business.

The “piracy-is-marketing” proponents have a persistent notion that pirates who steal our movies will, on balance, end up directly or indirectly injecting money into the creative industry down the road. Perhaps they will ultimately purchase the film they loved that they had earlier decided to pirate. Or perhaps they will tell others how much they loved it, and some of those recommendations will result in purchases by their friends and connections.

In truth, I cannot deny that such scenarios are possible. There is no doubt that spreading awareness of a movie, be it through legal or illegal channels, increases the chances of people spending money on that movie. But when it comes to piracy, any theoretical promotional value gained from the illegal activity cannot outweigh the provable harms from revenue lost.

A 2016 Carnegie Mellon study that tracked data from all major movie releases from 2006 to 2013 (when piracy was not nearly as easy to partake in as it is today) found that box-office revenue would increase by as much as 15% per year if piracy “could be eliminated entirely from the theatrical window”. While the report concedes that “there is a small silver lining to piracy because of its promotional role,” any “word-of-mouth generated by pirated viewers helps to lessen, but does not offset, the negative cannibalization effect of piracy.”

Carnegie Mellon went on to reinforce its research in 2020 – in a joint study with Chapman University that analyzed the aggregated studies on this topic in academic literature. It found that “29 of the 33 peer-reviewed papers studying this question found that digital piracy causes statistically and economically significant harm to creators by cannibalizing sales in legal channels, and… can harm consumers by reducing the economic incentives creators have to invest in high-quality entertainment projects.”

I can already hear the “piracy-is-marketing” movement’s rebuttal here: “But maybe that trend would reverse if you marketed directly to the pirates, Ruth.” That’s what TorrentFreak is ultimately proposing, after all – if we treat these illegal viewers as a marketing demo in and of themselves, and target them with ads like we would any other audience, we will actually make more money for our efforts.

But there are a couple of big problems with this argument. First of all, when we target an audience with one of our assets, such as a trailer or a poster, we have a very specific goal of tracking subsequent engagement. In the modern age, we’re less interested in how many people actually watch the trailer, and are far more interested in what those viewers do next. Do they share the trailer with friends? Do they click on the link to visit the film’s official website or, even better, head on over to the ticketing website? All these secondary actions communicate engagement, and engagement is how we can determine the efficacy of our marketing campaign.

But we can’t measure those outcomes when the platform generating them is operating in bad faith. A website that is illegally offering unlicensed movie and TV streams has no interest in supplying the marketers of those productions with helpful marketing data. So, we’re not only losing the sale when a potential customer visits one of these sites, but we also can’t measure what they do next. And if we can’t measure this “audience” of pirates, we can’t market to it – it’s as simple as that.

But let’s say we could do this thing. Let’s say an offshore commercial streaming piracy operation was interested in supplying a marketer like myself with some of that data, that alleged untapped “marketing treasure.” Well, it’s not all that untapped. In fact, as reported by the anti-piracy firm Marketly, a Google-sponsored study conducted in 2018 with the University of Amsterdam found, “a huge overlap between ‘pirates’ and ‘legal users’”.

In other words, Marketly writes, “it’s no longer accurate to think of ‘pirates’ and ‘legal users’ in two distinct groups. When we talk about ‘pirates’ today, we are no longer talking only about consumers with an active BitTorrent account or spreading links around the dark web. We are talking about average consumers accessing pirated content with a simple Google search.”

That’s right, piracy has become so ubiquitous that the people who pirate content and the people who pay for content are often one and the same. Which raises the ultimate question – how do marketers better target the people making 130 billion piracy visits every year when many of them are the same paying customers we’re… already targeting?

The obvious answer is, we can’t – and what’s more, we shouldn’t have to. Beneath all this theorizing on my part is an emotional plea. Just like the independent creatives and businesses with whom they partner, marketers don’t want to deal with piracy. They don’t want to collect data from criminal pirate site operators and find ways to cater to those people with better outreach. They just want to continue building strong relationships with distribution channels and clients who operate in good faith – you know, like any business does.

It makes my heart hurt that, because we’re part of the creative industries, we are expected to somehow work with the thieves – to simply accept their staggering theft as a given and find a way to incorporate it into our marketing strategy.

I have a better idea. Let’s just stop piracy. Doesn’t that seem a whole lot simpler?

This article was originally published in Creative Future.


Creating the Wonderful World of Disney+’s “The Mysterious Benedict Society”

They met in an improv group while students at Brown University, and joined forces as screenwriters after graduating. Some three decades later, Phil Hay and Matt Manfredi have racked up a noteworthy roster of film credits that include Destroyer, The Invitation, Ride Along and Ride Along 2, and Clash of the Titans. Their finely-tuned creative process moves from talking deeply through plot points to outlining extensively to splitting up scenes to write individually before reconvening to edit and polish — almost always while sitting in the same room, says Hay.   

Staying accountable to one another is also key to getting the job done and proved especially valuable in another, somewhat larger writers’ room they recently were a part of, for The Mysterious Benedict Society, which premiered at the 2021 Tribeca Film Festival and began streaming on Disney+ on June 25. The eight-episode series, created by the versatile duo, marks their foray into television and had them penning dialogue and directions with showrunners Todd Slavkin and Darren Swimmer and other writers.

Based on Trenton Lee Stewart’s best-selling novel of the same name, and wrapping this past February after a five-month shoot in Vancouver, The Mysterious Benedict Society is a quirky, fun, and timely romp that follows four gifted orphaned children as they save the world from a debilitating state of anxiety brought on by a barrage of bad news. Emmy winner Tony Hale — as both Mr. Benedict, who recruits the tween team, and Mr. Curtain, who is behind the crisis — stars alongside Kristen Schaal and a talented ensemble cast.

The Credits chatted with Hay and Manfredi about adapting the beloved book, landing Hale for the lead(s), and working on the shoot from afar. This interview has been condensed for length and clarity.


Your body of work is quite eclectic. What about this story, ostensibly for kids and families, made you want to become involved and adapt it?

Phil: At least for me, what really drew me to this was the sense of sophistication in the book and the sense of the wit and playfulness, and honestly the sense of addressing some really big things. We’re trying to tell a story about an age where there’s a plague of anxiety on the world that we’re depicting, similar to the world that we live in. This was a welcome chance to work on something that was coming from a different life force, you know, a very positive, very empathetic life force.

Matt: Yeah, the books are so full of joy and they’re never ‘kiddie.’ It treats kids with a level of respect and sophistication. And also, the kids are orphans or they’ve been abandoned, so there are a lot of very deep themes going on. There’s an undercurrent of stuff going through this lighthearted adventure. And we also like the opportunity to just be really weird [laughs]. It’s a very strange and weird and offbeat show.


Tony Hale. Courtesy Disney/Diyah Pera.


What are the challenges of creating content that entertains both children and adults?

Phil: We just inherently had a take on this material. We never ever looked at it as a ‘kids show.’ One of the biggest changes we made from the book was to create a very large parallel storyline for the adult characters, but again, the kids in the show feel very real and very clear-eyed. Some of the most sympathetic moments that these kids have is their ability to look at a world that is very stressful with a sort of emotional honesty and vulnerability.

Matt: When we sold the show, it was originally going to be on Hulu, and when we were moved to Disney+, which we were really excited about — we were already a few episodes in — there was never any pressure to change it to fit ‘the Disney model.’ I think that their vision for the show was definitely aligned with ours, so we felt creatively supported and it was just a complete positive in terms of landing at that home.


L-r: Mystic Inscho, Seth Car, Emmy Deoliveira. Courtesy Disney/Diyah Pera.


Switching networks mid-stream must have been scary.

Phil: It can often be very difficult to switch networks or switch studios along the way. The thing that was great about this experience with Disney is they just immediately put all their muscle behind what we were trying to do and accepting that it was — and loving it, it seems — that it was strange and offbeat, something that had just an individual character.

Were you regularly on the set?

Matt: We were not. We were watching from monitors in our respective homes because we were starting right in the middle of the pandemic and they were very limited in terms of who could be on set. As much as we wanted to be there, we had a fantastic, creative team with incredible communication, so we watched from monitors at home every take of every show and we would text up notes to the director’s assistant and to the script supervisor and we would be able to communicate that way.

Phil: It was a very unique experience to produce something this way. Normally, we would have been there. In many ways, it was strange being remote, but in another way, we could be there all the time. And interestingly, between setups, we could be in a production meeting for the next episode or looking at costumes for three episodes down the line. We did a lot of Zoom cocktails with Tony Hale that were wonderful.


Kristen Schaal. Courtesy Disney/Diyah Pera.

Let’s talk about Tony Hale. Why was he the one to play not one role, but two, as Mr. Benedict and Mr. Curtain?

Matt: He was the one. He came up incredibly early in the casting process and once his name came up, we couldn’t see anybody else. In the book, Benedict is a little older and we wanted a little bit more of a paternal as opposed to a grandfatherly vibe between him and the kids. We’re such big fans of Tony. He’s so, so funny. But what we love about him is he’s got a real soulfulness. He kind of exudes kindness and heart.

Phil: It’s very rare when you have that feeling, ‘oh, this is the person,’ and then of course what are the chances that we’ll actually be able to get him? We clicked with him right away. We were so grateful because it really is impossible for us to imagine anybody else in this part because he carries the values of the show.

Tony Hale. Courtesy Disney/Diyah Pera.


How did he go beyond your words on the page?

Phil: He really bought into the voice that we were bringing to the characters and to the show and very deeply connected with it, so we were on the same page from the beginning. But we had this ritual where the week before shooting any given episode, we would just walk through the entire thing with Tony on Zoom. It’s really fun when you get to this level with an actor, where it’s really microscopic, targeted, interesting things about a word choice, where to place a pause — it’s really precise. And sometimes those sessions were him asking us for more background on why things were happening, and so it was a very fertile time.

Matt: I probably would have said the exact same answer as Phil. But this cast that we had, it was such a pleasure to work with them, because their questions were thoughtful and precise. The amount of time they spent thinking about their characters and the questions they came up with were so much fun to discuss and go through.


This article was originally published in The Credits.




The USMCA/CUSMA is One Year Old: What Has Been its Impact on Copyright, Content and Canada-US Cultural Relations?

July 1, apart from marking the 154th Canada Day, was the first anniversary of the entry into force of the “new NAFTA”, now labelled the USMCA (the US-Mexico-Canada Agreement). Canadians, being a stubborn lot, have decided to call it the CUSMA, just because they can. Whatever you call it, reaching agreement with a Trump Administration determined to blow up the original agreement was no small task for Canada, or Mexico. Although Mexico is an equal partner, I am going to concentrate on the implications for Canada (and the US) in this blog with regard to what the Agreement does, and does not do, in the area of copyright, culture, and related fields such as digital services, and to take stock of what has happened in the past year.

Renegotiating NAFTA

Renegotiating NAFTA was no easy task. Trump campaigned on a commitment to renegotiate or tear up the Agreement while Canada’s objective was to preserve as much of it as possible. The essence of the dilemma was summed up by then Commerce Secretary Wilbur Ross who commented that the negotiation was difficult because the US position was all “demand” and no “give”. “We’re asking two countries to give up some privileges that they have enjoyed for 22 years. And we’re not in a position to offer anything in return…”. Nonetheless the three countries finally managed to reach agreement. The fact that much of the original NAFTA was preserved was seen as a victory by Canadian negotiators. The biggest changes were in auto production, with new requirements imposed to try to limit the amount of low-cost Mexican labour involved in the manufacture of vehicles. But not a lot changed. Right after the conclusion of the agreement, the US imposed aluminum and steel tariffs on its NORAD and NATO ally Canada (using national security as the pretext, no less), and to this day continues to apply punitive import tariffs on the import of Canadian softwood lumber (despite unprecedented demand for building materials in the US, shortage of supply and all time high prices for consumers), while Canada continues to find technical ways to frustrate US dairy farmers from gaining a greater share of Canada’s highly protected dairy market.

Renegotiating NAFTA wasn’t just a question of rollbacks. The US set out some negotiating objectives that touched on the area of copyright and digital trade and it achieved some of those objectives– but by no means all. In Canada, there was hope in some quarters that the renegotiation could be used to advance some domestic agendas or reforms. Canadian educational publishers were as unhappy with the new education fair dealing exception introduced into Canadian copyright law in 2012 as were US publishers, given the resulting refusal of post-secondary institutions to license content from the publishers’ copyright collective, Access Copyright. However, renegotiating copyright exceptions was not a priority for either country. If the educational exception is to be narrowed or removed, it will have to be done through domestic legislation. Currently the key litigation (Access Copyright v York University) over the issue of educational fair dealing and mandatory tariffs for use of published materials is before the Supreme Court of Canada, on appeal from the Federal Court.

Extending the Copyright Term in Canada

While the USMCA did not deal with copyright reform in Canada nor did it change Canada’s rather ineffectual “notice and notice” system for dealing with online infringers, it did deal with some copyright and content-related issues, both broad and narrowly targeted. On the broad front it dealt with the longstanding issue of the length (term) of copyright protection, extending it in Canada by an additional twenty years to bring the period of protection in Canada in line with that in the US, the EU and most of the developed world. When implemented (more on that below), this extension will not only benefit Canadian rights-holders in Canada but ironically, will bring them additional benefit in the EU because the EU extends the benefits of the longer period of protection to artists from non-EU countries only on a reciprocal basis. With respect to the US, extension in Canada provides greater equity with respect to US creators in Canada since the US offered the longer term of protection in the US market to Canadian rights-holders, even though Canada did not offer equivalent protection to Americans.

Implementation Still in Progress

The actual implementation of Canada’s term extension commitment is still pending as, under the terms of the USMCA/CUSMA, the Canadian government was accorded 30 months from the date of entry into force of the Agreement to deal with this issue. Thus, it must come into effect no later than December 31, 2022. Exactly how Canada will implement its obligation is still somewhat of an open question. The simplest, most straightforward and most sensible option is to simply extend the existing “life of the author plus 50 year” term by an additional twenty years. That is what all other countries that have extended the life of the copyright term beyond the Berne Convention minimum of “life plus 50” have done. But there are those in Canada who, having opposed the term extension in the first place, now want to make it as complicated and difficult to access as possible by instituting a “trip wire”, a requirement for registration in order to obtain benefit of the additional twenty years. No other country has done this, and it is arguably in violation of the Berne Convention (to which Canada is a signatory). Berne requires an author’s copyright to be awarded automatically upon creation of a qualified work, with no additional registration requirement. Berne also establishes a minimum period of protection but has no restrictions on adding extending the period of protection beyond the Convention minimum.

Earlier this year the Department of Innovation, Science and Economic Development (the arm of the federal government with statutory responsibility for the Copyright Act) issued a consultation paper on issues relating to term extension. As I wrote at the time (“Canada’s Copyright Term Extension Consultation: Why all the Tinkering Around the Edges?”), the focus was not so much on the registration issue as on other tangential questions mostly of interest to the library community, such as orphan and out of commerce works. This will not stop copyright minimalists from attacking term extension as being an economic drain on Canada through an outflow of royalties, a conclusion unsubstantiated by facts, nor those advocating for the additional registration requirement in order to frustrate as much as possible the implementation of the CUSMA commitment. The full list of respondents to the consultation paper is available here. It is widely supported by the creative community.

Then There was the Super Bowl

Term extension was perhaps the broadest copyright-related issue dealt with by USMCA/CUSMA. The most targeted and specific, however, was Annex 15-D of the Agreement, dealing with Super Bowl ads. Yes, you read that right. Super Bowl ads. Hardly the substance of an international trade agreement, but hey, if you can achieve your goals through the leverage of a trade agreement when you can’t get it by other means, go for it. The issue was pushed by the NFL and supported by Bell Media, which licenses the Super Bowl broadcast in Canada. It’s all a bit complicated and will be a mystery to US readers. Essentially Annex 15-D removes an exception that the Canadian broadcast regulator, the CRTC, had permitted whereby Bell Media could not require Canadian cable and satellite platforms to substitute Canadian ads (i.e. Bell’s ads) for the US ads when Canadians watched the game in Canada on the original NBC feed.

What is “Simsub” Anyway?

The situation arises because the major US networks are available on Canadian cable systems under a compulsory licence issued by the CRTC. In addition, the CRTC allows Canadian broadcasters who have acquired the rights to US programming also being shown on US television to require that the Canadian cable and satellite distribution systems substitute the ads carried by the Canadian station into the US feed shown in Canada, as long as the programming is being shown simultaneously in both Canada and the US. This is known as simultaneous substitution or “simsub”. In most case simsub is not a big deal for Canadian viewers because an ad is an ad and arguably local ads are more relevant. But when it comes to the Super Bowl where the ads are considered by many as an integral part of the programming, many Canadian viewers want to watch the game with the original ads.

More Business for Border Bars

In 2016 the CRTC issued a decision allowing this if Canadians chose to watch the game on the US feed. Bell appealed but wasn’t sure it would prevail. Given the length of the appeal, in both 2017 and 2018 the CRTC decision prevailed resulting in a reported $10 million dollar loss in ad revenues each year for Bell (and by extension threatening the value of the NFL’s contract with Bell), because Canadian advertisers could not be assured of reaching the full Canadian audience. Although in the end Bell’s appeal was upheld by the Supreme Court of Canada, by then both Bell and the NFL had lobbied the US government to make repeal of the simsubexception a key demand. Remarkably, they were successful and the USMCA now includes a requirement that Canada cannot remove simsubfor individual programs unless it ends the practice for all programming. As a result, if Canadians want to watch the Super Bowl with the US ads in 2022 they will have to hit the bars of Blaine WA, Buffalo NY or other border drinking establishments—assuming the border is open by then. At least the USMCA will improve cross-border services trade.

The Canadian Cultural Exception

If Super Bowl ads are an example of how “down in the weeds” trade negotiators can get, the Canadian cultural exception (Article 32.6) is one of the loftier goals. Canada insisted that it had to maintain the cultural exception, a provision that dated back to the original Canada-US FTA in 1988. Under this provision, Canada could take exceptional measures to override commitments in the Agreement to preserve and protect Canadian culture. Culture is defined in the USMCA/CUSMA by reference to a long list of content related industries (film, publishing, newspapers, music, broadcasting). The catch is that if Canada invokes this clause, the other parties to the Agreement are entitled to take retaliatory measures of equivalent commercial effect against any other sector. This is obviously designed to discourage Canadian policy makers from using discriminatory measures to support Canadian culture at the expense of US content producers.  For example, if Canada were to decree that cinemas had to charge an extra fee to consumers to watch US as opposed to Canadian films, in a (misguided) effort to promote Canadian film production, this would be a discriminatory measure against which retaliation would be allowed within the terms of the Agreement. However, if Canada put a tax on all cinema goers, and used the tax revenues to subsidize Canadian film production, that would not be inconsistent with the Agreement and would not justify retaliation.

Does CUSMA Stop Canada from Passing Legislation affecting Internet Platforms?

Recently the cultural exception has been highlighted as one means that Canada could use to defend (proposed) legislation that would require major internet platforms like Google and Facebook (which of course happen to be US companies) to pay news content providers for use of news content on the platforms, similar to the requirements introduced in Australia. Critics of the proposal have argued that such an action would be contrary to the USMCA, but for the cultural exception clause, which they argue would not be used because of the threat of US financial retaliation against non-cultural sectors. This is a red herring. Canada does not need to invoke Article 32.6 to defend actions to require internet platforms to reach content compensations deals with dominant internet platforms, nor, for that matter, to subject the platforms to oversight requirements relating to distribution of harmful content online. There are plenty of provisions of general application in the Agreement that can be used. One also has to consider to what extent the US government would be prepared to champion Google and Facebook, digital giants that are already under close scrutiny in the US for anti-competitive practices.

….Or Holding Platforms Responsible for Harmful Content?

In the digital chapter, the CUSMA includes a particularly controversial provision, Article 19.17 that provides internet platforms with limited immunity from civil liability for content posted by users. This article is based on Section 230 of late 1990s US legislation, the Consumer Decency Act. The misuse of this provision to shield internet platforms from any civil liability or to hold them accountable for harmful or illegal user content distributed (and monetized) by them has led to widespread demands for reform in the US. It almost did not make it into the USMCA given push-back from Democrats, and should never have been includedin a trade agreement. It’s not as bad as it could have been, however. The USMCA commitments left sufficient room for the continued application of existing Canadian law without any requirement to enact legislation to create new civil liability immunities for the internet platforms. As I pointed out in an earlier blog on this topic (“Did Canada Get Section 230 Shoved Down its Throat in the USMCA?”), the Parties to the Agreement have the freedom to implement Article 19.17 in various ways including through ongoing application of common law. Existing secondary liability doctrine and precedents will continue to apply in Canada.

The USMCA One Year Later

The fact that the first anniversary of the USMCA/CUSMA passed without much brouhaha is a good sign that things are generally working well. The COVID pandemic has of course challenged global trade patterns, including those in North America but considering that the Canada-US border has been closed for almost a year and a half now except for essential traffic—hopefully it will reopen very soon—two way trade and services have continued to flow with few new trade disruptions,  although volumes were down quite significantly (Canadian exports to the US declined by 15%; imports declined by 11%). Without the security of the established rules and practices enshrined in the USMCA/CUSMA, the situation could have been far worse.

The two countries are intertwined economically in many sectors, including copyright, cultural and content industries. The “new NAFTA” has helped to maintain a mutually beneficial relationship in these areas and laid the foundation for further work.

This article was originally published on Hugh Stephens Blog.