Earlier this month it was reported that the department of the New Zealand government responsible for leading the current review of the Copyright Act (1994), the Ministry of Business, Innovation and Employment (MBIE) had issued a welcome statement withdrawing the revised objectives paper for the review it had released back in November of last year. MBIE’s statement reads, in part;
“We are writing to let you know about the latest stage we have reached in the review. In November 2019 we published a paper outlining revised objectives for copyright law. This paper was developed in response to the submissions on the Issues Paper we had previously received in April 2019. The main change we had proposed to the revised objectives was to ensure they more expressly recognise the rights and interests of people involved in creating copyright works.
Some stakeholders have raised concerns about this paper and their inability to provide formal feedback on it. It is important to MBIE for all stakeholders to have trust and confidence in the review. For this reason, we are withdrawing the revised objectives paper.The next stage in the review will be to formally consult on potential revisions to the objectives. (Emphasis added). This will ensure all stakeholders have the opportunity to fully contribute to this part of the process in an open and transparent way.
We expect to carry out this further consultation as early as possible in the new Parliamentary term. Following this, we will consult on an Options Paper.”
The New Zealand Society of Authors, who reported this turnaround, noted;
“We were delighted to secure the support of Minister Faafoi to achieve this and look forward to re-engaging with MBIE to develop objectives for the Review that will deliver legislation that will underpin the growth of New Zealand’s creative economy.”
This is a welcome rethink of the copyright review process and a needed pullback of a flawed rewrite of the objectives of that review undertaken in mid-stream and without public consultation. This skewing of the objectives threatened to undermine the integrity of the entire copyright review process. MBIE, and the Minister, are to be congratulated for listening to the voices of concerned stakeholders by withdrawing the current paper so that any potential revisions to the objectives can benefit from stakeholder input.
Although the copyright review process has already been underway for a couple of years, the stakes are such that it is important to take the time needed to get this right. Copyright law revisions do not occur often and are usually drawn out owing both to the extent of the economic stakes involved and the range of differing views on the issues. In particular there is the usual tension between copyright creators and copyright-creating industries (publishing, music, film production, etc) that seek to protect the revenues generated through content creation by limiting exceptions and penalizing piracy, and industries that use content for a variety of purposes (educational institutions, internet platforms, social media and content aggregators) who prefer to do so by paying as little as possible (in fact preferably nothing) for the content they use by expanding copyright exceptions and in some cases being able to turn a blind eye to content theft with few if any consequences.
The process formally started in November of 2018 when MBIE issued an Issues Paper that laid out the background, the issues at play, the terms of reference and objectives for the review, seeking public comment and input. Following the public input and consultation process which closed in April 2019, the next step would normally be to evaluate that input and formulate recommendations or options, to be presented in an Options Paper that would be subject to Parliamentary and further public review. However in November of 2019, part way through the process of evaluating input, MBIE issued another paper, a 30 page revised Objectives Paper, MBIE’s approach to Policy Development, that changed the objectives of the review. Although wording changes were few, they appeared to reflect a mindset that was worrisome for rights-holders suggesting the changed objectives could lead to potential negative outcomes. There was a subtle shift in the emphasis of the objectives away from incentivizing creativity to instead focus on supply of creative works. There were also suggestions that copyright law should play a role in determining the economic balance between individual creators and the industries that promote creative content, instead of the current practice of freely negotiated contracts. Back in May, I prepared a detailed commentary on the revised objections for NZ Content Café (here). My conclusion was the following;
“What is the sum total of all this tinkering with the objectives of the Copyright review? Why go through such a lengthy process to issue a new 30 page paper (full of dubious premises) prior to producing the Options? Is it to lay the foundation for a series of recommendations that will end up gutting the traditional copyright system and greatly widen exceptions? The tone of the paper and the shifts in emphasis suggests that this may be the case. One hopes not but perhaps MBIE’s attempt at transparency has revealed more about the mindset of the drafters of the document than was intended.
In its conclusion, the MBIE paper states that “Objectives will be used later in the review to assess options for addressing problems with the status quo”. That is why it is very important to get the objectives right before the Options Paper is published. If the foundation for building policy recommendations is not level, then the structure that emerges will likewise be tilted and unstable. Further consultation on the objectives before the Options Paper is produced would seem to be highly advisable.” (emphasis added).
I am sure that others also made the same point and I’m delighted to see that this is now what is going to happen.
There is still a long road to follow before MBIE, New Zealand stakeholders and legislators will be ready to develop and act on recommendations for updating the NZ Copyright Act. A review is needed in order to take into full account the many changes to copyright practice and use that have occurred in the digital age while still respecting the fundamental premise of copyright. As this review proceeds, it is reassuring to know that the review process will now be able to benefit from full stakeholder input and consultation throughout, including on the all-important issue of determining the objectives of the exercise. Withdrawing MBIE’s Revised Objectives paper was the right step to take in helping make this happen.
These days the World Trade Organization (WTO) is facing many challenges. To say that it has fallen out of favour with the Trump Administration would be an understatement. The US is currently actively working to undermine the dispute settlement process of the WTO by blocking new appointments to the organization’s Appellate Body, on the grounds that it does not like the fact that a number of WTO decisions have gone against the United States for its use of unilateral trade remedy actions against other WTO members (despite the fact that over the years the US has won far more WTO dispute cases than it has lost). In addition, since the launch of the Do’ha Round of multilateral trade negotiations in 2001, the members of the WTO have been unable to resolve significant differences between developed and developing countries over whether and how to bring new areas of trade and subsidies under WTO disciplines. As a result, the Do’ha Round has stalled, undermining the WTO’s credibility. To add to the WTO’s current woes, recently its Director-General, Roberto Azevedo, announced his early and unexpected retirement, further throwing the Organization into crisis.
Despite all these trials and tribulations, however, the WTO remains an essential component of the international trading system and continues to play a critical role in adjudicating international trade disputes. With the effective temporary demise of the WTO Appellate Body as a result of US actions blocking appointments of new members, a number of WTO members have agreed to bypass the statutory appeals process by establishing a contingency appeal arrangement whereby these members (the EU, Australia; Brazil; Canada; China; Chile; Colombia; Costa Rica; Guatemala; Hong Kong, China; Mexico; New Zealand; Norway; Singapore; Switzerland; and Uruguay) can continue to exercise their right to a review of WTO panel decisions by an appeal body when the disputes are among themselves. Moreover, the WTO continues to establish panels of experts on a case-by-case basis to adjudicate trade disputes between WTO members, and these cases are proceeding. It’s also worth noting that not all WTO panel decisions are appealed (over the years, the rate of appeal of panel decisions has varied between 40 and 100%).
So what does this history of the WTO dispute settlement process have to do with copyright issues? If you are a sports rights-holder (such as those who own the rights to the broadcast of major European soccer leagues) who has licensed content to the Qatar-based sports broadcaster BeIN Sports, and whose content has been openly pirated by the Saudi-based broadcaster BeoutQ, the answer is “everything”.
As I documented in a blog posting (Content Piracy as Hybrid Warfare) last year, the Saudi regime has been pirating BeIN’s signal as a form of non-traditional warfare against the Qatari government, which also happens to own the Al-Jazeera news network, a perennial thorn in the side of the Saudis. Despite pressure from the US through the US Trade Representative’s annual report on global intellectual property issues, which specifically called out the Saudis on this issue, a thin veil of deniability and obfuscation was maintained by Riyadh. Now, thanks in large part to the role of the WTO, this has been stripped away and the situation is changing.
BeIn Sports, unable even to hire legal counsel in Saudi Arabia to pursue its claims of piracy owing to Saudi obstruction, appealed to the Qatari government for help and Qatar filed a case against Saudi Arabia in the WTO, with a number of other WTO members (Australia, Bahrain, Brazil, Canada, China, EU, Japan, Norway, Russia, Singapore, Ukraine, the UAE and the US) joining and submitting briefs as interested third parties. Only WTO members, not companies, can bring WTO cases. On June 16, a WTO panel found that Qatar had clearly established that the pirated BeoutQ network was operated by individuals within the criminal jurisdiction of Saudi Arabia and that the Kingdom had not only failed to take any action against them but had prevented a Qatari company (i.e. BeIN Sports) from exercising its rights to civil enforcement of its IP rights. The WTO carefully skirted the issue of exactly who was responsible for BeoutQ’s piracy but it is clear that the service is well connected to the Saudi political elite. While the panel partially upheld the Saudi argument of national security as a reason for preventing BeIN Sports from accessing legal counsel, a ruling trumpeted by Saudi media sources, the panel ruling confirmed there was a clear violation of WTO rules by Saudi Arabia.
The panel rejected the Saudi argument that it had no jurisdiction owing to Saudi Arabia’s invocation of the WTO national security exception based on the fact that it had severed diplomatic relations with Qatar. All of the third country interventions related to the Saudi national security argument, with almost all opposing this for one reason or another. Among the third party intervenors, only Bahrain and the UAE, who are allied with the Saudis against Qatar, and the United States, supported the Saudi’s national security argument. In the case of the US, it takes the position that national security is whatever a country defines it to be (self-judging), regardless of circumstances. The panel rejected this position and concluded by recommending that “Saudi Arabia bring its measures into conformity with its obligations under the TRIPS Agreement.” (TRIPS deals with intellectual property disputes under the WTO framework).
Saudi Arabia must now decide whether it will appeal the WTO panel finding, and given the current suspension of the Appellate Body’s proceedings, this could drag out for a considerable period of time. Ultimately the Saudis could refuse to adopt the panel’s decision, in which case Qatar could seek compensation through authorized trade retaliation. However, the situation is unlikely to come to this and while it will be loath to admit culpability, there are signs that Saudi Arabia is finally recognizing the need to deal with the sports broadcast piracy issue.
Certainly not coincidentally, on June 22 the Saudi Authority for Intellectual Property (SAIP) announced that it would be blocking 231 websites that violate the intellectual property law including a number that distribute Illicit Streaming Devices (ISDs), a prime means of facilitating sports content piracy. BeoutQ’s direct satellite broadcast service was shut down late last year, but continued to be available through ISDs via the internet. In addition, the President of the Saudi Arabia Football Federation has written to UEFA, European Football’s governing body, the English Premier League (EPL), international football federation FIFA and the International Olympic Committee acknowledging that Saudi Arabia has a responsibility to fight broadcast piracy and respect intellectual property rights.
This sudden conversion is linked not just to the unfavourable WTO decision but also to the desire of the Saudis through their sovereign wealth fund, whose Chairman is Crown Prince Mohammed bin Salman, to purchase a major EPL team, Newcastle United. The EPL’s broadcast deal with BeIN Sports was threatened by BeoutQ’s piracy, and EPL, UEFA and others had tried unsuccessfully to bring suit in Saudi courts. For its part, BeIN Sports had lobbied the EPL to block the Saudi purchase of the English team. The Newcastle ownership bid, which must be approved by the EPL, is certainly not unrelated to the apparent change of course, but there is no doubt that pressure from the WTO decision (first unofficially released in May) is an important factor.
While shutting down BeoutQ will not end the standoff and the ongoing sniping between the Saudi and Qatari regimes, the broader Saudi interest in establishing itself as a major investor in premier sports leagues, combined with the pressure of an unfavourable WTO panel finding (and bilateral pressure from the US and EU) will hopefully lead to an end to widespread, state-tolerated if not state-sponsored content piracy in the Middle East. The WTO demonstrated its value by playing an important part in bringing trade, moral and legal pressure on the Saudi authorities to change their behaviour. This is precisely why a robust and effective rules-based WTO dispute settlement process is still very much needed to help the world navigate and resolve international trade issues.
The USMCA finally came into effect a few days ago, on July 1, 2020, committing the US, Canada and Mexico to the treaty provisions the three countries agreed to in the 34 chapters, four Annexes and 16 side letters that comprise the text of the Agreement. Among its many provisions is Article 19.17 (in the Digital Trade chapter) which reads, in part:
“.…no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.” (19.17.2)
In plain English this means that none of the three governments party to the Agreement will hold an internet platform (such as Google, Amazon, Facebook, YouTube, Twitter and hosts of others providing similar “interactive” services) liable for content that appears on their platform. Responsibility rests with the source of the content. Unlike a newspaper, the internet platforms are not to be considered “publishers” of the content they carry and distribute. This is sometimes referred to as “the shield”.
The text of the Agreement goes on to say that;
“No Party shall impose liability on a supplier or user of an interactive computer service on account of…any action voluntarily taken in good faith by the supplier or user to restrict access to or availability of material that is accessible or available through its supply or use of the interactive computer services and that the supplier or user considers to be harmful or objectionable” (19.17.3 a)
Translation: The platform is allowed to take down content that it considers to be “harmful or objectionable” without fear of liability. This is sometimes called “the sword”.
Does this mean that Canada and the other two USMCA partners are now no longer able to enact legislation to hold internet platforms accountable in civil law for illegal, discriminatory, racist, violent or other objectionable and harmful content that they distribute? From a literal reading of the USMCA commitment the three countries made, the short answer is “possibly yes” but from a practical real-world perspective, the answer is a clear “no”.
The inclusion of Article 19.17 was intended by US negotiators to entrench the (in)famous and controversial Section 230 of the 1996 Communications Decency Act into the USMCA, urged on by Silicon Valley and groups like the cyber-libertarian Electronic Frontier Foundation (EFF) that proclaimed that it wanted to “bake in” Section 230 into NAFTA in order to prevent Congress from making changes to it. Section 230 has become very controversial in the US for a couple of reasons. First, the “shield” aspect of the legislation has been misused by internet platforms to allow them to ignore egregious and obvious illegal content disseminated on their services, ranging from sex trafficking to revenge porn to marketing of banned weapons and more, because they are protected from civil liability for such content. US courts have allowed them invoke Section 230’s liability shield as a reason to refuse to remove such content, even when they have been well aware of its nature and even when they have monetized it by selling ads targeted at consumers attracted to the abusive material. Second, the “sword” aspect of the legislation, although little used, has been attacked by conservative commentators (and Donald Trump) when platforms, such as Twitter, have moderated or taken down objectionable content, in the most recent case false information posted by Trump about voter fraud. Giving platforms protection when removing content that was considered “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”, was the original reason for passage of the legislation more than twenty years ago.
At the time the text of the USMCA was first made public, supporters of Section 230 in Canada and the US went into raptures. University of Ottawa professor Michael Geist had been one of five Canadian signatories on a letter initiated by Santa Clara University law professor Eric Goldman to the three NAFTA negotiators urging that the new Agreement contain protection from liability for online intermediaries for third party online content, similar to Section 230. At the time the letter was sent back in early 2018, other commentators in the US warned that inclusion of blanket immunities for internet platforms in the new NAFTA would “enrich irresponsible actors and undermine the public interest.” Despite these warnings from many within the US, the negotiated draft USMCA text included Section 230-like language. When that was announced, Geist declared that what eventually became Article 19.17 was a “welcome addition” to the Agreement, and declared it meant that;
“Internet companies are not liable for the content of their users. While this does not require the creation of a legislative safe harbour, it restricts the ability for a country to create a system premised on liability for Internet companies. Moreover, the same provision excludes liability for actions taken by Internet companies to remove harmful or objectionable content on a voluntary basis.”
“USMCA Article 19.17 requires signatories to adopt Internet immunity provisions similar to Section 230….This a major development in global Internet Law–and, I think, incredibly good (and unexpected) news”)
In fact the Agreement did not require any of the Parties to the USMCA to adopt internet immunity provisions (if they didn’t already have them in law), as I clearly outlined in my blog in February last year, “Did Canada get Section 230 Shoved Down its Throat in the USMCA?”. Canada remains free to apply existing laws dealing with content on internet platforms, including those related to secondary liability. Even Michael Geist acknowledges that “this (Article 19.17) does not require the creation of a legislative safe harbour”. However, Geist was technically correct in saying that USMCA appears to restrict the ability of a USMCA signatory country to impose future liability on internet companies for allowing harmful content on their platforms. It also made it a contravention of the Agreement to impose liability on internet platforms if they remove objectionable material. That obligation applies to all three signatories to the Agreement (US, Canada, Mexico).
Thus it was with great interest that I listened to a recent podcast where Michael Geist hosted Eric Goldman to discuss this very issue, namely whether its USMCA commitments constrain Canada from holding internet platforms to greater account for the content that they disseminate. Since the initial signing of the USMCA in November of 2018, the text of the Agreement has undergone some minor revisions but what has really changed is the status of Section 230 in the US. Just prior to the conclusion of the final revisions deemed necessary to get the USMCA ratified in the Democrat-controlled House of Representatives, House Speaker Nancy Pelosi suggested that Article 19.17 be dropped because it had become so controversial in the US. The early warnings about the dangers of Section 230 blanket immunities were gaining traction. However, in the end removal of Article 19.17 was “one-last-minute-change-too-many” and the amendment was not made. The revised Agreement that was signed on December 10, 2019 included the contentious Article 19.17 language. However, in the rearguard action fought by Silicon Valley to keep Article 19.17 in the USMCA, it conceded (in a public statement issued by the Consumer Technology Association) that “Inclusion of Section 230 language in trade agreements does not stop the US from changing the law in the future should (it) choose to do so.”
Truer words were never spoken. The ink was barely dry on the Revised Protocol of Amendment for the USMCA when the US Justice Department began holding public sessions into how Section 230 should be revised. The fact that it was included as a US obligation in the USMCA was not even mentioned. More recently President Trump invoked Section 230 reform as part of his infuriated reaction to moderation of a couple of his tweets by Twitter. As a result, the US Department of Justice (DOJ) has published a paper proposing a number of areas for change. Some of these proposals address abuses of the safe harbour liability shield by platforms; others seem more designed to address Trump’s criticisms of alleged “platform censorship” (in Trump’s view, misuse of “the sword”). The point in this blog is not to analyze what changes the Administration may propose and Congress may enact to Section 230, but to highlight the fact that Article 19.17 of the USMCA is not even a speed-bump in slowing down the Administration’s momentum to modify Section 230—for better or for worse. If the EFF’s real goal in pushing the US Trade Representative’s Office to negotiate inclusion of Article 19.17 in the USMCA was more to “bake in” Section 230 as a treaty commitment so that Congress could not modify it rather than to export Section 230 rules to Canada, that tactic has been a dismal failure. This was acknowledged as much by both Geist and Goldman in their recent podcast.
In the podcast, Goldman notes that both Trump and Joe Biden have both gone on record in calling for reform or removal of Section 230, albeit for different reasons, and he assumes that the next Congress will want to amend it. Given differing views as to what needs to be fixed, it is possible that Congressional gridlock will mean that Section 230 will survive a bit longer, but its days are clearly numbered. With regard to Canada, in Goldman’s view, Canada is unlikely to enact anything like a Section 230 law even though (in his opinion) Canada’s current legal framework is not consistent with Article 19.17 commitments. His conclusion was that Canada will be out of compliance, but has no intention of enforcing the commitment.
If Canada is out of compliance (a debatable point at best), what about the US? Since both the Democrats and Republicans seem hell-bent on changing Section 230, the US will likely be the first to be out of technical compliance with the USMCA when it changes legislation to make platforms civilly liable for at least some of the content they carry, under certain conditions. For his part, Michael Geist accepted that Canada is unlikely to put forward any Section 230 legislation, but argued that Article 19.17 is nonetheless useful as a standard, and may cause Canadian officials to think twice before introducing legislation that could or would run contrary provisions agreed to in the USMCA. Goldman disabused him of the restraining effects of USMCA;
“I would just note that Congress will have no such hesitation. Congress will absolutely blast forward with efforts to tinker with Section 230 even if that would also contravene the USMCA…I don’t know who really plans to abide by it, and if no-one plans to abide by it, I don’t understand what the point was”.
I agree. What was the point? It is clear that Article 19.17 is a dead letter when it comes to constraining the ability of the governments of the US, Canada, or Mexico from holding internet platforms responsible, or at least more responsible, for the content that they allow to be disseminated. Even cheerleaders for Section 230, like Michael Geist and Eric Goldman, (both signatories on the January 2018 letter to the three North American governments urging inclusion of Section 230 immunities in the new NAFTA Agreement) are finally coming around to a more realistic view of what Article 19.17 of the USMCA actually means in terms of real-world impact. Zilch. And that’s a good thing.
Governments and legislatures (Parliament in Canada, the US Congress, the Congreso de la Union in Mexico) are not going to allow themselves to be handcuffed by an outdated law that has been misused by internet platforms over the years to evade their responsibility to take down and moderate harmful content just because of some ambiguous wording in the new NAFTA.
I think it is appropriate to post this blog on Canada Day, July 1, the day that marks Canada’s gradual transition from colony to nation, because it sheds light on the struggle that the new dominion faced in the years after Confederation in 1867 to assert its political independence from Britain, the imperial power and its economic independence from its powerful neighbour, the United States.
This is a complex story of book piracy in the 19th century and how this became a factor in Canada’s search for identity and full political independence. It features a Canadian “pirate publisher” who, most famously, printed unauthorized editions of Mark Twain’s Adventures of Tom Sawyer and sold them by mail order across the border to American readers before the author had published his work in the US. But it is also a story of American publishers pirating British works, notably Charles Dickens, and British piracy of US authors. In fact, since in those days it was legal to publish without authorization the works of non-nationals (copyright applied only to residents of the country where the work was first published), one has to question whether this was true piracy. In the end international book piracy was sorted out through the establishment of the Berne Convention in 1886 and passage of reciprocal copyright legislation (the Chace Act) in the US in the 1890s. For Canada, this is an illustrative example of the challenges the new nationfaced in developing its own publishing industry and national literary identity, handicapped as it was by its semi-colonial/semi-independent status and caught between a growing economic colossus in the US and Imperial administrators in London.
This is an account of how the Canadian publishing industry found itself caught in the crossfire of the British-US copyright wars of the 19th century, resulting in an underdeveloped publishing sector that until recent years was seen by many to have held back the blossoming of Canadian literature and Canadian authors. It is a story of book piracy on both sides of the Canada-US border, and both sides of the Atlantic. The issue has been well researched and documented, notably by Prof. Eli MacLaren of McGill University in his book “Dominion and Agency”, (University of Toronto Press, 2011), but I think it is fair to say that this specialized topic is unknown to most readers of this blog. So let’s pull aside the curtain.
Today, Britain, the US and Canada are all pretty much on the same page when it comes to copyright protection, especially now that Canada will soon be aligning its term of protection with that of the UK, the EU and the US, as a result of a commitment made in the renegotiation of NAFTA, the North American Free Trade Agreement now labelled, in the US, the USMCA (US-Mexico-Canada Agreement). Coincidentally the USMCA comes into effect today, July 1, although Canada’s commitment to extend its term of copyright protection will not take effect for 30 months.
Although the US is still not completely happy with Canada’s copyright regime, judging by the comments of the US copyright industry association, the IIPA (International Intellectual Property Alliance) in its recent submission to the US Trade Representative’s annual review of the IP standards in place in various foreign countries, all three countries are nevertheless members of the 1886 Berne Convention, (to which 178 countries have acceded) and are signatories to the Trade Related Intellectual Property (TRIPS) commitments of the World Trade Organization (WTO) and other international conventions relating to copyright. Mind you, the US did not join Berne until 1989 and Canada was initially a reluctant participant, becoming a member involuntarily only because it was a part of the British Empire at the time the Convention came into being. Today, because of Berne, British, US and Canadian copyrighted works are afforded national treatment in each other’s countries, (although in some instances foreign copyrights get better than national treatment in the US because they are afforded Berne Convention privileges which are better than those provided to US copyright holders by US legislation.)
Back in the 19th century this was not the case. While Britain and the US had similar conceptions of copyright, coming from the wellsprings of the 1710 Statute of Anne in Britain and the 1790 Copyright Act in the United States, copyright protection was initially provided to only domestic authors and printers. Until the passage in the US of the International Copyright Act (aka the Chace Act) in 1891, copyright protection was provided in the United States only to US residents—and then only to those who registered their works in the approved fashion, and had the works printed in the US. In Britain too, initially copyright protection was restricted to British subjects, a definition that included residents of the Empire (like Canada at the time) and, as in the US, there were registration and publication requirements. However, while Canadian authors had the benefit of copyright protection throughout the British Empire, the works had to be registered (a copy deposited at Stationer’s Hall) and printed in London. Imperial copyright was thus a great boon to the London publishers who had an effective monopoly on printing and distributing British and colonial works throughout the Empire, but it did little to help promote Canadian publishing. It was an uneven playing field that favoured the imperial power.
This situation was not rectified until Canada and the other parts of the Empire became members of the Berne Convention in 1886. An example of the way in which the laws were tilted to British advantage was brought home forcefully in the 1830s when pirate editions of one of the earliest Canadian works, The Clockmaker by Thomas Chandler Haliburton, were printed in London with no regard to the Canadian publisher. (MacLaren, 26). This was all perfectly legal at the time.
The result of this situation where protection was afforded only to domestic authors and publishers led to widespread unauthorized printing of British works in the US, about which Charles Dickens famously complained during his visit to the United States in 1842, without getting much sympathy. He was surprised to be attacked for his “mercenary” attitude. Dickens was by no means the only English author whose work was regularly pirated in the US. English writers were popular in the US market and US publishing houses, while required to pay royalties to American authors, had a business model of producing cheap unauthorized editions of British works. American writers, such as Edgar Alan Poe, suffered the same fate in the UK, but given the size of the American market and the number of well-known British authors (the “must-haves” of the 19th century) who were popular in the US, the main problem lay on the American side of the Atlantic. In the end the problem was partially dealt with by US printers requesting and paying a “courtesy of the trade” fee to the main British publishing houses for advance copies of about-to-be released books. This gave them a commercial advantage over other American reprinters by getting their editions to the market first. This fee took the place of royalty payments, but was still deemed unsatisfactory by many British authors.
But what did all this mean for Canada? The unauthorized US editions of British works were blocked from entry into retail trade in Britain, where customs inspection was relatively easy given the maritime nature of trans-Atlantic trade, but it was much more difficult to prevent the US copies from entering Canada across an ill-marked and lightly patrolled land border. As a result, Canada was caught in the middle of this copyright war.
As a country subject to imperial copyright, it was obliged to protect the rights of British authors, but importing expensive books published in London was not what the residents of a frontier colony wanted. Just across the border in the US it was possible to buy the latest books by the best English authors (i.e. the unauthorized American printed editions) at a fraction of the cost of importing them from Britain. Needless to say there was a brisk cross-border trade and Canadian booksellers regularly sourced their books in New York, Boston and in other US cities. So prevalent was this practice that in 1847 the British government recognized the inevitable. It regularized the cross-border Canada-US book trade with the Foreign Reprints Act. This piece of legislation allowed Canadians to import the unauthorized US editions of British works, subject to the payment of a levy that would be remitted to the British Board of Trade for distribution to British rights-holders. It was a sound idea in principle, combining practicality on the ground with the need to respect British copyright law.
The problem was that it didn’t work. Canadian border officials (who were not experts on literature and who had to work from outdated and incomplete lists) had difficulty in determining which works printed in the US were subject to the special duties, and since the colonial government derived no benefit from the revenue–which was to be remitted directly to Britain–enforcement was lax. Very little revenue was actually collected. The Canadian printing industry would have preferred an alternative that would have given them the right to print British works in Canada (under a compulsory licence) and remit royalties to Britain, but the imperial government had decided on the import licence scheme. As a result, the Canadian market came to be dominated by unauthorized US published versions of British works with almost no revenue raised for British copyright holders.
Meanwhile Canadian printers were lobbying the British government to find a way to supply the domestic Canadian market with works by English writers from within Canada, rather than importing the unauthorized US editions of British works. In effect, Canadian pirates wanted to take the Canadian market from American pirates. In 1867 the various British North American colonies came together to establish the Dominion of Canada (as it was called at the time), which was to be largely self-governing. Regulation of copyright was one of the powers given to the Dominion government. In 1872 the Canadian government passed legislation that would have allowed Canadian publishers to publish unauthorized editions of British works, subject to a compulsory licensing fee. It was argued that this could be much better enforced than the import levy on US published books of British authors and would result in more revenues for British rights-holders, while promoting publishing in Canada at the expense of US publishers.
The legislation was passed by Parliament but disallowed by the Governor-General, the Queen’s Representative whose assent was necessary to allow legislation to come into effect. The same system of royal assent exists today except that by convention the Governor-General will not disallow duly passed legislation. In the 1870s that was not the case and the royal prerogative exercised by the Governor-General was subject to influence from London. Thus Canada’s publishers found that their interests were thwarted by Canada’s semi-colonial status as a result of the influence of the London publishers and the British government. The former wanted to protect their market in Canada, while the latter wanted to achieve a reciprocal copyright treaty with the United States, and was concerned that if Canadian publishers could produce cheap reprints of British works, as was occurring in the US, and export these books south of the border, this would complicate negotiations toward a Britain-US Reciprocal Copyright Treaty.
In 1875 a Canadian Copyright Act was finally passed and given royal assent with British approval. It created a system of Canadian copyright, giving rights to Canadian authors and publishers in the Canadian market. However, as subsequent legal cases were to determine, the existence of Canadian copyright did not negate imperial copyright. Thus in cases where a Canadian publisher, such as the Belford Brothers, began independently producing unauthorized Canadian editions of British works, on the basis that British copyright no longer applied, they were struck down by the courts.
The Belfords then proceeded to pirate US authors in Canada, notably Mark Twain (Samuel Clemens). Twain’s The Adventures of Tom Sawyer was first published in Britain to obtain imperial copyright but before the US edition could be printed, the Belfords printed a pirated version in Canada from the British edition, and sold over 100,000 copies in the US, largely via mail order, causing Twain significant financial loss. Twain was particularly incensed by what he called the “Canadian thieves” and wrote, “I can’t trust any more Canadians after my late experience. I suppose they are all born pirates.” In an attempt to secure Canadian copyright for a subsequent book that was being granted imperial copyright through publication in London, he took up temporary domicile in Montreal. However, since US law required that an author be a permanent resident to qualify for US copyright protection, Canada applied the rule reciprocally and disallowed Twain’s claim. Twain’s frustration with the Canadian pirates led to his advocacy for recognition of international copyright by the United States, which was to occur in 1891.
Because it was illegal for Canadian publishers to pirate British works whereas publishers in the US could do so legally until 1891, the argument has been made that this stunted the Canadian publishing industry and made the development of a national literature more difficult. It is worth noting that Canadian publishers like the Belfords showed no lack of ingenuity in pirating US authors, and for a time enjoyed financial success. (They later went bankrupt and moved to Chicago where they established another publishing enterprise).
By the same token, there is no doubt that the pirating of British works by US publishers contributed to the initial growth of the US publishing and printing industry. This industry became a powerful political lobby which resisted changes to its business model. At the same time, the dominance of pirated British works in the US market in the 19th century arguably made it more difficult for American writers to flourish. As stated by the noted American historian Arthur M. Schlesinger in his book “The Rise of the City, 1878-1898”, (New York, MacMillan, 1933, p.252), “So long as publishers […] could reprint, or pirate, popular English authors without payment of royalty, and so long as readers could buy such volumes far cheaper than books written by Americans, native authorship remained at a marked disadvantage”.
While American literature grew in stature during most of the 19th century, it flowered after the International Copyright Act (Chace Act) was passed in the US in 1891. That legislation provided for reciprocal recognition of copyright between the United States and four entities; Britain and the British Empire, Switzerland, Belgium and France. While this allowed for British and Canadian works to be protected in the US, such protection was contingent on certain measures that protected the US printing industry. To obtain the benefits of US copyright protection, the work had to be printed from type set on American soil and deposited at the Library of Congress before being published elsewhere. (MacLaren, 11, 109). This protectionism mirrored earlier British protection of its printing industry. After 1891 however, US works were not subjected to similar conditions in Canada. Their copyright was protected without any requirement to print in Canada.
Thus Canadian publishers could not serve the US market with unauthorized reprinted British works, and they could no longer produce pirated editions of US works for the Canadian (or US) market. It was equally difficult for Canadian publishers to obtain authorization to reprint British works in Canada since British authors and publishing houses had little incentive to print separate Canadian editions because imperial copyright prevailed in Canada. In fact, they often granted “North American rights” to US publishers whom they licensed. Often this was in response to demands from US publishers who wanted to shut down potential Canadian competitors and keep the Canadian market for themselves. Thus the grant of reciprocal copyright protection between Britain and the US did little for Canadian publishing.
Subsequent Canadian legislation passed in 1889 would have required publication in Canada as a condition for obtaining Canadian copyright by instituting the earlier proposed compulsory licence for reprinting of British copyright works in Canada if the British publisher did not arrange for the publication of a Canadian edition within 30 days of release in Britain. This 30 day period was to allow British publishers to use the original plates and not have to invest in duplicates (as they were later required to do in order to obtain US copyright under the Chace Act). However, like the 1872 Bill, the 1889 Canadian Copyright Bill was killed by the British government through the office of the Governor-General. As archivist and historian Meera Nair has described it;
“The British government’s desire for harmony with the United States, its conformity to international regulations of the day, and its penchant for uniformity throughout the Empire, took precedence over any legislation designed to meet Canada’s particular needs.”
To sum up, in the latter half of the 19th century Canada was coming into being as a nation, finding its way and trying to develop a national consciousness. Its semi-colonial status dictated that its interests came second to those of the imperial power, Britain, in issues that ranged from foreign policy and boundary disputes to copyright. Its economic relationship with its larger North American neighbour, the United States, meant that it was vulnerable to US market forces, such as the supply of cheaper unauthorized versions of popular British works that supplied the Canadian market. Owing to its status as a dependent state within the British Empire, it was unable to follow the US model of producing these works without payment of royalties, which in the US had resulted in the establishment of a robust publishing industry initially built largely on distribution of pirated editions. Notwithstanding these obstacles, Canadian publishers played their own version of the game, pirating US authors such as Mark Twain, even exporting unauthorized copies to the US market.
The eventual resolution of the US-British copyright wars through the passage in the US of the 1891 International Copyright Act strengthened the rights of authors but did little to help Canadian publishers. In a supreme irony, prior to the US joining the Berne Convention in 1989, many US publishers published first in Canada (through Canadian subsidiaries of US publishing houses) in order to obtain the benefit of the international copyright protection afforded by the Convention since Canada was a member of Berne and the US was not. This became known as the “back door to Berne”.
Despite the many obstacles it has faced, today Canadian literature is thriving and Canada has a small independent publishing industry, albeit one that is still economically challenged. Copyright protection in the three countries has been largely harmonized. While many well-known Canadian writers are represented by British or American publishers, this does not seem to have stopped the development of Canadian literature (“CanLit”).
Does a country need a strong national publishing industry in order for local creativity to blossom and thrive? It no doubt helps, but quality writing seems to get published regardless of the source. Does the fact that Canada was not easily able to develop a domestic publishing industry (based initially on pirating the works of others) mean that its creative development was stunted? Possibly, but impossible to prove. Meera Nair has quoted writer and university professor Nick Mount as attributing the explosion of CanLit to post WW2 affluence and an explosion of Canadian self-awareness brought about by the centenary of Confederation in 1967. If that is true, then the 19th century struggles of Canadian publishers may not be all that relevant to Canadian identity at the end of the day. What is clear is that in the area of copyright and publishing, imperial (British) economic and political interests prevailed over those of the nascent Canadian publishing industry, an inevitable outcome of Canada’s semi-colonial status at the time.
The story of how Canada struggled to develop its own “made in Canada” copyright policy in order to establish a domestic publishing industry without being crushed by British or US publishers is an interesting and little known aspect of 19th Canadian political history. As for Canadian literature, it took a century to develop, but develop it did despite the games played by publishers on both sides of the Atlantic.
I am indebted to Dr. Meera Nair, copyright historian, for reviewing this blog post and clarifying and correcting a number of facts. The interpretations and conclusions of the blog are, however, my own.