This is the question that Peter Grant chose to highlight when reviewing my book, In Defence of Copyright (see below). It is a question rooted in both our history and current practices.
Sometimes when I look at the efforts of creators and rights-holders in Canada to protect, manage and exploit their works, I am tempted to agree with the question, although it would, on balance, be an unfair characterization. I have in the past written about the growing proclivity of some Canadians to access the national sport while evading the need to pay the providers of the sports programs they want to watch, (“Surprise! Canadians Like to Pirate NHL Games–But Dynamic Site Blocking Orders May Soon Put a Stop to the Free Rides”), but most Canadians tend to be pretty law-abiding. One of the problems in the area of copyright infringement, however, is the unfortunate cloaking of content theft with euphemisms such “file sharing” or the even more “romantic” concept of piracy. As I noted in Chapter 4 of the book, with regard to piracy;
“The primary definition of piracy…has to do with seaborne corsairs plundering ships and coastal towns. Maritime piracy was a major scourge from the seventeenth through nineteenth centuries and pirates were feared and detested. The public image of pirates began to change with the publication of Robert Louis Stevenson’s “Treasure Island” and the complex character of Long John Silver, immortalized in the 1951 Disney film of the same name starring Robert Newton. (Aargh, matey). More recently Captain Jack Sparrow of the Pirates of the Caribbean franchise has made being a pirate even more respectable with his cunning, swashbuckling character. Through these characterizations, piracy has taken on an almost Robin Hood like aspect. A good example of the “brand image” of piracy is the proud adoption of the name “The Pirate Bay” by the notorious Swedish content piracy site.”
The use of the term piracy to describe the theft of intellectual property goes back to the 17th century (even before the enactment of the first copyright law, the 1710 Statute of Anne) when London booksellers used the term to describe competitors who reprinted their works without authorization. But piracy wreaks enormous damage on creators and content industries. In 2019, the US Chamber of Commerce estimated that it cost the US economy between 230,000 and 560,000 jobs and between $47.5 billion and $115.3 billion in reduced gross domestic product (GDP) each year. Whether “piracy” is the best term to use to describe this theft of content and diversion of revenues, for better or worse the industry itself has adopted the term.
Whether Canadians are content pirates now can be debated, but that was the epithet thrown at them in the 19th century by no less an author than Samuel Clemens, aka Mark Twain. Clemens complained that Canadian publishers were taking his works without permission or payment and reprinting them (in Canada). In actual fact, that practice was perfectly legal at the time as US copyright protection for US works did not extend to the Canadian market, and vice versa. This is why Charles Dickens complained so vociferously about American publishers “pirating” his works by printing unauthorized editions for sale in the US. What was not legal, however, was to take unauthorized Canadian editions of US works and export them to the US, yet this was a fairly common practice in the 19th century in some Canadian publishing circles. In the book, I discuss the vagaries of how copyright law was originally applied and how Canada came to be regarded by some as a hotbed of piracy. It is this point that Peter Grant has picked up on in his review, which follows.
“Are Canadians Born Pirates?”
A Review of In Defence of Copyright, by Hugh Stephens (Cormorant Books, 2023),
by Peter S. Grant
Hugh Stephens may now be best known from his weekly blog on copyright and communications policy issues, which he has been writing for over six years. But before that he had a long career in the Canadian foreign public service as well as working for a Hollywood media company in the far East. In both contexts, he acquired an admirable depth of knowledge of how intellectual property is used and abused.
His new book, In Defence of Copyright, builds on this experience and provides a cornucopia of stories and insights from the world of copyright. For anyone with a desire to understand the current issues in copyright, this book is a must-read. It also provides a fascinating excursion through the history of the development of protection for the creators of intellectual content.
Canada has an interesting history in this area, as Stephens notes. At one time Canada was a source of unauthorized editions of The Adventures of Tom Sawyer, leading Mark Twain to complain “I can’t trust any more Canadians after my late experience. I suppose they are all born pirates.” But with its later adherence to the Berne Convention, Canada eventually embraced the world of copyright protection.
And more recently, in fact, the Canadian courts have been at the forefront of protection, by supporting novel forms of site-blocking. As Stephens explains, “this allows copyright holders to shift targets as the pirates duck and weave, constantly altering the online location of their illicit sports streams.” Stephens has great fun in exploring the application of copyright law to new technologies and new forms of expression.
In Defence of Copyright covers a wide range of subjects. Apart from the problem of piracy, it addresses the historical roots of copyright, its limitations and exceptions, and contested uses, including conflicting interpretations around legal uses of a copyrighted work. Stephens also addresses the challenges to copyright posed by artificial intelligence. As he points out, if there is no human attribution to works created through AI, the foundations of copyright will be severely tested.
Stephens concludes his book with entertaining stories about copyright from his weekly blog. These add a delightful coda to his main message. Taken together, his book provides an excellent introduction to the field of copyright protection. It should be read not only by creators who seek to protect their works, but by everyone interested in public policy in a fast-developing field.
(Peter S. Grant, a retired communications lawyer, teaches Broadcasting and the Internet at the Faculty of Law, University of Toronto. He is the author of Changing Channels: Confessions of a Canadian Communications Lawyer).