Stephen Thiele (00:00):

Does your guest have the right to remove your podcast? There's a rare incident where the podcaster won't take it down, and I understand there have been some lawsuits threatened with respect to copyright infringement.

Gavin Tighe (00:18):

Hello, and welcome to the next episode of Beneath the Law, Gavin Tighe here with Stephen Thiele. Stephen, how are you this evening?

Stephen Thiele (00:25):

I'm pretty good, my friend. How are you doing?

Gavin Tighe (00:27):

I'm feeling pretty good. It's interesting. We're doing these podcasts and podcasting. We're old guys. So talk about what is a podcast? I don't even know. I'm so well, no kidding. So a podcast, honestly, 20 years ago, it'd be like, what the heck is that? And now it's just the complete jump. I think about one of the greatest changes in my lifetime has been the way media has kind of morphed from what I'll say now, we call Legacy or Dinosaur Media, which was the only media. I mean, one of the things I can say for certain is when we were growing up in university, there was only limited sources of information. You got your information from mainstream media and everybody got the same information. Everybody may have had a different opinion on that information, but they all work from a baseline of information, a baseline of mainstream commentary, baseline of we all watched three networks in the US and that was it. And you got your news and that was it.

Stephen Thiele (01:42):

Now it's like even worse, Gavin, my understanding in Western Canada, if you didn't have cable, all you really had was C, B,

Gavin Tighe (01:51):

C. No, listen, I can attest to that. In rural Canada, you only had C, B, C because unless you had cable and not everywhere had cable. So if you had rabbit ears on your TV set, you had C, B, C, and you got one bit of information. It really was Soviet style in the sense that Pravda was it, and that was it. You've got it. That was the only information you got. So if you watch the national, that was the only news you had.

Stephen Thiele (02:24):

A hundred percent. So we're in an era where we're all like Benjamin Franklin now and all these guys who created independent newspapers that became mainstream. And now we're all creating content. We're all trying to be influencers.

Gavin Tighe (02:42):

Right? The podcasting is, well, it's curious because really there is a huge technological leap. I mean, the reality was there were only, as, you can only pick up the CBC on your rabbit ears because only the CBC had enough money to have a big aerial to broadcast from. They were the only people who had the means to communicate. Now, frankly, everybody, including jokers, like you and me, have the means to communicate. We are our own TV station. We are our own radio station. I don't need a radio station anymore. Anybody can be a Nolton Nash on the national every night if they want to be. And frankly, I think the other thing that's interesting about that is whereas in our youth, everybody, as I said, had a baseline of information, which everybody shared was one common baseline. Now it's like people can go shop around for whatever news they want and whatever facts they want, and they can choose who it is, which choir they want to join to be preached to. Frankly,

Stephen Thiele (03:51):

No. And look, there's some hidden dangers there, I suppose. But you're absolutely right. Everybody's entitled now to express their opinion cheaply and easily by creating a, whether it's a YouTube channel or a podcast. And some people have become very popular with their podcasts and are making all kinds of money.

Gavin Tighe (04:17):

Yeah, revenue. You dug up revenue, some statistics on this. It's just incredible. I mean, the statistics you dug up were that podcasting is becoming an industry, a booming industry with more than 584 million people listening to podcasts in 2025. That's a huge number. Half a billion, more than half a billion people, and another 619 million to be listening to podcasts in 26. So in other words, a growing number of people are spending a lot of time listening to podcasts. And by 2030, that market of podcasting is expected to be almost worth 18 billion.

Stephen Thiele (04:57):

18 billion.

Gavin Tighe (04:58):

Billion,

Stephen Thiele (04:59):

Not million billion.

Gavin Tighe (05:00):

That's unbelievable. And in Canada, 71% of Canadians will listen to at least one podcast at some point with 29% of Canadians spending at least five hours a week listening to podcasts, 29%. So a third of the population is spending five hours a week listening to podcasts.

Stephen Thiele (05:23):

And you know what, I can see that. I can tell you, Gavin, I don't know about you, but when I'm at the breakfast table, I'm trying to follow news of what's going on in Ukraine, or maybe I'm following sports. Right.

Gavin Tighe (05:36):

And are you doing it on podcasts?

Stephen Thiele (05:38):

Well, I'm doing that on YouTube, but I can see people doing that on podcasts too. Right? You go home, you're driving home, they got podcasts all over the place.

Gavin Tighe (05:46):

Sure. And if you're driving Exactly, I mean, it's completely replaced talk radio. Well, not completely, but you don't get live news and traffic on podcasts yet. Although I guess they have an app for that. And it seems to me that podcasting has really exploded with people out there. As you mentioned, everyone's got an opinion, everyone's got a story. So one of the things that I think is really murky about this as this, it's revolution frankly, in how people get their information is occurring, kind, unfolding as we speak. And I guess we're part of it. We are, I dunno if we're out the crest of the way, but we're trying to catch the wave. But anyways, and one of the things that people don't really talk about is what does this mean? I mean, it's a bit of a wild west, frankly, in terms of the legal framework of podcasting and whose rights are what? I mean, look, 18 billion is a lot of money, and usually there are pretty strict rules around any industry that is involved with that kind of dough. Frankly, being changing hands in terms of advertisers, whatnot, guests rights, artist rights. I mean, people are tuning into certain podcasters, not on other podcasters. I mean, it is a bit of a wild west. Where are the lines on the basketball court here?

Stephen Thiele (07:13):

Who knows? And here in Canada, we've got CRTC. I don't know if they've really got a heck of a lot of regulations around podcasting. Everybody can podcast. Do you regulate who can podcast? Do you regulate producers who can produce podcasts? If people are concerned, governments may be concerned about certain political views being expressed on podcasts. How do you regulate that?

Gavin Tighe (07:41):

Yeah. Or do you regulate it? I mean, I think it was easy. We came out of this framework where this sort of very maternalistic approach to government regulation of broadcasting, the CRTC, as you mentioned, is just like it was easy to control when there were four or five players in the ring and they had physical antennas, literally antennas, broadcasting towers, towers. Now it's like where are the podcasters? I mean, podcasters could theoretically be anywhere. You could send podcasts from your island in The Bahamas if you wanted to. And how do you regulate that in terms of if it's on most streaming services like Spotify or Apple? I mean, how do you regulate it? How does the CRTC even relevant anymore?

Stephen Thiele (08:38):

Well, other than for old style TV stations and radio stations,

Gavin Tighe (08:44):

I suppose, and they're getting strangled, then the argument would go that the overregulation of what I'll call dinosaur media or mainstream media is strangling them. When people like you and me just say whatever we want.

Stephen Thiele (08:58):

Well, look, I think we're seeing now that even people who are on radio have their own podcasts. They're trying to build a bigger listenership, and they're probably encouraged, right? And they're streaming and doing all kinds of things. So

Gavin Tighe (09:15):

Yeah, I mean, I know for sure that if I do mainstream media, if I do radio for example, it will oftentimes that the segment that I've done on radio will be put up by the radio station for streaming purposes for people after the fact. Not that anybody's really all that interested in what I have to say, but sometimes they are, I suppose.

Stephen Thiele (09:37):

And do you give permission for that? Do you own copyright in that? Very great, very,

Gavin Tighe (09:42):

Very good question. Very good question. So what's the answer?

Stephen Thiele (09:47):

Well, we know from a copyright perspective that the people who are producing or creating the podcast generally would own the copyright. This is no different than a radio program or a TV program, so producers or the creators of the content, it would be a work if it's produced by video, you've got a dramatic work. If you've got a script, you've got a literary work, we're kind of doing this without a script or we've got part of a script, we've got show notes, but I don't think we'd be calling ourselves a literary work, but even the sound recording would be subject to copyright laws.

Gavin Tighe (10:33):

I mean, it's a creative work in a sense, and it's collaborative. I mean, from our perspective, we have joint hosts, so it's a jointly authored podcast. We're kind of riffing as we go through this off of each other. So that's a joint authorship of the podcast for the purposes of copyright, right? About that.

Stephen Thiele (10:53):

Yeah, absolutely. But then the other question that comes into the mix in terms of joint authorship is what about the rights of a guest on a podcast? And there are obviously guests watching Johnny Carson, they have guests, and I'm sure they sign contracts and all that releases and all sorts of contractual provisions when somebody appears on a show. But in podcasts, everybody's doing it, and not everybody is sophisticated. So are you losing your copyright or are you surrendering part of your copyright when a guest appears on it and a guest might be under our copyright act defined as a performer.

Gavin Tighe (11:45):

Yeah, I mean, it is funny. I mean, here we are with two lawyers doing a legal podcast, and we've had guests on the podcast. We don't have a contract. We don't have a Right, exactly. Did our producer get a

Stephen Thiele (11:56):

Contract? I don't know

Gavin Tighe (11:57):

That free

Stephen Thiele (11:58):

Bad. What's our producer doing buying the same John Heal

Gavin Tighe (12:00):

Thyself lawyer, contract yourself? I mean, it is a bit of a free for all medium, and maybe in some ways, I guess there's certainly podcasts that are well beyond the agrarian version that we do, but I think it is that free for all. It is that sort of spontaneity of podcasting. I think to some extent that's made it so popular.

Stephen Thiele (12:28):

Well, look, when you think about it, if I'm appearing as a guest on a podcast that is very popular and I haven't signed any kind of contract or a release, and let's assume the creator is making money from that podcast running ads, if I own the copyright, because I've appeared now on this podcast program, could I not make an argument that I should be taking a cut of the monetization of that podcast? I don't have a

Gavin Tighe (13:02):

Contract, but you make a pretty compelling argument in the sense that if people are tuning into the podcast for the guest, which I'm presuming is the intention, otherwise, why would you have on the gas? Yeah, a hundred percent in podcasts are revenue focused in the sense there's an industry and that is being done to earn revenue. Certainly. I mean, guests are being sought because they're going to bring in the listeners. I mean, why

Stephen Thiele (13:37):

Else would you have viewership hundred? Right? So I would think that there might be a legal argument there, which is I think one of the big issues that we're seeing in a podcast today is creating a guest contract or guest release or waiver and having that guest sign that waiver before they even appear on the program

Gavin Tighe (14:01):

Or just click the box as many contracts have become every day as you've done on your Spotify account. If you're listening to this podcast,

Stephen Thiele (14:12):

I'm sorry, I'm sold. I'm still dealing with paper there. Gavin, what can I tell you? I

Gavin Tighe (14:17):

Know, seriously. Okay. Nolton the fact,

Stephen Thiele (14:21):

Boy, Robertson, please. We're

Gavin Tighe (14:22):

Still stuck in, still stuck in the ether. This is one of the things I think that is so interesting from the legal perspective. I mean, we come at this from curiously. We come at this from the generation that flipped from paper to digital, and it really is, to my mind, representative of the way the law is sort of chasing technology constantly, not just in media, but in everything. I mean, the law is an archaic and ancient profession, and it deals with things in archaic and ancient kind of ways. And I mean, it has ancient and archaic concepts. I mean, we're talking about things like copyright and whatnot, which is completely appropriate for things like novels or books or that type of thing. It protects those things. We've often talked about defamation in the world, in the old school of newspaper articles and whatnot. But in today's day and age, I mean, technology is so many light years ahead of the regulation of it, both in terms of legislative law and in terms of what I'm going to call case law, trying to catch up to it. I mean, who's the publisher anymore of anything? I mean, is it Google? Is Google a publisher? Is Google a publisher? I don't know a newspaper. No, it's completely, they don't review anything. They would say, no, we're no more the publisher than the Bathroom Wall is the publisher of graffiti. So I think that we're in this really interesting environment, and they're also in an environment where the internet and podcasting and review boards completely transcend national borders. Yet we live in a world where laws are confined to jurisdictions like provinces or states.

Stephen Thiele (16:16):

Well, you're right. And in general, that's the case. And you mentioned defamation law. Under Ontario's Libel and Slander Act, we have basically an archaic notice provision in terms of you need to be a broadcaster or a newspaper, and a broadcaster is defined as using the old technology. So if somebody defames somebody on the internet, you don't need to send out that notice of libel because it doesn't fall within a broadcast. But isn't this a broadcast?

Gavin Tighe (16:50):

But not that even matters mean, the theory behind the old notice of libel was that it gave the broadcaster the opportunity to apologize in a timely way, a timely way. I mean, a timely way. Now with respect to tweets or what have you or whatever, is literally a nanosecond. I mean, it's like the next moment is the timely way. I mean, issues are, the lifespan of a media cycle today is probably about 15 minutes.

Stephen Thiele (17:23):

Well, and you've got all kinds of jurisdictional issues too, and the courts had to respond to that, right? If I'm recording a podcast in, I don't know, The Bahamas, and I say something defamatory about somebody up in Canada, I've watched it up in Canada. Well, that gives Candace some jurisdiction.

Gavin Tighe (17:43):

What if I have a guest on from Hong Kong? The law is very, how can I put it? The law is very much stuck in the 1980s in the sense that it's time and place specific. And I think one of the things about podcasting is it's completely transcends time and space. I mean, it's like you could be anywhere. I could be literally anywhere podcasting and publishing everywhere. So I mean, who

Stephen Thiele (18:15):

Regulates podcasts? Well, and I think those are some very interesting questions for copyright too, because we're looking at from the view we're recording here in Canada, so one would assume that our copyright law would apply to this, but does foreign just jurisdiction copyright law apply at all? I don't know if anybody's really considered that question. Maybe not. I don't know the answer to that question. Please. In terms of this podcast, copyright law is not my forte or our forte, so we're kind of just thinking out loud and brainstorming a little bit. But within our copyright act for guests, there are things called moral rights. What can you do with the guest? Can you edit what the guest has

Gavin Tighe (19:05):

Said? Interesting. Interesting. And with the advent of ai, you can edit anything. What do you do, let's say, I mean, with the advent of ai, here's one, lemme throw a curve ball in here. Let's say you had a phony guest. Let's say you had, I don't know, you had a real person, but you had a fake kind of narrative that they were saying, an AI driven, I mean, what would your remedy be? What would the moral rights of that guest be? What could they do about it? Take it down from where? Who's going to order that? A court where? Which court?

Stephen Thiele (19:45):

Yeah. Well then as a producer, would you put that into the contract that we could use ai, right, to alter, let's say your image or to alter your background

Gavin Tighe (19:57):

Or to alter what you said? I mean, taking snip mean. We've heard of all sorts of ai, fake ai, where they've taken a voice sample from one person, and it's used in scams all the time. I may hear about the grandma fraud where they've got the AI using the voice of the grandson saying, I'm being arrested. I need you to bring some money down to the police station. And it's grandson's voice, but it's fake. I mean, you could see all of the technology running so far ahead of the ability of enforcement mean. What do you do about that? What do you bring in junction application to take that down?

(20:39):

And that even raises another issue is I think there's been cases on this, probably this is another topic for another episode, but where people asserted copyright over their voice because it could be used for ai and sort of the tone of your voice and what have you is a unique feature. It's like a audio fingerprint of your persona, and people are copywriting their voice or seeking to in order that if it's used in some order of AI production, what have you, that they're entitled to some royalty for the use of their voice. Incredible kind of where technology has gone so far, far, far in front of what the regulations are.

Stephen Thiele (21:22):

There are certainly a lot of probably endless permutations as to how technology is evolving and how it's going to be used and what rights people have. But I think that gets back to our point and kudos to our producer for recommending this kind of podcast to us. Because I took a look at contracts for podcasters, and some contracts are extremely simple, which is great. I think that's important to have a simple contract, but some are a little bit more meaty or more robust, I would say, in terms of what the right of the guest is. And one of the things that has come up as an issue, does your guest have the right to remove your podcast? And that gets into this cross of the performers rights with respect to copyright. From what I understand, most podcasters that receive that kind of a request actually do take down the podcast, but a person's views may change. And so they're making this request, or they've changed jobs and they're trying to get into another specialty. So they're making a request to take down the podcast, and there's a rare incident, or it might be a little bit a smaller percentage where the podcaster won't take it down. And I understand there have been some lawsuits threatened with respect to copyright infringement. In those cases,

Gavin Tighe (23:05):

It would raise these same old issues as I think in terms of those kind of contracts, you'd have to have a specific jurisdiction, a tournament to the court and or to an arbitration tribunal of some description. I guess it's endless as to what the parties could agree to

Stephen Thiele (23:22):

Any other contract. But because we're dealing with a medium where anybody can be a podcaster, there's probably not a heck of a lot of sophisticated contracts out there. People want to keep it simple because they've got guests who are not necessarily high profile guests. They're just running a podcast. They get their neighbor to be a guest on their podcast, and then somebody whispers into their ear, Hey, by the way, you've got copyright. And all of a sudden that podcast had a million views for whatever reason.

Gavin Tighe (23:58):

Exactly, exactly. And the neighbor who's on the guest is getting none of it, which is completely inequitable from a whole pilot perspective. But I mean, I guess it comes back to how would you compel a podcast or to take down an episode if you were a guest and you wanted it taken down for whatever reason, or they breached their contract and they didn't pay you what they agreed to, they just pocketed the money. If that podcast is not in your jurisdiction, we're doing this from Canada. If there was an order of a Canadian court said, take this down, we do it. But if there was an order or I don't know, some court in Kazakhstan, we may not

Stephen Thiele (24:47):

Do it. And vice versa, are we going to have a guest from Kazakhstan talking? Maybe we should is Borat free,

Gavin Tighe (24:59):

I guess. And vice versa, if it were a podcast originating from some other jurisdiction and we didn't want something out there that we had a right to, we'd have a Canadian big deal. You'd have to enforce that order in whatever jurisdiction that podcast emanated from.

Stephen Thiele (25:18):

Right, right. Well, and our creator, our producer, sorry, is recording this. So he's got the file. What if the producer is in Malaysia?

Gavin Tighe (25:30):

Right,

Stephen Thiele (25:30):

Right.

Gavin Tighe (25:31):

Okay.

Stephen Thiele (25:31):

So yeah, you could

Gavin Tighe (25:33):

Enforce or the server that it goes. I mean, I don't know exactly. So again, we've got laws, laws trying to regulate what is a borderless international medium that can originate from anywhere, and as I said, is broadcast literally everywhere, which is way beyond the capability of traditional media, at least it was 40 years ago. Now, of course, they've all leaped onto the same medium that you can get everything. You watch British football live and in person. That's the beauty of the internet. At the same time, it is virtually impossible, and in my experience, to regulate it and to get major internet providers to take stuff down, they don't care.

Stephen Thiele (26:22):

Oh, certainly we've experienced that or we've seen that with respect to defamation, right? Absolutely. Google is very resistant or has been resistant in some court cases, as have others.

Gavin Tighe (26:35):

Exactly, exactly. Facebook, you do name it. So I think, but it comes right back to, is that who is the regulator of the internet? Nobody, as far as I know, nobody, because there is no international body to regulate the internet. There is no international body to regulate podcasts. There's no CRTC of podcasting, not with any teeth, that's for sure.

Stephen Thiele (27:06):

Sure. And I think countries have to play catch up. You actually probably need some international treaties on this. And as we all know, certain countries will be willing to enter the treaty and others will not, and

Gavin Tighe (27:19):

Enforce it

Stephen Thiele (27:21):

A hundred percent.

Gavin Tighe (27:22):

I mean, we've all seen lots of treaties. We're up in Canada, the 51st state. We have lots of treaties that they're worth very much at the moment, at least in terms of trade. So treaties are only as good as the parties who agree to them and decide to keep their contracts to a large extent.

Stephen Thiele (27:40):

Well, we know that certain treaties with respect to the use of nuclear weapons have been torn up by countries, and they, right. Countries allowed to withdraw from the contract. What are you going to do?

Gavin Tighe (27:52):

Yeah, they're observed in the breach and often cases as well. But I think that it's really interesting because I think the reality of media has so shifted from the framework of its regulation that for a legal podcast, trying to talk about what's the law with regards to podcasting. I have no idea. I mean, you could make arguments, but it's certainly you're trying, trying to regulate air. I mean, how do you do that?

Stephen Thiele (28:31):

But I think, Evan, you make a really good point because you've got to almost think outside the box, right? We're thinking about this as, okay, it's a copyright issue, and fundamentally it may be a Canadian copyright issue, but is it really fundamentally a Canadian copyright issue? Who knows? Knows until it goes to court? What is the court going to say in

Gavin Tighe (29:00):

What court? Which court? I mean, let's just figure out where we even file. I don't know. Maybe you could file in Canada, but I mean, one of the things that you always ask yourself before you file any kind of a claim or proceeding is, what am I going to be able to do with this? If I get a judgment, what am I going to do hanging on the wall? I mean, judgments is only as useful as the ability to enforce it,

Stephen Thiele (29:29):

Right? You're right. You're going to get a declaratory order to enforce where,

Gavin Tighe (29:34):

So it raises a great question as if you've heard this podcast before. We have a mantra that we like to say that is, if everybody is, no one is above the law, then everyone is beneath it. But that presumes that there is a law. Maybe we're in the podcast world, maybe there isn't any,

Stephen Thiele (29:52):

I don't know. We'll see some laws in the future, perhaps.

Gavin Tighe (29:54):

I think so. And I think it's time that governments got together to try to regulate what is effectively an international regime, potentially, or maybe not. Maybe the answer is the free expression and exchange of ideas on the internet should never be regulated, and maybe there's some meritt in that too. Anyway, Stephen, always a pleasure and a great conversation as always. And sorry if we never came to any real conclusions, but we're really waiting as lawyers for the law to catch up to reality. So as we always say, if no one is above the law, then everyone is beneath it. Except if you're a podcaster.